As filed with the Securities and Exchange Commission on April 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WESTERN RESOURCES, INC.
(Exact name of Registrant as specified in its charter)
Kansas 48-0290150
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
-------------------------
818 South Kansas Avenue
Topeka, Kansas 66612
(785) 575-6300
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
William B. Moore
Executive Vice President,
Chief Financial Officer and Treasurer
Western Resources, Inc.
818 South Kansas Avenue
Topeka, Kansas 66612
(785) 575-6300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------------
Copies of all communications to:
Richard D. Terrill, Esq. Gary W. Wolf, Esq.
Executive Vice President Cahill Gordon & Reindel
General Counsel and Corporate Secretary 80 Pine Street
Western Resources, Inc. New York, New York 10005
818 South Kansas Avenue (212) 701-3000
Topeka, Kansas 6612
(785) 575-6300
-------------------------
Approximate date of commencement of proposed sale to public: From time to time
after this Registration Statement becomes effective when warranted by market
conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, 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. |_|
If this form is a post-effective amendment filed pursuant to 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 this form is a post-effective amendment filed pursuant to Rule 462(d) 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 the 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
======================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount To Be Offering Price Aggregate Registration
Securities To Be Registered Registered Per Security (1) Price (1) Fee
- ----------------------------------------------- ---------------- ------------------ ------------------ ---------------
<S> <C> <C> <C> <C>
First Mortgage Bonds........................ $500,000,000 100% $500,000,000 $132,000
======================================================================================================================
</TABLE>
(1) Estimated solely for purposes of computing the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933, as amended.
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.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration 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.
PROSPECTUS Subject to Completion, dated April 28, 2000
$500,000,000
Western Resources, Inc.
First Mortgage Bonds
We may offer from time to time our first mortgage bonds (which we refer to
as the "Securities"), which may be offered separately or together in one or more
series, up to an aggregate public offering price of $500,000,000. The Securities
will be offered at individual prices and on terms to be determined in light of
market conditions at the time of the offering.
The specific terms of the Securities in respect of which this prospectus is
being delivered will be set forth in one or more prospectus supplements.
We are a Kansas corporation organized in 1924. Our principal executive
offices are located at 818 South Kansas Avenue, Topeka, Kansas 66612, and our
telephone number is (785) 575-6300.
-----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-----------------------
The date of this prospectus is , 2000 .
<PAGE>
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TABLE OF CONTENTS
Page
Where You Can Find More Information.......................................1
Forward-Looking Statements................................................3
The Company and its Subsidiaries..........................................4
Ratio of Earnings to Fixed Charges........................................5
Use of Proceeds...........................................................6
Description of New Bonds..................................................7
Book-Entry Securities....................................................11
Plan of Distribution.....................................................13
Legal Opinions...........................................................13
Experts..................................................................13
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended. The Exchange Act file number for our SEC
filings is 1-3523. You may read and copy any document we file at the following
SEC public reference rooms:
<TABLE>
<CAPTION>
<S> <C> <C>
Judiciary Plaza 500 West Madison Street 7 World Trade Center
450 Fifth Street, N.W. 14th Floor Suite 1300
Room 1024 Chicago, Illinois 60661 New York, New York 10048
Washington, D.C. 20549
</TABLE>
You may obtain information on the operation of the public reference room in
Washington, D.C. by calling the SEC at 1-800-SEC-0330.
We file information electronically with the SEC. Our SEC filings are
available from the SEC's Internet site at http://www.sec.gov, which contains
reports, proxy and information statements, and other information regarding
issuers that file electronically. We maintain an Internet site at
http://www.wr.com, which also contains the documents we file electronically with
the SEC.
Our annual, quarterly and special reports, proxy statements and other
information may also be inspected at the office of the New York Stock Exchange,
20 Broad Street, New York, New York 10005, on which certain of our securities
are traded.
The SEC allows us to "incorporate by reference" certain documents we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information in the documents incorporated
by reference is considered a part of this prospectus, and information in the
documents 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 we will make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act.
o our Annual Report on Form 10-K for the year ended December 31, 1999,
as amended by an amendment on Form 10-K/A dated and filed on April 3,
2000
<PAGE>
We will provide a copy of the documents we incorporate by reference, at no
cost, to any person who receives this prospectus, including any beneficial
owner. To request a copy of any or all of these documents, you should write or
telephone us at the following address and telephone number:
Western Resources, Inc.
818 South Kansas Avenue
Topeka, Kansas 66612
Attention: Investor Relations
Telephone No.: (785) 575-6300
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FORWARD-LOOKING STATEMENTS
This document includes and incorporates "forward-looking statements"
intended to qualify for the safe harbors from liability established by the
Private Securities Litigation Reform Act of 1995. These forward-looking
statements can generally be identified by the context of the statement and will
include words such as we "believe," "anticipate," "expect" or words of similar
import. Similarly, statements that describe our future plans, objectives or
goals are also forward-looking statements. Such statements address future events
and conditions concerning capital expenditures, earnings, litigation, rate and
other regulatory matters, the outcome of Protection One accounting issues
reviewed by the SEC staff as disclosed in previous filings, possible corporate
restructurings, mergers, acquisitions, dispositions, liquidity and capital
resources, compliance with debt covenants, interest and dividends, the impact of
Protection One's financial condition on our consolidated results, environmental
matters, changing weather, nuclear operations, ability to enter new markets
successfully and capitalize on growth opportunities in nonregulated businesses,
events in foreign markets in which investments have been made, accounting
matters, and the overall economy of our service area. What happens in each case
could vary materially from what we expect because of such things as electric
utility deregulation, including ongoing municipal, state and federal activities;
future economic conditions; legislative and regulatory developments; our
regulatory and competitive markets; and other circumstances affecting
anticipated operations, sales and costs.
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THE COMPANY AND ITS SUBSIDIARIES
Western Resources, Inc. is a publicly-traded consumer services company,
incorporated in 1924. Our primary business activities are providing electric
generation, transmission and distribution services to approximately 628,000
customers in Kansas and providing monitored services to approximately 1.6
million customers in North America, the United Kingdom and continental Europe.
Rate regulated electric service is provided by KPL, a division of the company,
and Kansas Gas and Electric Company (KGE), a wholly-owned subsidiary. Monitored
services in North America are provided by Protection One, Inc. (Protection One),
a publicly traded, approximately 85%-owned subsidiary. Monitored services in the
United Kingdom and continental Europe are provided by subsidiaries of Westar
Capital, Inc. (Westar Capital), a wholly owned subsidiary. KGE owns 47% of Wolf
Creek Nuclear Operating Corporation, the operating company for Wolf Creek
Generating Station. In addition, through our 45% ownership interest in ONEOK,
Inc. (ONEOK), natural gas transmission and distribution services are provided to
approximately 1.4 million customers in Oklahoma and Kansas. Our investments in
Protection One and ONEOK are owned by Westar Capital.
On March 28, 2000, our board of directors approved the separation of our
regulated electric utility businesses and our non-electric utility businesses.
The separation is currently expected to be effected through an exchange offer to
be made to our shareholders in the third quarter of 2000. The exchange ratio
will be described in materials furnished to shareholders upon commencement of
the exchange offer. The impact on our financial position and operating results
cannot be known until the exchange ratio is determined. We expect to complete
the separation in the fourth quarter of 2000, but no assurance can be given that
the separation will be completed. For further information, see our Current
Report on Form 8-K filed with the SEC on March 29, 2000.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratios of earnings from continuing
operations to fixed charges for each of the periods indicated:
<TABLE>
<CAPTION>
Year Ended December 31,
1995 1996 19971 19982 19993
---- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of earnings from continuing operations
to fixed charges .......................... 2.41x 2.16x 4.31x 1.21x .88x
</TABLE>
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1 During 1997, we sold our Tyco International Ltd. stock investment and
realized a pre-tax gain of $864 million.
2 During 1998, we recorded a non-cash pre-tax expense of $98.9 million to
exit the international power development business.
3 Our earnings in 1999 were $45.1 million less than our fixed charges. During
1999, we recorded a non-cash pre-tax expense of $76.2 million to recognize
the impairment of marketable securities. Please see the other information
about our results that
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USE OF PROCEEDS
The proceeds from the sale of the Securities will be used to pay off
indebtedness and for general corporate purposes, including capital investments.
Please see our discussion of Liquidity and Capital Resources in our Annual
Report on Form 10-K for the year ended December 31, 1999 (as amended) for more
details on our financing needs. We will provide further information concerning
the use of proceeds of the Securities in the prospectus supplement relating to
them. The balance of funds required for these purposes is expected to be
obtained principally from internal cash generation and the issuance of other
debt or equity securities.
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DESCRIPTION OF NEW BONDS
The first mortgage bonds are to be issued under and secured by the Mortgage
and Deed of Trust, dated July 1, 1939, between Western Resources, Inc. and
Harris Trust and Savings Bank, as Trustee (the "Trustee"), as supplemented and
amended by thirty-three supplemental indentures and as to be supplemented and
amended by a new supplemental indenture or indentures providing for the series
of first mortgage bonds to which this Prospectus relates (the original mortgage
as so supplemented and amended we will refer to as the "Mortgage" in the
following discussion). We will refer to the first mortgage bonds we plan to
issue pursuant to the Registration Statement of which this Prospectus is a part
as the "New Bonds" and to all the first mortgage bonds issued or issuable under
the Mortgage as the "Bonds." The Mortgage has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
What follows is a brief summary of certain provisions contained in the
Mortgage.
General
The New Bonds will be issued only in the form of registered bonds without
coupons in denominations of $1,000 and multiples thereof. The New Bonds will be
issued in the form of one or more fully registered global certificates
representing the aggregate principal amount of the New Bonds and will be
deposited with The Depository Trust Company ("DTC"). See "Book-Entry
Securities."
The prospectus supplement for each series of New Bonds will set forth the
issue date, maturity date, interest rate and interest payment dates applicable
to such series.
Subject to certain exceptions provided in the Mortgage, interest is payable
at either the office of the Trustee in Chicago, Illinois, or of the Paying
Agent, Harris Trust and Savings Bank, New York, New York, to the persons in
whose names the New Bonds are registered at the close of business on the tenth
day prior to the interest payment date (the "Record Date") or, at our option,
may be paid by checks mailed to those persons at their registered addresses.
Principal of the New Bonds is to be payable at either of our agencies.
There will be no improvement or maintenance fund for the New Bonds. The
applicable prospectus supplement will set forth any sinking fund provided for a
particular series of New Bonds.
Redemption Provisions
The prospectus supplement for each series of New Bonds will set forth the
redemption provisions, if any, of the New Bonds.
Issuance of Additional Bonds
Additional Bonds ranking equally with the Bonds of other series then
outstanding may be issued having dates, maturities, interest rates, redemption
prices and other terms as may be determined by our board of directors.
Additional Bonds may be issued in principal amounts not exceeding the sum of:
(1) 60% (so long as Bonds issued prior to January 1, 1997 remain
outstanding, and thereafter 70%) of the net bondable value of property
additions not subject to an unfunded prior lien;
(2) the principal amount of Bonds retired or to be retired (except out
of trust moneys); and
(3) the amount of cash deposited with the Trustee for such purpose,
which may thereafter be withdrawn upon the same basis that additional Bonds
are issuable under (1) or (2) above.
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Additional Bonds may not be issued on the basis of property additions
subject to an unfunded prior lien. (Mortgage, Article III; Twenty-Eighth,
Twenty-Ninth, Thirtieth, Thirty-First and Thirty-Second Supplemental Indentures,
Article V.)
As of March 31, 2000, we had approximately $386.9 million of net bondable
property additions not subject to unfunded prior liens enabling us to issue
approximately $232.1 million principal amount of additional Bonds on such date.
As of March 31, 2000, we may also issue up to approximately $200.0 million of
additional Bonds on the basis of Bonds which have been retired. The New Bonds
may be issued against the principal amount of Bonds retired or to be retired.
In addition to the restrictions discussed above, so long as Bonds issued
prior to January 1, 1997 remain outstanding, additional Bonds may not be issued
unless our unconsolidated net earnings available for interest, depreciation and
property retirements for a period of any 12 consecutive months during the period
of 15 calendar months immediately preceding the first day of the month in which
the application for authentication and delivery of additional Bonds is made
shall have been not less than the greater of two times the annual interest
charges on, or 10% of the principal amount of, all Bonds then outstanding, all
additional Bonds then applied for, all outstanding prior lien bonds and all
prior lien bonds, if any, then being applied for. Bonds cancelled at or prior to
the time application is made for the issuance of New Bonds are not deemed to be
outstanding for purposes of calculating interest charges in determining whether
the net earnings test is met for the issuance of additional Bonds. Bonds or
prior lien bonds for which moneys sufficient for the payment thereof have been
deposited are not considered outstanding for this purpose.
The net earnings test referred to in the previous paragraph need not be
satisfied to issue additional Bonds:
o on the basis of property additions subject to an unfunded prior lien
which simultaneously will become a funded prior lien, if application
for the issuance of the additional Bonds is made at any time after a
date two years prior to the date of the maturity of the Bonds secured
by the prior lien and
o on the basis of the payment at maturity of Bonds theretofore issued by
us, or the redemption, conversion or purchase of Bonds after a date
two years prior to the date on which those Bonds mature.
Based on our results for the year ended December 31, 1999, and giving
effect to the maturity of $75 million principal amount of Bonds on March 1,
2000, we could issue approximately $416 million principal amount of additional
Bonds (assuming an interest rate of 9 1/2%, without giving effect to the
issuance of the New Bonds offered hereby). (Mortgage, Article III, Sections 3,
4, and 6; Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First and Thirty-Second
Supplemental Indentures, Article V.) We have reserved the right to amend the
Mortgage to eliminate the foregoing requirement. See "Modification of the
Mortgage."
Release and Substitution of Property
The Mortgage provides that, subject to various limitations, property may be
released from the lien thereof upon the basis of cash deposited with the
Trustee, Bonds or purchase money obligations delivered to the Trustee, prior
lien bonds delivered to the Trustee, or unfunded net property additions
certified to the Trustee. (Mortgage, Article VII.)
The Mortgage also in effect permits the withdrawal of cash against the
certification to the Trustee of gross property additions at 100%, or the net
bondable value of property additions at 60% (so long as Bonds issued prior to
January 1, 1997 remain outstanding, and thereafter 70%), or the deposit with the
Trustee of Bonds
8
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we have acquired. (Mortgage, Article VIII; Sections 1-3; Twenty-Eighth,
Twenty-Ninth, Thirtieth, Thirty-First and Thirty-Second Supplemental Indentures,
Article V.)
The Mortgage contains special provisions with respect to the release of all
or substantially all of our gas and electric properties. (Twenty-Eighth,
Twenty-Ninth, Thirtieth, Thirty-First and Thirty-Second Supplemental Indentures,
Article IV, Sections 2 and 3.) We have reserved the right to amend the Mortgage
to change the release and substitution provisions. See "Modification of the
Mortgage."
Priority and Security
In the opinion of Richard D. Terrill, Esq., our General Counsel, the New
Bonds will be secured, equally and ratably with all of the Bonds now outstanding
or hereafter issued under the Mortgage, by the lien on substantially all of our
fixed property and franchises purported to be conveyed by the Mortgage, subject
to the exceptions referred to below, to certain minor leases and easements,
permitted liens and to the exceptions and reservations in the instruments by
which we acquired title to our property and to the prior lien of the Trustee for
compensation, expenses and liability.
In the opinion of Mr. Terrill, the Mortgage constitutes a lien on
after-acquired property of the character intended to be mortgaged property.
Excepted from the lien of the Mortgage are:
o cash and accounts receivable;
o contracts or operating agreements;
o securities not pledged under the Mortgage;
o electric energy, gas, water, materials and supplies held for
consumption in operation or held in advance of use for fixed capital
purposes; and
o merchandise, appliances and supplies held for resale or lease to
customers.
There is further expressly excepted any property of any other corporation,
all the securities of which may be owned or later acquired by us. (Granting
Clauses of the Mortgage.) The lien of the Mortgage does not apply to property of
KGE so long as KGE remains our wholly owned subsidiary, to the stock of KGE
owned by us or to the stock of any of our other subsidiaries.
The Mortgage permits our consolidation or merger with, or the conveyance of
all or substantially all of our property to, any other corporation; provided,
that the successor corporation assumes the due and punctual payment of the
principal and interest on the Bonds of all series then outstanding under the
Mortgage and assumes the due and punctual performance of all the covenants and
conditions of the Mortgage. (Mortgage, Article XII, Section 1.)
Modification of the Mortgage
The Mortgage may be modified or altered, subject to our rights and
obligations and the rights of holders of Bonds, by the written consent of the
holders of at least 60% in principal amount of the Bonds, and, if the rights of
one or more, but less than all, series of Bonds then outstanding are to be
affected by action taken pursuant to such consent, then also by consent of the
holders of at least 60% in principal amount of each series of Bonds so affected.
No modification or alteration may be made which will permit the extension of the
time or
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times of payment of the principal of or interest on any Bond or a reduction in
the rate of interest thereon, or otherwise affect the terms of payment of the
principal of or interest on any Bond or a reduction in the rate of interest
thereon or reduce the percentages required for the taking of any action
thereunder. Bonds owned by us or any affiliated corporation are excluded for the
purpose of any vote, determination of a quorum or consent. (Mortgage, Article
XV; Section 6; Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First and
Thirty-Second Supplemental Indentures, Article V, Sections 3 and 4.)
The Mortgage also provides that without the consent of any holder of any
Bond issued thereunder, the right of such holder to receive payment of the
principal of and interest on such Bond, on or after the respective due dates
expressed in such Bond, or to institute suit for the enforcement of any payment
on or after such respective dates shall not be impaired or affected. (Mortgage,
Article XXII, Section 2.)
We have reserved the right subject to appropriate corporate action, but
without the consent or other action of holders of Bonds of any series created
after January 1, 1997, to make such amendments to the Mortgage to permit, unless
an event of default shall have happened and be continuing, or shall happen as a
result of making or granting an application,
(1) the release from the lien of the Mortgage any mortgaged property if
our fair value of all of the property constituting the trust estate
(excluding the mortgaged property to be released but including any
mortgaged property to be acquired by us with the proceeds of, or
otherwise in connection with, such release) equals or exceeds an
amount equal to 10/7ths of the aggregate principal amount of
outstanding Bonds and any prior lien bonds outstanding at the time of
such release;
(2) in the event we are unable to obtain a release of property as
described in clause (1), the release from the lien of the Mortgage of
any property constituting part of the trust estate if our fair value
thereof is less than 1/2 of 1% of the aggregate principal amount of
Bonds and prior lien bonds outstanding at the time of such release;
provided, that the property released pursuant to this clause (2) in
any period of 12 consecutive calendar months shall not exceed 1% of
such Bonds and prior lien bonds;
(3) the deletion of the net earnings test for the issuance of additional
Bonds;
(4) the deletion of the requirement to obtain an independent engineer's
certificate in connection with certain releases of property from the
lien of the Mortgage; and
(5) the deletion of a financial test to be met by another corporation in
the event of our consolidation or merger into or our sale of our
property as an entirety or substantially as an entirety to such other
corporation. (Thirty-Third Supplemental Indenture, Article V)
Events of Default
An event of default under the Mortgage includes:
o default in the payment of the principal of any Bond when the same
shall become due and payable, whether at maturity or otherwise;
o default continuing for 30 days in the payment of any installment of
interest on any Bond or in the payment or satisfaction of any sinking
fund obligation;
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o default in performance or observance of any other covenant, agreement
or condition in the Mortgage continuing for a period of 60 days after
written notice to us thereof by the Trustee or by the holders of not
less than 15% of the aggregate principal amount of all Bonds then
outstanding;
o failure to discharge or stay within 30 days a final judgment against
us for the payment of money in excess of $100,000; and
o certain events in bankruptcy, insolvency or reorganization. (Mortgage,
Article IX, Section 1.)
The Trustee is required, within 90 days after the occurrence thereof, to
give to the holders of the Bonds notice of all defaults known to the Trustee
unless such defaults shall have been cured before the giving of such notice (the
term "defaults" for such purposes being defined to be the events specified
above, not including any periods of grace); provided, however, that except in
the case of default in the payment of the principal of or interest on any of the
Bonds, or in the payment or satisfaction of any sinking or purchase fund
installment, the Trustee shall be protected in withholding notice if and so long
as the Trustee in good faith determines that the withholding of notice is in the
interests of the holders of the Bonds and, in the case of any default specified
in the third bullet point above, no notice shall be given until at least 60 days
after the occurrence thereof. (Mortgage, Article XIX, Section 3.) The Trustee is
under no obligation to defend or initiate any action under the Mortgage which
would result in the incurring of non-reimbursable expenses unless one or more of
the holders of Bonds issued under the Mortgage, including the New Bonds,
furnishes the Trustee with reasonable indemnity against such expenses. In the
event of default, the Trustee is not required to act unless requested to act by
holders of at least 25% in aggregate principal amount of the Bonds then
outstanding. (Mortgage, Article IX, Sections 1 and 4, Article XIII, Section 2
and Article XXI, Section 6.) In addition, a majority of the Bondholders have the
right to direct all proceedings under the Mortgage; provided, the Trustee is
indemnified to its satisfaction. (Mortgage, Article IX, Section 11.)
BOOK-ENTRY SECURITIES
The Securities will be issued in the form of one or more global
certificates (collectively, with respect to each series or issue of Securities,
the "global security") registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be DTC.
We have been informed by DTC that its nominee will be Cede & Co. ("Cede").
Accordingly, Cede is expected to be the initial registered holder of the
Securities that are issued in global form. No person that acquires an interest
in the Securities will be entitled to receive a certificate representing that
person's interest in such Securities except as set forth herein or in the
accompanying prospectus supplement. Unless and until definitive Securities are
issued under the limited circumstances described below, all references to
actions by holders of Securities issued in global form shall refer to actions
taken by DTC upon instructions from its Participants (as defined below), and all
references herein to payments and notices to the holders shall refer to payments
and notices to DTC or Cede, as the registered holder of such Securities.
DTC has informed us that it is a limited purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to Section 17A of the Exchange Act, and
that it was created to hold securities for its participating organizations
("Participants") and to facilitate the clearance and settlement of securities
transactions among Participants through electronic book-entry, thereby
eliminating the need for physical movement of certificates. Participants include
securities brokers and dealers, banks, trust companies and clearing
corporations, and may include certain other organizations. Indirect access to
the DTC system also is available to
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others such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly ("Indirect Participants").
Holders that are not Participants or Indirect Participants but that desire
to purchase, sell or otherwise transfer ownership of, or other interests in,
Securities may do so only through Participants and Indirect Participants. Under
a book-entry format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by the agent designated by us to
Cede, as nominee for DTC. DTC will forward such payments to its Participants,
which thereafter will forward them to Indirect Participants or holders. Holders
will not be recognized by the trustee or us as registered holders of the
Securities entitled to the benefits of the indenture or the terms of the
Securities. Holders that are not Participants will be permitted to exercise
their rights as such only indirectly through and subject to the procedures of
Participants and, if applicable, Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect, DTC will be required to make book-entry
transfers of Securities among Participants and to receive and transmit payments
to Participants. Participants and Indirect Participants with which holders have
accounts with respect to the Securities similarly are required to make
book-entry transfers and receive and transmit such payments on behalf of their
respective holders.
Because DTC can act only on behalf of Participants, who in turn act only on
behalf of holders or Indirect Participants, and on behalf of certain banks,
trust companies and other persons approved by it, the ability of a holder to
pledge Securities to persons or entities that do not participate in the DTC
system, or to otherwise act with respect to those Securities, may be limited due
to the absence of physical certificates for those Securities.
DTC has advised us that it will take any action permitted to be taken by a
registered holder of any Securities under the indenture or the terms of the
Securities only at the direction of one or more Participants to whose accounts
with DTC those Securities are credited.
A global security will be exchangeable for the relevant definitive
Securities registered in the names of persons other than DTC or its nominee only
if:
(i) DTC notifies us that it is unwilling or unable to continue as
depository for that global security or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act at a time when DTC is
required to be so registered in order to act as depository,
(ii) we execute and deliver to the trustee an order complying with the
requirements of the indenture that global security shall be so exchangeable
or
(iii) there has occurred and is continuing a default in the payment of
principal of, premium, if any, or interest on, the Securities or an Event
of Default or an event that, with the giving of notice or lapse of time, or
both, would constitute an Event of Default with respect to such Securities.
Any global security that is exchangeable pursuant to the preceding sentence will
be exchangeable for Securities or definitive Securities registered in those
names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Securities. Upon surrender by DTC of the
global security representing the Securities and delivery of instructions for
re-registration, the trustee will reissue the Securities as definitive
Securities, and thereafter the trustee will recognize the holders of such
definitive Securities as registered holders of Securities entitled to the
benefits of the indenture or the terms of the Securities, as the case may be.
12
<PAGE>
Except as described above, the global security may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or a successor depositary appointed by us. Except as
described above, DTC may not sell, assign, transfer or otherwise convey any
beneficial interest in a global security evidencing all or part of the debt
securities unless such beneficial interest is in an amount equal to an
authorized denomination for the Securities.
PLAN OF DISTRIBUTION
We may sell the Securities in any of the following ways: (i) through
underwriters or dealers; (ii) directly to one or more purchasers; or (iii)
through agents. The applicable prospectus supplement will set forth the terms of
the offering of any Securities, including the names of any underwriters or
agents, the purchase price of the Securities and the proceeds to us from such
sale, any underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
the Securities may be listed.
Any specific managing underwriter or underwriters with respect to the offer
and sale of the Securities and the members of the underwriting syndicate, if
any, will be named in a prospectus supplement. Underwriters will not be
obligated to make a market in any of the Securities. Unless otherwise set forth
in a prospectus supplement, underwriters will be obligated to purchase all of
the Securities offered, subject to certain conditions precedent.
The prospectus supplement will describe the discounts and commissions to be
allowed or paid to underwriters, if any, all other items constituting
underwriting compensation, the discounts and commissions to be allowed or paid
to dealers and agents, if any, and the exchanges, if any, on which the
Securities will be listed.
Underwriters, dealers and agents may be entitled, under agreements to be
entered into with us, to indemnification against or to contribution with respect
to certain civil liabilities, including liabilities under the Securities Act of
1933, as amended.
LEGAL OPINIONS
The statements as to matters of law and legal conclusions set forth in this
Prospectus and in the documents incorporated by reference herein have been
reviewed by Richard D. Terrill, Esq., Executive Vice President, General Counsel
and Corporate Secretary of the Company, and are set forth or incorporated herein
in reliance upon the opinion of Mr. Terrill.
Certain legal matters in connection with the Securities will be passed upon
by Richard D. Terrell, Esq., Executive Vice President, General Counsel and
Corporate Secretary of the Company and by Cahill Gordon & Reindel, counsel for
the Company. Cahill Gordon & Reindel will not pass upon the incorporation of the
Company and will rely upon the opinion of Mr. Terrill, Esq. as to matters of
Kansas law.
At March 31, 2000, Mr. Terrill owned directly and/or beneficially 2,519
shares of Common Stock and had been granted, pursuant to and subject to the
terms of the Company's long-term incentive and compensation programs, 40,493
performance shares and stock options exercisable for 32,200 shares of Common
Stock.
EXPERTS
The financial statements and schedule incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemized statement of the estimated amounts of all
expenses in connection with the issuance and distribution of the Securities. It
is likely that the issuance and sale of the Securities will be made by sales
through more than one offering and therefore some of the following expenses will
be prorated among the number of offerings made by the aggregate amount of
Securities offered in each case.
Securities and Exchange Commission registration fee.......$132,000
Printing fees...............................................40,000
Trustee's fees..............................................50,000
Legal fees and expenses....................................350,000
Accounting fees and expenses................................30,000
Rating agency fees.........................................225,000
Other miscellaneous expenses............................... 50,000
-------
Total ...........................................$877,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article XVIII of the Registrant's Restated Articles of Incorporation, as
amended, provides that a director of the Registrant shall not be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for paying a dividend or approving a stock
repurchase in violation of the Kansas General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision is specifically authorized by Section 17-6002(b)(8) of the Kansas
General Corporation Law.
Section 17-6305 of the Kansas General Corporation Law (the "Indemnification
Statute") provides for indemnification by a corporation of its corporate
officers, directors, employees and agents. The Indemnification Statute provides
that a corporation may indemnify such persons who have been, are, or may become
a party to an action, suit or proceeding due to his or her status as a director,
officer, employee or agent of the corporation. Further, the Indemnification
Statute grants authority to a corporation to implement its own broader
indemnification policy. Article XVIII of the Company's Restated Articles of
Incorporation, as amended, requires the Company to indemnify its directors and
officers to the fullest extent provided by Kansas law. Further, as is provided
for in Article XVIII, the Company has entered into indemnification agreements
with its directors, which provide indemnification broader than that available
under Article XVIII and the Indemnification Statute.
The Standard Purchase Agreement filed as Exhibit 1 to the Registration
Statement includes provisions requiring underwriters to indemnify the Company as
well as its directors and officers who signed this Registration Statement, as
well as its controlling persons, against certain civil liabilities, including
liabilities under the Securities Act of 1933, in certain circumstances.
14
<PAGE>
ITEM 16. EXHIBITS
Exhibit No. Exhibit
1 Standard Purchase Agreement (1)
4(a) Mortgage and Deed of Trust dated July 1, 1939 between the Company and
Harris Trust and Savings Bank, Trustee (2)
4(b) Twenty-Eighth Supplemental Indenture dated July 1, 1992 (2)
4(c) Twenty-Ninth Supplemental Indenture dated as of August 20, 1992 (2)
4(d) Thirtieth Supplemental Indenture dated as of February 1, 1993 (2)
4(e) Thirty-First Supplemental Indenture dated as of April 15, 1993 (2)
4(f) Thirty-Second Supplemental Indenture dated as of April 15, 1994 (2)
4.1 Thirty-Third Supplemental Indenture dated as of August 11, 1997 (1)
4.2 Form of Supplemental Indenture for New Bonds (1)
5 Opinion of Richard D. Terrill, Esq. (1)
12 Computation of Ratio of Earnings to Fixed Charges (2)
23(a) Consent of Richard D. Terrill, Esq. (contained in Exhibit 5) (1)
23(b) Consent of Arthur Andersen LLP (1)
24 Power of Attorney (set forth on the signature page of this
Registration Statement)
25(a) Statement of Eligibility of Trustee regarding Form of Supplemental
Indenture (1)
- --------------
(1) Filed herewith.
(2) Incorporated by reference to exhibits previously filed with the SEC as
follows:
<TABLE>
<CAPTION>
Exhibit Number in this Former Exhibit
Registration Statement Reference File Reference
---------------------- --------- --------------
<S> <C> <C>
1 1 33-48470*
4(a) 4(a) 33-21739*
4(b) 4(o) Form 10-K, Year ended December 31, 1992**
4(c) 4(p) Form 10-K, Year ended December 31, 1992**
4(d) 4(q) Form 10-K, Year ended December 31, 1992**
4(e) 4(r) 33-50069*
II-2
<PAGE>
4(f) 4(s) Form 10-K, Year ended December 31, 1995**
12 12 Form 10-K, Year ended December 31, 1999**
</TABLE>
- --------------
(*) Registration Statements under the Securities Act of 1933.
(**) File No. 1-3523 under the Securities Exchange Act of 1934.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(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;
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment is
contained in periodic reports filed by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offer of those securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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.
(4) That for the 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 those securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) In the event that the terms of any offers and sales of the
Securities are determined by competitive bidding (i) to use its best
efforts to distribute, prior to the opening of bids, to prospective
bidders, underwriters and dealers a reasonable number of copies of a
prospectus which at the time meets the requirements of section 10(a) of the
Securities Act of 1933, and relating to the securities offered at
competitive bidding, as contained in the registration statement together
with any supplements thereto and (ii) to file an amendment to the
registration statement reflecting the results of competitive bidding.
II-3
<PAGE>
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
controlling persons of Western, pursuant to the provisions described under
Item 15 above, Western has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in said Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by Western of expenses incurred or paid by a director or
officer of Western in the successful defense of any action, suit or
proceeding) is asserted by such director or officer in connection with the
securities being registered hereby and the Securities and Exchange
Commission is still of the same opinion, we 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 said Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Western
Resources, Inc. 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 Topeka, State of Kansas, on April 28, 2000.
WESTERN RESOURCES, INC.
By: /s/David C. Wittig
------------------
Name: David C. Wittig
Title: Chairman of the Board,
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
David C. Wittig, William B. Moore and Richard D. Terrill and each acting alone,
his or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his name, place and
stead, in any and all capacities, to sign any or all amendments or supplements
to this Registration Statement and to file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing necessary or
appropriate to be done with this Registration Statement and any amendments or
supplements hereto, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/David C. Wittig Chairman of the Board, President and Chief April 28, 2000
- -------------------------------------- Executive Officer (Principal Executive
(David C. Wittig) Officer)
/s/William B. Moore Executive Vice President and Chief April 28, 2000
- -------------------------------------- Financial Officer (Principal Financial and
(William B. Moore) Accounting Officer)
/s/Frank J. Becker Director April 28, 2000
- --------------------------------------
(Frank J. Becker)
/s/Gene A. Budig Director April 28, 2000
- --------------------------------------
(Gene A. Budig)
II-5
<PAGE>
Signature Title Date
- --------- ----- ----
/s/Charles Q. Chandler, IV Director April 28, 2000
- --------------------------------------
(Charles Q. Chandler, IV)
/s/John C. Dicus Director April 28, 2000
- --------------------------------------
(John C. Dicus)
/s/Owen F. Leonard Director April 28, 2000
- --------------------------------------
(Owen F. Leonard)
/s/Russell W. Meyer, Jr. Director April 28, 2000
- --------------------------------------
(Russell W. Meyer, Jr.)
/s/John C. Nettels, Jr. Director April 28, 2000
- --------------------------------------
(John C. Nettels, Jr.)
/s/Jane Desner Sadaka Director April 28, 2000
- --------------------------------------
(Jane Desner Sadaka)
/s/Louis W. Smith Director April 28, 2000
- --------------------------------------
(Louis W. Smith)
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Page
- ----------- ------- ----
1 Standard Purchase Agreement
4(a) Mortgage and Deed of Trust dated July 1, 1939
between the Company and Harris Trust and
Savings Bank, Trustee *
4(b) Twenty-Eighth Supplemental Indenture dated
July 1, 1992 *
4(c) Twenty-Ninth Supplemental Indenture dated as
of August 20, 1992 *
4(d) Thirtieth Supplemental Indenture dated as of
February 1, 1993 *
4(e) Thirty-First Supplemental Indenture dated as
of April 15, 1993 *
4(f) Thirty-Second Supplemental Indenture dated as
of April 15, 1994 *
4.1 Thirty-Third Supplemental Indenture dated as
of August 11, 1997
4.2 Form of Supplemental Indenture for New Bonds
5 Opinion of Richard D. Terrill, Esq.
12 Computation of Ratio of Earnings to Fixed
Charges *
23(a) Consent of Richard D. Terrill, Esq.
(contained in Exhibit 5)
23(b) Consent of Arthur Andersen LLP
24 Power of Attorney (set forth on the signature
page of this Registration Statement)
25(a) Statement of Eligibility of Trustee
regarding Form of Supplemental Indenture
- --------------------------
* Previously filed.
EXHIBIT 1
WESTERN RESOURCES, INC.
FIRST MORTGAGE BONDS
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
<PAGE>
WESTERN RESOURCES, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Western Resources, Inc., a corporation organized and
existing under the laws of the State of Kansas (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Bonds" shall mean the First Mortgage Bonds of the Company to be sold by
the Company pursuant to the applicable Purchase Agreement. Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed ("filing" as used herein shall be deemed to include
electronic filings pursuant to the EDGAR program), in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (including a prospectus),
relating to the Bonds, which pursuant to Item 12 of Form S-3 incorporates by
reference documents which the Company has filed in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). Such
registration statement has been declared effective by the Commission. Promptly
upon the execution of this Agreement, the Company will prepare a prospectus
supplement relating to the Bonds (the "Prospectus Supplement"). The Company has
furnished to you, for use by the Underwriters (as defined herein) and dealers,
copies of one or more preliminary prospectuses and the documents so incorporated
therein (each thereof, including the documents so incorporated therein, is
herein called the "Preliminary Prospectus"). The terms Registration Statement
and Prospectus shall have the meanings ascribed to them in the Purchase
Agreement.
1. Introductory. The Company proposes to issue and sell from time to time
Bonds registered under the Registration Statement. The Bonds will be issued
pursuant to the Indenture of Mortgage and Deed of Trust, dated July 1, 1939, to
Harris Trust and Savings Bank, as Trustee (the "Bonds Trustee"), as supplemented
and amended, including a supplemental indenture pertaining to the particular
series of Bonds involved in the offering (the "Mortgage"), and will have varying
designations, interest rates and times of payment of any interest, maturities,
redemption provisions and other terms, with all such terms for any particular
series of the Bonds being determined at the time of the sale and set forth in
the Pur-
<PAGE>
-2-
chase Agreement and the Prospectus Supplement relating to such series of Bonds.
The Bonds involved in any such offering are hereinafter referred to as the
"Purchased Bonds," and the firm or firms, as the case may be, which agree to
purchase the same are hereinafter referred to as the "Underwriters" of the
Purchased Bonds. The terms "you" and "your" refer to those Underwriters who sign
the Purchase Agreement either on behalf of themselves only or on behalf of
themselves and as representatives of the several Underwriters named in Schedule
A thereto, as the case may be. Purchased Bonds to be purchased by Underwriters
are herein referred to as "Underwriters' 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. Delivery and Payment. The Company will deliver the Underwriters' Bonds
to you for the accounts of the Underwriters at the place specified in the
Purchase Agreement, against payment of the purchase price by certified or bank
cashier's check in same day or New York Clearing House funds (as agreed to by
the parties and specified in the Purchase Agreement) drawn to the order of the
Company, at the time set forth in this 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 "time of purchase." Unless otherwise
provided for in the Purchase Agreement, the Underwriters' Bonds so to be
delivered will be in definitive fully registered form registered in such
authorized denominations and in such names as you request in writing not later
than 10:00 A.M.,1 on the third business day prior to the time of purchase, or,
if no such request is received, in the names of the respective Underwriters in
the amounts agreed to be purchased by them pursuant to this Agreement. For the
purpose of expediting the checking of the Underwriters' Bonds, the Company
agrees to make the Underwriters' Bonds available to you (at the place specified
in the Purchase Agreement) in definitive form not later than 10:00 A.M. on the
first business day preceding the time of purchase.2
If any Purchase Agreement provides for sales of Purchased Bonds pursuant to
delayed delivery contracts, the Company authorizes the Underwriters 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. At the time of purchase the Company
will pay you as compensation, for the accounts of the Underwriters, the
compensation set
- ----------
* Times mentioned herein are New York City Time.
** As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
<PAGE>
-3-
forth in such Purchase Agreement in respect of the principal amount of Contract
Bonds. The Underwriters 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 Underwriters
and the aggregate principal amount of Purchased Bonds to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Purchased Bonds set forth opposite each Underwriter'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. Certain Covenants of the Company. The Company agrees:
(a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the Commission
pursuant to its Rule 424 under the Act and, if and when required at any
time after such execution and delivery, to file amendments to the
applications the Company has previously filed with any state regulatory
agencies having jurisdiction to govern the Company's issuance of its
securities setting forth, among other things, the necessary information
with respect to the price and terms of offering of the Purchased Bonds;
(b) To file no amendment or supplement to the Registration Statement
or Prospectus subsequent to the execution of this Agreement to which you
object in writing unless, in the opinion of counsel to the Company, such
filing is required by law;
(c) To furnish such proper information as may be required and
otherwise to cooperate in qualifying the Purchased Bonds for sale under the
laws of such jurisdictions as you may designate and in determining their
eligibility for investment under the laws of such jurisdictions; provided
that the Company shall not hereby be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(d) To the extent not previously furnished to you, to furnish to you
two signed copies of the Registration Statement, as initially filed with
the Commission, of all amendments thereto, and of all documents
incorporated by reference therein (including all exhibits filed therewith,
other than exhibits which have previously been furnished to you and
exhibits incorporated by reference in such documents), and to furnish to
you sufficient unsigned copies of the foregoing (other than exhibits) for
distribution of a copy to you and to each of the other Underwriters (if
any);
<PAGE>
-4-
(e) To deliver to the Underwriters without charge as soon as
practicable after the execution and delivery of this Agreement and
thereafter from time to time to furnish to the Underwriters, without
charge, as many copies of the Prospectus in final form and any documents
incorporated by reference therein at or after the date thereof (and of the
Registration Statement as amended or supplemented, if the Company shall
have made any amendment or supplement after the effective date of the
Registration Statement) as you or the respective Underwriters may
reasonably request for the purposes contemplated by the Act;
(f) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of official notice of institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered by the Commission, to make every
reasonable effort to obtain the lifting or removal thereof as soon as
possible, or of the suspension of qualification of the Purchased Bonds for
offering or sale in any jurisdiction or of the initiation or threatening of
any proceeding for any such purpose;
(g) To advise the Underwriters of the happening of any event known to
the Company within the time during which a prospectus relating to the
Purchased Bonds is required to be delivered under the Act which, in the
judgment of the Company, would require the making of any change in the
Prospectus or any amended or supplemented Prospectus or in the information
incorporated by reference therein so that as thereafter delivered to
purchasers such Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and on request to prepare and furnish to the
Underwriters and to dealers and other persons designated by you such
amendments or supplements (including appropriate filings under the Exchange
Act) to the Prospectus as may be necessary to reflect any such change,
provided that the Company shall be so obligated only so long as the Company
is notified of unsold allotments (failure by the Underwriters to so notify
the Company cancels the Company's obligation under this Section 3(g));
(h) As soon as practicable, to make generally available to its
security holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective date (as
the term "effective date" is defined in Rule 158) of the Registration
Statement;
(i) To pay the reasonable fees and expenses of counsel for the
Underwriters, and to reimburse the Underwriters for their reasonable
out-of-pocket expenses in-
<PAGE>
-5-
curred in contemplation of the performance of this Agreement, in the event
that the Underwriters' Bonds are not delivered to and taken up and paid for
by the Underwriters hereunder for any reason whatsoever except the failure
or refusal of any Underwriter to take up and pay for Underwriters' Bonds
for some reason not permitted by the terms of this Agreement, the
Underwriters agreeing to pay the fees and expenses of counsel for the
Underwriters in any other event;
(j) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Underwriters except as set forth
under 3(i) above or (iv) below) in connection with (i) the preparation and
filing of the Registration Statement, each Preliminary Prospectus and the
Prospectus, any documents incorporated by reference therein at or after the
date thereof and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers, (ii) the issue, sale and delivery of the Purchased Bonds, (iii)
the printing and reproduction of this Agreement and the opinions and
letters referred to in Section 4(a) hereof, (iv) the qualification of the
Purchased Bonds for sale and determination of their eligibility for
investment under state laws as aforesaid, including the legal fees (not to
exceed $3,000) and all filing fees and disbursements of counsel for the
Underwriters and all other filing fees, and the printing and furnishing of
copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the
Underwriters and to dealers, (v) the rating of the Purchased Bonds by
national rating agencies and (vi) the performance of the Company's other
obligations hereunder;
(k) To use best efforts to cause the Mortgage to be duly filed for
record, appropriate notices of such filing to be recorded, and an
appropriate financing statement to be filed, wherever necessary or
appropriate to perfect the lien of the Mortgage for the benefit of the
Purchased Bonds prior to the time of purchase;
(l) To furnish to the Underwriters, at or before the time of filing
with the Commission subsequent to the effective date of the Registration
Statement and prior to the termination of the distribution of the Purchased
Bonds, a copy of any document proposed to be filed pursuant to Section
13(a), 13(d), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions on the Purchased Bonds, as notified to the Company by the
Underwriters, and (ii) the time of purchase, the Company will not offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after the time of purchase and
which are substantially similar to the Purchased Bonds, without the
Under-
<PAGE>
-6-
writers' prior written consent; provided, however, that in no event shall
the foregoing period extend more than fifteen calendar days from the date
of this Agreement.
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed
opinions of Richard D. Terrill, Esq., Executive Vice President, General
Counsel and Corporate Secretary of the Company; Cahill Gordon & Reindel,
counsel for the Company; and [ ], counsel for the Underwriters,
substantially in the forms heretofore furnished to you, addressed to the
Underwriters (with reproduced or conformed copies thereof for each of the
other Underwriters); and that, at the time of purchase, you shall receive
the signed letter of Arthur Andersen & Co., independent public accountants
of the Company (with reproduced or conformed copies thereof for each of the
other Underwriters);
(b) That all orders, approvals or consents of state or federal
regulatory commissions necessary to permit the issue, sale and delivery of
the Purchased Bonds shall have been issued; at the time of purchase such
orders shall be in full force and effect; and prior to such time of
purchase no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act by the
Commission and at such time of purchase no proceedings therefor shall be
pending or threatened;
(c) That, at the time the Registration Statement became effective, the
Registration Statement did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that the
Prospectus at its issue date and at the time of purchase shall 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 the light of the circumstances under which they were made, not
misleading, other than any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon, and in
conformity with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to
such Underwriter in the Registration Statement or Prospectus;
(d) That, subsequent to the respective dates as of which information
is given in the Registration Statement and in the Prospectus, at the time
the Prospectus is first filed, or mailed for filing, pursuant to Rule 424
under the Act, and prior to the time of purchase, in your opinion no
material adverse change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to in or
contemplated by the Registration Statement and Prospectus as of such time)
which in
<PAGE>
-7-
the reasonable judgment of the Underwriters, is sufficiently material and
adverse so as to render it impractical or inadvisable to offer or deliver
the Purchased Bonds on the terms and in the manner contemplated in the
Prospectus;
(e) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or before
the time of purchase;
(f) That the Company shall, at the time of purchase, deliver to you
(with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers stating
that, subsequent to the respective dates as of which information is given
in the Registration Statement and in the Prospectus, at the time the
Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under
the Act, and prior to the time of purchase, no material adverse change in
the condition of the Company, financial or otherwise, shall have taken
place (other than as referred to in or contemplated by the Registration
Statement and Prospectus as of such time) and also covering the matters set
forth in (c) and (e) of this Section 4;
(g) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Bonds arranged by the Underwriters have
been approved by the Company; and
(h) Subsequent to the date of this Agreement: (i) no downgrading shall
have occurred in the rating accorded the Company's First Mortgage Bonds by
a "nationally recognized securities rating organization," as that term is
defined by the Commission for purposes of its Rule 436(g)(2); and (ii) no
such rating organization shall have announced publicly that it has placed,
or informed the Company or the Underwriters that it intends to place, any
of the Company's First Mortgage Bonds on what is commonly referred to as a
"watchlist" for possible downgrading, in a manner or to an extent
indicating a materially greater likelihood of a downgrading in rating as
described in clause (i) above occurring than was the case as of the date
hereof.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion, if, at
any time prior to the time of purchase, trading in securities on the New York
Stock Exchange shall have been suspended (other than a temporary suspension to
provide for an orderly market) or minimum prices shall have been established on
the New York Stock Exchange, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any outbreak or material escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the
<PAGE>
-8-
United States as, in your reasonable judgment, to make it impracticable to
market the Purchased Bonds.
If you elect to terminate this Agreement as provided in this Section 5, the
Company and each other Underwriter shall be notified promptly in writing or by
telephone, confirmed in writing.
If the sale to the Underwriters of the Underwriters' Bonds, as herein
contemplated, is not carried out by the Underwriters for any reason permitted
hereunder or if such sale is not carried out because the Company shall be unable
to comply with any of the terms thereof, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in
Sections 3(i), 3(j), 7(b) and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company (except to the extent provided in
Sections 8(b) and 9 hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments. If any Underwriter shall default
in its obligation to take up and pay for the Purchased Bonds to be purchased by
it hereunder and if the principal amount of the Purchased Bonds which all
Underwriters so defaulting shall have so failed to take up and pay for does not
exceed 10% of the total principal amount of the Purchased Bonds, the
non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of the Purchased Bonds they are obligated to purchase pursuant
to this Agreement) the principal amount of the Purchased Bonds agreed to be
purchased by all such defaulting Underwriters, as herein provided. Such
Purchased Bonds shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Purchased Bonds shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the principal amount of
the Purchased Bonds set opposite the names of all such non-defaulting
Underwriters in Schedule A to the Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations hereunder,
the Company agrees with the non-defaulting Underwriters that it will not sell
any Purchased Bonds hereunder unless all of the Underwriters' Bonds are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
<PAGE>
-9-
The term Underwriter as used in this Agreement will refer to and include
any underwriter substituted under this Section 6 with like effect as if such
substituted underwriter had originally been named in Schedule A to the Purchase
Agreement.
7. Warranties and Representations of and Indemnity by the Company. (a) The
Company warrants and represents that, when the Registration Statement became
effective, the Registration Statement complied in all material respects, and,
when the Prospectus is first filed, or mailed for filing, pursuant to Rule 424
under the Act, and at the time of purchase the Prospectus will comply in all
material respects with the provisions of the Act, and that neither will contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to the
Underwriter in the Registration Statement or Prospectus. The Company also
warrants and represents that the documents incorporated by reference in the
Prospectus complied at the time they were filed in all material respects with
the requirements of the Exchange Act 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 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 the light of the circumstances under which they
are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Underwriter, and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability or claim which arises out of or is based upon any alleged untrue
statement of a material fact in the Registration Statement, any prospectus
contained in the Registration Statement at the time it became effective or the
Prospectus, or any related preliminary prospectus, or arises out of or is based
upon any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not misleading. The
foregoing shall not cover any such loss, expense, liability or claim, however,
which arises out of or is based upon any alleged untrue statement of a material
fact contained in, and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for use with
reference to the Underwriter in, any such documents or arises out of or is based
upon any alleged omission to state a material fact in connection with such
information required to be stated in any such documents or necessary to make
such information not misleading.
<PAGE>
-10-
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that the
failure so to notify the Company will not relieve it from any liability that it
may have to such Underwriter under this Section 7(b) unless, and only to the
extent that such failure results in the forfeiture of substantive rights or
defenses by the Company. Such Underwriter or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses of one counsel for all indemnified parties selected by such
Underwriter shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent. The Company's
indemnity agreement contained in this Section 7(b) and its warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or controlling person, and shall survive any termination of this Agreement or
the issuance and delivery of the Purchased Bonds.
The Company agrees promptly to notify the Underwriters of the commencement
of any litigation or proceedings against the Company or any of its officers,
directors or controlling persons in connection with the issue and sale of the
Purchased Bonds or with the Registration Statement or Prospectus.
8. Warranties and Representations of and Indemnity by Underwriters. (a)
Each Underwriter warrants and represents that the information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement at the
time it became effective or the Prospectus when the Prospectus is first filed,
or mailed for filing, pursuant to Rule 424 under the Act, will not contain an
untrue statement of a material fact and does not omit to state a material fact
in connection with such information required to be stated in the Registration
Statement or the Prospectus or necessary to make such information not
misleading. Each Underwriter, in addition to other information furnished by such
Underwriter or on its behalf through you to the Company in writing expressly for
use with reference to such Underwriter in the Registration Statement and
Prospectus, hereby furnishes to the Company in writing expressly
<PAGE>
-11-
for use with reference to such Underwriter the statements with respect to the
terms of offering of the Purchased Bonds by the Underwriters set forth on the
cover page of the Prospectus and under "Underwriting" therein.
(b) Each Underwriter and controlling persons severally agrees to indemnify
and hold harmless the Company, its directors and its officers from and against
any loss, expense, liability or claim which arises out of or is based upon any
alleged untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the institution
of such action and such Underwriter shall assume the defense of such action,
including the employment of counsel and payment of expenses; provided, however,
that the failure so to notify such Underwriter will not relieve it from any
liability that it may have to the Company under this Section 8(b) unless, and
only to the extent that such failure results in the forfeiture of substantive
rights or defenses by such Underwriter. The Company or such person shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of the defense of
such action or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses for all indemnified parties of one counsel selected by the Company
shall be borne by such Underwriter. Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained in this Section
8(b) shall remain in full force and effect regardless of any investigation made
by or on behalf of the Company or such person, and shall survive any termination
of this Agreement or the issuance and delivery of the Purchased Bonds. Each
Underwriter agrees promptly to notify the Company of the commencement of any
litigation or proceedings
<PAGE>
-12-
against such Underwriter in connection with the issue and sale of the Purchased
Bonds or with such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided for in Sections 7(b) or
8(b) above is unavailable in respect of any losses, expenses, liabilities or
claims referred to therein, then 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 Underwriters and such controlling persons
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 Underwriters and
such controlling persons were treated as one entity for such purpose). The
contribution agreement contained in this Section 9 shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person and shall survive any termination of this Agreement or the
issuance and delivery of the Purchased Bonds.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Underwriters, shall be sufficient in all
respects if delivered or sent by registered mail to the address furnished in
writing for the purpose of such statements, requests, notices and agreements
hereunder, and, if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the Company at 818 South Kansas Avenue,
Topeka, Kansas 66612, Attention: William B. Moore, Executive Vice President and
Chief Financial Officer.
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Parties in Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Sections 7, 8 and 9
hereof, and their respective successors, assigns, executors and administrators,
and no other person shall acquire or have any right under or by virtue of this
Agreement. Nothing in this Agreement is intended or shall be con-
<PAGE>
-13-
strued to give to any other person, firm or corporation (including, without
limitation, any purchaser of the Purchased Bonds from an Underwriter or any
subsequent holder thereof or any purchaser of any Contract Bonds 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 Bonds from any Underwriter or any
subsequent holder thereof or any purchaser, as such purchaser, of any Contract
Bonds or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
Dated: ______________, 2000
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Attention: Chief Financial Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Western Resources, Inc. (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 ____________, 2000 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:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- ------ -------------
$
- ---------------------- ----------------------- -------------------------
$
- ---------------------- ----------------------- -------------------------
$
- ---------------------- ----------------------- -------------------------
<PAGE>
-2-
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 (as agreed to by
the Company and the undersigned) at the (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 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 delivery shall have taken place, to the
Underwriters such principal amount of the 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 Underwriters, 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 Underwriters.
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 New York.
This contract may be executed in one or more coun-
<PAGE>
-3-
terparts, 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 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
WESTERN RESOURCES, INC.
By_____________________________________
Title__________________________________
<PAGE>
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>
WESTERN RESOURCES, INC.
PURCHASE AGREEMENT
FIRST MORTGAGE BONDS
--------------------
Date)
Western Resources, Inc.
818 Kansas Avenue
Topeka, Kansas 66612
Dear Sirs:
Referring to the First Mortgage Bonds of Western Resources, Inc. (the
"Company") ("Bonds") covered by registration statement on Form S-3 (No. 333- ),
such registration statement including (i) the prospectus included therein, dated
________________, as supplemented by a prospectus supplement dated
________________, in the form filed under Rule 424(b) and any additional
prospectus supplements relating to the Bonds filed under Rule 424 (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, is hereinafter called 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
"Underwriters") agree to purchase, severally, and the Company agrees to sell to
the Underwriters, severally, the respective principal amounts of the Company's
Bonds having the terms described below (the "Purchased Bonds") set forth
opposite the name of each Underwriter on Schedule A hereto.
The price at which the Purchased Bonds shall be purchased from the Company
by the Underwriters shall be ___% plus accrued interest from _________________.
The initial public offering price shall be ___% plus accrued interest from
___________. The Purchased Bonds will be offered by the Underwriters as set
forth in the Prospectus relating to such Purchased Bonds.
The Purchased Bonds will have the following terms:
<TABLE>
<CAPTION>
<S> <C>
Title of Bonds:
----------------------------------
<PAGE>
-2-
Interest Rate: _____% per annum
Interest Payment Dates:
----------------------------------
Maturity:
----------------------------------
Redemption Provisions:
----------------------------------
----------------------------------
----------------------------------
Sinking Fund Provisions:
----------------------------------
----------------------------------
----------------------------------
Other:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Payment for the Purchased Bonds shall
be made in the following
funds:
----------------------------------
The time of purchase shall be:
----------------------------------
The place to which the
Purchased Bonds may be checked
and packaged shall be:
----------------------------------
The place(s) at which the Purchased
Bonds shall be delivered
and sold shall be:
----------------------------------
<PAGE>
-3-
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:
---------------------------
Compensation to
Underwriters: ]*
---------------------------
</TABLE>
Notices to the Underwriters shall be sent to the following address(es) or
telecopier number(s):
If we are acting as Representative(s) for the several Underwriters named in
Schedule A hereto, we represent that we are authorized to act for such several
Underwriters in connection with the transactions contemplated in this Agreement,
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 Underwriters.
All of the provisions contained in the document entitled "Western
Resources, Inc., First Mortgage Bonds, Standard Purchase Provisions," 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.
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 Underwriters in
accordance with its terms.
Very truly yours,
<PAGE>
-4-
[Firm Name]
By____________________________
Title:_______________________
[Firm Name]
By____________________________
Title:_______________________
Acting on behalf of and as Representative(s)
of the several Underwriters named in
Schedule A hereto.*
- ----------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes
of this Agreement.
<PAGE>
-5-
The foregoing Purchase Agreement is hereby confirmed as of the date first above
written.
WESTERN RESOURCES, INC.
By________________________________
Title_____________________________
<PAGE>
SCHEDULE A
Name of Underwriter Amount
-----------------------------
Total $
-----------------------------
EXHIBIT 4.1
================================================================================
WESTERN RESOURCES, INC.
TO
HARRIS TRUST AND SAVINGS BANK
as Trustee
------------------
THIRTY-THIRD SUPPLEMENTAL INDENTURE
Dated as of August 11, 1997
First Mortgage Bonds, 6-7/8% Convertible Series Due 2004,
Convertible at the option of the Company into 6-7/8%
Unsecured Senior Notes Due 2004
First Mortgage Bonds, 7-1/8% Convertible Series Due 2009,
Convertible at the option of the Company into 7-1/8%
Unsecured Senior Notes Due 2009
================================================================================
<PAGE>
TABLE OF CONTENTS(1)
Page
Parties................................................................... 1
Recitals.................................................................. 1
Granting Clause........................................................... 4
Habendum.................................................................. 6
Exceptions and Reservations............................................... 6
Grant in Trust............................................................ 7
General Covenant.......................................................... 7
ARTICLE I. Description of Bonds of the First and
Second Convertible Series.................................7
Section 1. General Description of Bonds of the First and Second
Convertible Series........................................7
Section 2. Denominations of Bonds of the First and Second Convertible
Series and privilege of exchange .........................9
Section 3. Form of Bonds of the First Convertible
Series....................................................9
Section 4. Form of Bonds of the Second Convertible Series...............17
- ----------
1 Note: The Table of Contents is not part of this Supplemental Indenture and
should not be considered as such. It is included only for purposes of
convenience.
-i-
<PAGE>
Page
Section 5. Execution and Form of Temporary Bonds of the First and
Second Convertible Series ..................................24
ARTICLE II. Issue of Bonds of the First and Second Convertible Series......24
Section 1. Limitations as to principal amount.............................24
Section 2. Execution and Delivery of Bonds of the First and Second
Convertible Series..........................................24
ARTICLE III. Redemption.....................................................24
Section 1. Bonds of the First and Second Convertible Series are
not redeemable..............................................24
ARTICLE IV. Additional Covenants...........................................25
Section 1. Title to mortgaged property....................................25
Section 2. To retire certain portions of Bonds upon release of
all or substantially all of the gas
properties.................................................25
Section 3. To retire certain portions of Bonds upon release of all
or substantially all of the electric
properties.................................................26
ARTICLE V. Amendment to Ratio of Bonds Issuable; to Property Additions
and of Certain Other Ratios. Amendments of Net Earnings
Test Use of Facsimile Signatures. Amendment of Article XV.
Reservation of Right to Amend Article VII..................27
Section 1. So long as Bonds of the First and Second Convertible Series
remain outstanding:
Bonds issuable on basis only of 60% of net bondable value
of property additions not subject to an unfunded
prior lien.................................................27
Amendment of definition of net bondable value of property
additions not subject to an unfunded prior lien............27
-ii-
<PAGE>
Page
Monies deposited with Trustee under Section 5(a) of Article III of
the Original Indenture may not be withdrawn in an amount in
excess of 60% of net bondable value of property additions not
subject to an unfunded prior lien, notwithstanding provisions
of Section 3(a) of Article VIII of the Original
Indenture..................................................28
Amendment of definition of net bondable value of property
additions subject to an unfunded prior lien................28
Amendment of covenants in Sections 14 and 16 of Article
IV and Section 1 of Article XII of the Original
Indenture with respect to acquisition of property
subject to an unfunded prior lien .........................28
Definitions: minimum charge for depreciation; net earnings
of property available for interest, depreciation and
property retirement; net earnings of another corporation
available for interest, depreciation and property
retirement.................................................28
Amendment of Articles III, IV and XII of the Original
Indenture..................................................31
Section 2. Facsimile Signatures...........................................31
Section 3. Amendment of Article XV of Original Indenture so as to
substitute 60% for 80% whenever it appears.................32
Section 4. Amendment of Article XV of Original Indenture to add
a Section 9................................................32
Section 5. Reservation of Right to Amend Article VII......................34
Section 6. Reservation of Right to Delete certain requirements
and conditions.............................................37
ARTICLE VI. Conversion of Bonds of the First and Second Convertible
Series.....................................................38
Section 1. Conversion Provision...........................................38
Section 2. Conditions for Conversion......................................38
-iii-
<PAGE>
Page
Section 3. Notice and Effect of Conversion................................38
Section 4. Cancellation...................................................40
ARTICLE VII. Miscellaneous Provisions.......................................40
Section 1. Acceptance of Trust............................................40
Section 2. Responsibility and Duty of Trustee.............................40
Section 3. Parties to include successors and assigns......................41
Section 4. Benefits restricted to parties and to holders of Bonds
and coupons.................................................41
Section 5. Execution in counterparts......................................41
Section 6. Titles of Articles not part of the Thirty-Third
Supplemental Indenture......................................41
TESTIMONIUM.................................................................S-1
SIGNATURES AND SEALS........................................................S-1
ACKNOWLEDGMENTS.............................................................S-3
Appendix A..................................................................A-1
-iv-
<PAGE>
THIRTY-THIRD SUPPLEMENTAL INDENTURE, dated as of the 11th day of August,
Nineteen Hundred and Ninety-Seven, made by and between Western Resources, Inc.,
formerly The Kansas Power and Light 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 whose
mailing address is 111 West Monroe Street, P.O. Box 755, Chicago, Illinois 60690
(hereinafter called the "Trustee"), as Trustee under the Mortgage and Deed of
Trust dated July 1, 1939, hereinafter mentioned, party of the second part;
WHEREAS, the Company has heretofore executed and delivered to the Trustee
its Mortgage and Deed of Trust, dated July 1, 1939 (hereinafter referred to as
the "Original Indenture"), to provide for and to secure an issue of First
Mortgage Bonds of the Company, issuable in series, and to declare the terms and
conditions upon which the Bonds are to be issued thereunder; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
Thirty-Two Supplemental Indentures supplemental to said Original Indenture, of
which Thirty provided for the issuance thereunder of series of the Company's
First Mortgage Bonds, and there is set forth below information with respect to
such Supplemental Indentures as have provided for the issuance of Bonds, and the
principal amount of Bonds which remain outstanding as of August 11, 1997.
<TABLE>
<CAPTION>
Supplemental Series of
Indenture First Mort- Principal Principal
Hereinafter gage Bonds Amount Amount
Called Date Provided For Issued Outstanding
- ----------- ---- ------------ --------- -----------
<S> <C> <C> <C> <C>
Supplemental Indenture July 1, 1939 3-1/2% Series $26,500,000 None
Due 1969
Second Supplemental April 1, 1949 2-7/8% Series 10,000,000 None
Indenture Due 1979
Fourth Supplemental October 1, 1949 2-3/4% Series 6,500,000 None
Indenture Due 1979
Fifth Supplemental December 1, 1949 2-3/4% Series 32,500,000 None
Indenture Due 1984
Seventh Supplemental December 1, 1951 3-1/4% Series 5,250,000 None
Indenture Due 1981
Eighth Supplemental May 1, 1952 3-1/4% Series 4,750,000 None
Indenture Due 1982
Ninth Supplemental October 1, 1954 3-1/8% Series $8,000,000 None
Indenture Due 1984
Tenth Supplemental September 1, 1961 4-3/4% Series 13,000,000 None
Indenture Due 1991
Eleventh Supplemental April 1, 1969 7-5/8% Series 19,000,000 None
Indenture Due 1999
Twelfth Supplemental September 1, 1970 8-3/4% Series 20,000,000 None
Indenture Due 2000
Thirteenth Supplemental February 1, 1975 8-5/8% Series 35,000,000 None
Indenture Due 2005
Fourteenth Supplemental May 1, 1976 8-5/8% Series 45,000,000 None
Indenture Due 2006
Fifteenth Supplemental April 1, 1977 5.90% Pollution 32,000,000 None
Indenture Control Series
Due 2007
Sixteenth Supplemental June 1, 1977 8-1/8% Series 30,000,000 None
Indenture Due 2007
Seventeenth Supplemental February 1, 1978 8-3/4% Series 35,000,000 None
<PAGE>
Supplemental Series of
Indenture First Mort- Principal Principal
Hereinafter gage Bonds Amount Amount
Called Date Provided For Issued Outstanding
- ----------- ---- ------------ --------- -----------
Indenture Due 2008
Eighteenth Supplemental January 1, 1979 6-3/4% Pollution 45,000,000 None
Indenture Control Series
Due 2009
Nineteenth Supplemental May 1, 1980 8-1/4% Pollution 45,000,000 None
Indenture Control Series
Due 1983
Twentieth Supplemental November 1, 1981 16.95% Series 25,000,000 None
Indenture Due 1988
Twenty-First Supplemental April 1, 1982 15% Series 60,000,000 None
Indenture Due 1992
Twenty-Second Supplemental February 1, 1983 9-5/8% Pollution 58,500,000 None
Indenture Control Series
Due 2013
Twenty-Third Supplemental July 1, 1986 8-1/4% Series 60,000,000 None
Indenture Due 1996
Twenty-Fourth Supplemental March 1, 1987 8-5/8% Series 50,000,000 None
Indenture Due 2017
Twenty-Fifth Supplemental October 15, 1988 9.35% Series 75,000,000 None
Indenture Due 1998
Twenty-Sixth Supplemental February 15, 1990 8-7/8% Series 75,000,000 $75,000,000
Indenture Due 2000
Twenty-Seventh Supplemental March 12, 1992 7.46% Demand $370,000,000 None
Indenture Series
Twenty-Eighth Supplemental July 1, 1992 7-1/4% Series 125,000,000 $125,000,000
Indenture Due 1999
8-1/2% Series 125,000,000 125,000,000
Due 2022
Twenty-Ninth Supplemental August 20, 1992 7-1/4% Series 100,000,000 100,000,000
Indenture Due 2002
Thirtieth Supplemental February 1, 1993 6% Pollution 58,500,000 58,420,000
Indenture Control Revenue
Refunding Series
Due 2033
Thirty-First Supplemental April 15, 1993 7.65% Series 100,000,000 100,000,000
Indenture Due 2023
Thirty-Second Supplemental April 15, 1994 7-1/2% Series 75,500,000 75,500,000
Indenture Due 2032
</TABLE>
; and
WHEREAS, the Company is entitled at this time to have authenticated and
delivered additional bonds on the basis of net bondable value of property
additions not subject to an unfunded prior lien and in substitution for
refundable Bonds, upon compliance with the provisions of Article III of the
Original Indenture, as amended; and
WHEREAS, the Company desires by this Thirty-Third Supplemental Indenture to
supplement the Original Indenture and to provide for the creation of a new
series of bonds under the Original Indenture to be designated "First Mortgage
Bonds, 6-7/8% Convertible Series Due 2004, Convertible at the option of the
Company into 6-7/8% Unsecured Senior Notes Due 2004" (hereinafter called "Bonds
of the First Convertible Series") and a new series of bonds under the Original
Indenture to be designated "First Mortgage Bonds, 7-1/8% Convertible Series Due
2009, Convertible at the option of the Company into 7-1/8% Un-
-2-
<PAGE>
secured Senior Notes Due 2009"(hereinafter called "Bonds of the Second
Convertible Series") (the 6-7/8% Unsecured Senior Notes Due 2004 and the 7-1/8%
Unsecured Senior Notes Due 2009 are hereinafter collectively referred to as the
"New Senior Notes"); and the Original Indenture provides that certain terms and
provisions, as determined by the Board of Directors of the Company, of the Bonds
of any particular series may be expressed in and provided by the execution of an
appropriate supplemental indenture; and
WHEREAS, the Company in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Original Indenture and
indentures supplemental thereto, and pursuant to appropriate resolutions of its
Board of Directors, has duly resolved and determined to make, execute and
deliver to the Trustee a supplemental indenture in the form hereof for the
purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Thirty-Third Supplemental Indenture a valid, binding and legal instrument have
been done, performed and fulfilled, and the execution and delivery hereof have
been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That, in consideration of the
premises and of the mutual covenants herein contained and of the sum of One
Dollar duly paid by the Trustee to the Company at or before the time of the
execution of these presents, and of other valuable considerations, the receipt
whereof is hereby acknowledged, and in order further to secure the payment of
the principal of and interest and premium, if any, on all Bonds at any time
issued and outstanding under the Original Indenture as amended by all indentures
supplemental thereto (hereinafter sometimes collectively called the "Indenture")
according to their tenor, purport and effect, and to declare certain terms and
conditions upon and subject to which Bonds are to be issued and secured, the
Company has executed and delivered this Supplemental Indenture, and by these
presents grants, bargains, sells, warrants, aliens, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and ratifies and confirms unto Harris
Trust and Savings Bank, as Trustee, and to its successors in trust under the
Indenture forever, all and singular the following described properties (in
addition to all other properties heretofore specifically subjected to the lien
of the Indenture and not heretofore released from the lien thereof), that is to
say:
-3-
<PAGE>
FIRST.
All and singular the rents, real estate, chattels real, easements,
servitudes, and leaseholds of the Company, or which, subject to the provisions
of Article XII of the Original Indenture, the Company may hereafter acquire,
including, among other things, the property described in Appendix A hereto under
the caption "First", which description is hereby incorporated herein by
reference and made a part hereof as if fully set forth herein, together with all
improvements of any type located thereon.
SECOND.
Also all transmission and distribution systems used for the transmission
and distribution of electricity, steam, water, gas and other agencies for light,
heat, cold or power, or any other purpose whatever, whether underground or
overhead or on the surface or otherwise of the Company, or which, subject to the
provisions of Article XII of the Original Indenture, the Company may hereafter
acquire, including all poles, posts, wires, cables, conduits, mains, pipes,
tubes, drains, furnaces, switchboards, transformers, insulators, meters, lamps,
fuses, junction boxes, water pumping stations, regulator stations, town border
metering stations and other electric, steam, water and gas fixtures and
apparatus.
THIRD.
Also all franchises and all permits, ordinances, easements, privileges and
immunities and licenses, all rights to construct, maintain and operate overhead,
surface and underground systems for the distribution and transmission of
electricity, gas, water or steam for the supply to itself or others of light,
heat, cold or power or any other purpose whatsoever, all rights-of-way, all
waters, water rights and flowage rights and all grants and consents, now owned
by the Company or, subject to the provisions of Article XII of the Original
Indenture, which it may hereafter acquire.
Also all inventions, patent rights and licenses of every kind now owned by
the Company or, subject to the provisions of Article XII of the Original
Indenture, which it may hereafter acquire.
FOURTH.
Also, subject to the provisions of Article XII of the Original Indenture,
all other property, real, personal and mixed (except as therein or herein
expressly excepted) of every
-4-
<PAGE>
nature and kind and wheresoever situated now or hereafter possessed by or
belonging to the Company, or to which it is now, or may at any time hereafter
be, in any manner entitled at law or in equity.
FIFTH.
Together with all and singular, the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders,
tolls, rents, revenues, issues, income, products and profits thereof, and all
the estate, right, title, interest and claim whatsoever, at law and in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, all properties of the character
excepted from the lien of the Original Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged, pledged and conveyed by the Company as aforesaid, or intended so to
be, unto the Trustee and its successors and assigns forever;
SUBJECT, HOWEVER, to the exceptions and reservations hereinabove referred
to, to existing leases other than leases which by their terms are subordinate to
the lien of the Indenture, to existing liens upon rights-of-way for transmission
or distribution line purposes, as defined in Article I of the Original
Indenture; and any extensions thereof, and subject to existing easements for
streets, alleys, highways, rights-of-way and railroad purposes over, upon and
across certain of the property hereinbefore described and subject also to all
the terms, conditions, agreements, covenants, exceptions and reservations
expressed or provided in the deeds or other instruments respectively under and
by virtue of which the Company acquired the properties hereinabove described and
to undetermined liens and charges, if any, incidental to construction or other
existing permitted liens as defined in Article I of the Original Indenture;
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Original
Indenture, and the indentures supplemental thereto, including this Thirty-Third
Supplemental Indenture, set forth, for the equal and proportionate benefit and
security of all present and future holders of the Bonds and coupons issued and
to be issued thereunder, or any of them, without preference of any of said Bonds
and coupons of any particular se-
-5-
<PAGE>
ries over the Bonds and coupons of any other series by reason of priority in the
time of issue, sale or negotiation thereof, or by reason of the purpose of issue
or otherwise howsoever, except as otherwise provided in Section 2 of Article IV
of the Original Indenture.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto for the benefit of those who shall hold the Bonds and coupons, or
any of them, to the be issued under the Indenture as follows:
ARTICLE I
Description of Bonds of the First
and Second Convertible Series
SECTION 1. The First and Second Convertible Series of Bonds to be executed,
authenticated and delivered under and secured by the Original Indenture shall be
Bonds of the 6-7/8% Convertible Series and Bonds of the 7-1/8% Convertible
Series. The Bonds of the First Convertible Series shall be designated as "First
Mortgage Bonds, 6-7/8% First Convertible Series Due 2004 convertible at the
option of the Company into 6-7/8% Unsecured Senior Notes Due 2004" of the
Company. The Bonds of the Second Convertible Series shall be designated as
"First Mortgage Bonds, 7-1/8% Second Convertible Series Due 2009, convertible at
the option of the Company into 7-1/8% Unsecured Senior Notes Due 2009" of the
Company. Each of the Bonds of the First and Second Convertible Series shall be
executed, authenticated and delivered in accordance with provisions of, and
shall in all respects be subject to, all of the terms, conditions and covenants
of the Original Indenture, as amended, and subject to all the terms, conditions
and covenants of this Supplemental Indenture.
Bonds of the First Convertible Series shall mature August 1, 2004 and shall
bear interest at the rate of six and seven-eighths percent (6-7/8%) per annum
payable semiannually on the 1st days of February and August in each year,
commencing February 1, 1998. Bonds of the Second Convertible Series shall mature
August 1, 2009, and shall bear interest at the rate of seven and one-eighth
percent (7-1/8%) per annum payable semiannually on the 1st days of February and
August in each year, commencing February 1, 1998. Every Bond of the First and
Second Convertible Series shall be dated the date of authentication except that,
notwithstanding the provisions of Section 6 of Article II of the Original
Indenture, if any Bond of the First or Second Convertible Series shall be
authenticated at any time subsequent to the record date (as hereinafter in this
Section defined) for any interest payment date but prior to the
-6-
<PAGE>
day following such interest payment date, it shall be dated as of the day
following such interest payment date, provided, however, that if at the time of
authentication of any Bond of the First or Second Convertible Series interest
shall be in default on any such Bond of the First or Second Convertible Series,
such Bond shall be dated as of the day following the interest payment date to
which interest has previously been paid in full or made available for payment in
full on outstanding Bonds of the First or Second Convertible Series or, if no
interest has been paid or made available for payment, as of the date of initial
authentication and delivery of such Bond. Every Bond of the First or Second
Convertible Series shall bear interest from the February 1 or August 1 next
preceding the date thereof, unless such Bond shall be dated prior to February 1,
1998, in which case it shall bear interest from August 11, 1997.
The person in whose name any Bond of the First or Second Convertible Series
is registered at the close of business on any record date with regard to any
interest payment shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Bond upon
the transfer or exchange or the conversion thereof subsequent to such record
date and prior to the day following such interest payment date, provided that
accrued interest on Bonds of the First or Second Convertible Series converted
after a record date but before the related interest payment date, shall be paid
to the holder of record of such Bonds of the First or Second Convertible Series
on such interest payment date, and the New Senior Notes into which such Bonds of
the First or Second Convertible Series shall have been converted will begin to
accrue interest from such interest payment date, unless 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 is registered on the date of payment of such defaulted interest. The
term "record date" as used in this Section with regard to any semiannual
interest payment date shall mean the close of business on the tenth day next
preceding such interest payment date, or, if such tenth day is not a business
day, the business day next preceding such tenth day. The Bonds of the First and
Second Convertible Series shall be payable as to principal, premium, if any, and
interest, in any coin or currency of the United States of America which at the
time of payment is legal tender for public and private debts, at the agency of
the Company in the City of Chicago, Illinois, or at the option of the holder
thereof at the agency of the Company in the Borough of Manhattan, The City of
New York, provided that at the option of the Company interest may be paid by
check mailed to the holder at such holder's registered address.
-7-
<PAGE>
SECTION 2. The Bonds of the First and Second Convertible Series shall be
registered bonds without coupons of the denominations of $1,000 and of any
multiples of $1,000, numbered consecutively from R1 upwards. Bonds of the First
Convertible Series may be interchanged for each other and Bonds of the Second
Convertible Series may be interchanged for each other in authorized
denominations and in the same aggregate principal amounts, without charge,
except for any tax or governmental charge imposed in connection with such
interchange.
SECTION 3. The Bonds of the First Convertible Series, and the Trustee's
Certificate with respect thereto, shall be substantially in the following forms,
respectively:
-8-
<PAGE>
[FORM OF FACE OF BOND OF THE FIRST CONVERTIBLE SERIES]
WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, 6-7/8% CONVERTIBLE SERIES DUE 2004
Convertible at the option of the Company into 6-7/8%
Unsecured Senior Notes Due 2004
DUE AUGUST 1, 2004
No. ___________ $____________
WESTERN RESOURCES, INC., a corporation organized and existing under the
laws of the State of Kansas (hereinafter called "the Company", which term shall
include any successor corporation as defined in the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_______________________ or registered assigns, on the first day of August, 2004
the sum of _____________________ Dollars in any coin or currency of the United
States of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon in like coin or currency from the
first day of February or August next preceding the date of this Bond at the rate
of six and seven-eighths percent (6-7/8%) per annum, payable semiannually, on
the first days of February and August in each year, commencing February 1, 1998
(on which date interest from August 11, 1997 will be payable), until maturity,
or, if the Company shall default in the payment of the principal hereof, until
the Company's obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture hereinafter mentioned. The interest
payable on any February 1 or August 1 as aforesaid will be paid to the person in
whose name this Bond is registered at the close of business on the tenth day
next preceding such interest payment date, or if such tenth day is not a
business day, the business day next preceding such tenth day, unless 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
this Bond is registered on the date of payment of such defaulted interest.
Principal of and premium, if any, and interest on, this Bond are payable at the
-9-
<PAGE>
agency of the Company in the City of Chicago, Illinois, or, at the option of the
holder hereof, at the agency of the Company in the Borough of Manhattan, The
City of New York, provided that at the option of the Company interest may be
paid by check mailed to the holder at such holder's registered address.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until Harris Trust and Savings Bank, the Trustee under the Indenture, or a
successor trustee thereto under the Indenture, shall have signed the form of
certificate endorsed hereon.
The provisions of this Bond are continued on the reverse hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board and Chief Executive Officer or
its President or a Vice President, manually or by facsimile, and its corporate
seal (or a facsimile thereof) to be hereto affixed and attested by its Secretary
or an Assistant Secretary, manually or by facsimile.
Dated:
WESTERN RESOURCES, INC.
By______________________________
Attest:
- --------------------------
Secretary
-10-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated herein, described
in the within-mentioned Mortgage and Deed of Trust of July 1, 1939 and
Supplemental Indenture dated August 11, 1997.
HARRIS TRUST AND SAVINGS BANK,
Trustee,
By_________________________________
Authorized Officer
-11-
<PAGE>
[FORM OF REVERSE OF BOND OF THE FIRST CONVERTIBLE SERIES]
WESTERN RESOURCES, INC.
First Mortgage Bond, 6-7/8% Convertible Series Due 2004
Convertible at the option of the Company into 6-7/8%
Unsecured Senior Notes Due 2004
DUE AUGUST 1, 2004
(CONTINUED)
This Bond is one of a duly authorized issue of Bonds of the Company (herein
called the "Bonds"), in unlimited aggregate principal amount, of the series
hereinafter specified, all issued and to be issued under and equally secured by
a Mortgage and Deed of Trust, dated July 1, 1939, executed by the Company to
Harris Trust and Savings Bank (herein called the "Trustee"), as Trustee, as
amended by the indentures supplemental thereto including the indenture
supplemental thereto dated August 11, 1997 (herein called the "Supplemental
Indenture"), between the Company and the Trustee (said Mortgage and Deed of
Trust, as so amended, being herein called the "Indenture") to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the properties mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered owners of the Bonds and of
the Trustee in respect thereto, and the terms and conditions upon which the
Bonds are, and are to be, secured. The Bonds may be issued in series, for
various principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided. This Bond
is one of a series designated as the "First Mortgage Bonds, 6-7/8% Convertible
Series Due 2004 convertible at the option of the Company into 6-7/8% Unsecured
Senior Notes Due 2004" (herein called "Bonds of the First Convertible Series")
of the Company, issued under and secured by the Indenture executed by the
Company to the Trustee.
To the extent permitted by, and as provided in the Indenture, modifications
or alterations of the Indenture or of any indenture supplemental thereto, and of
the rights and obligations of the Company and of the holders of the Bonds and
coupons, may be made with the consent of the Company by an affirmative vote of
not less than 60% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bond-
-12-
<PAGE>
holders called and held as provided in the Indenture, and by an affirmative vote
of not less than 60% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration, in case
one or more but less than all of the series of Bonds then outstanding under the
Indenture are so affected. No modification or alteration shall be made which
will affect the terms of payment of the principal of or premium, if any, or
interest on, this Bond, which are unconditional. The Company has reserved the
right to make certain amendments to the Indenture, without any consent or other
action by holders of the Bonds of this series (i) to the extent necessary from
time to time to qualify the Indenture under the Trust Indenture Act of 1939 (ii)
to delete the requirement that the Company meet a net earnings test as a
condition to authenticating additional Bonds or merging into another company and
(iii) to make certain other amendments which make the provisions for the release
of mortgaged property less restrictive, all as more fully provided in the
Indenture and in the Supplemental Indenture. In addition, once all Bonds issued
prior to January 1, 1997 are no longer outstanding, the Company will be
permitted to issue additional Bonds in an amount equal to 70% of the value of
net bondable property additions not subject to an unfunded prior lien, as
provided in the Original Indenture.
The Bonds of the First Convertible Series are not redeemable prior to
maturity.
In case an event of default, as defined in the Indenture, shall occur, the
principal of all of the Bonds at any such time outstanding under the Indenture
may be declared or may become due and payable, upon the conditions and in the
manner and with the effect provided in the Indenture. The Indenture provides
that such declaration may in certain events be waived by the holders of a
majority in principal amount of the Bonds outstanding.
This Bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, on the books of the Company to be kept for that
purpose at the agency of the Company in the City of Chicago, Illinois, and at
the agency of the Company in the Borough of Manhattan, The City of New York,
upon surrender and cancellation of this Bond and on presentation of a duly
executed written instrument of transfer, and thereupon a new registered Bond or
Bonds of the same series, of the same aggregate principal amount and in
authorized denominations will be issued to the transferee or transferees in
exchange herefor; and this Bond, with or without others of like form and series,
may in like manner be exchanged for one or more new registered Bonds of the same
series of other author-
-13-
<PAGE>
ized denominations but of the same aggregate principal amount; all upon payment
of the charges and subject to the terms and conditions set forth in the
Indenture.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest on this Bond, or for any claim based hereon or on the Indenture
or any indenture supplemental thereto, against any incorporator, or against any
stockholder, director or officer, past, present or future, of the Company, or of
any predecessor or successor corporation, as such, either directly or through
the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Indenture.
At any time the Bonds of the First Convertible Series are outstanding, the
Company may, solely at its option, convert the Bonds of the First Convertible
Series, in whole but not in part, for New Senior Notes(as defined in the
Supplemental Indenture). The New Senior Notes would be identical to the Bonds of
the First Convertible Series with respect to the maturity date, redemption
provisions, interest rate and interest payment dates; however, holders of New
Senior Notes will, among other things, no longer be entitled to the security
provided by the Indenture since the New Senior Notes will be unsecured
obligations of the Company and the financial covenants, the events of default
and certain other terms pertaining to the New Senior Notes will differ from
those pertaining to the Bonds of the First Convertible Series. Holders of Bonds
of the First Convertible Series so converted will be entitled to receive $1,000
in principal amount of New Senior Notes for each $1,000 of principal amount of
Bonds of the First Convertible Series held by such holder as of the date fixed
for Conversion (the "Conversion Date"). In connection with any such conversion,
interest on converted Bonds of the First Convertible Series which has accrued
but has not been paid as of the Conversion Date will accrue on New Senior Notes
from the date on which interest was last paid on the Bonds of the First
Convertible Series so converted, provided that accrued interest on Bonds of the
First Convertible Series converted after a record date but before the related
interest payment date, shall be paid to the holder of record of such Bonds of
the First Convertible Series on such interest payment date, and the New Senior
Notes into which such Bonds of the First Convertible Series shall have been
converted will begin to accrue interest from such interest
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<PAGE>
payment date. The rights of the holders of the Bonds of the First Convertible
Series as bondholders of the Company with respect to the bonds converted will
cease and the person or persons entitled to receive the New Senior Notes
issuable upon Conversion will be treated as the registered holder or holders of
such New Senior Notes from the Conversion Date. Each holder of a Bond of the
First Convertible Series and each owner hereof by the acceptance of this Bond
and as part of the consideration for the issue hereof does so agree. New Senior
Notes issued in conversion of Bonds of the First Convertible Series will be
issued in principal amounts of $1,000 and integral multiples thereof. The
Company may condition its obligation to convert Bonds of the First Convertible
Series upon the satisfaction of certain conditions to be specified in the notice
referred to below. The Company will mail to each holder of record of the Bonds
of the First Convertible Series to be converted into New Senior Notes written
notice thereof at least 15 and not more than 120 days prior to the Conversion
Date. The notice must state (i) the Conversion Date, (ii) the place or places
where certificates for Bonds of the First Convertible Series may be surrendered
for conversion into New Senior Notes, (iii) that interest on the New Senior
Notes will accrue from the date on which interest on the Bonds of the First
Convertible Series was last paid (except in the case of a Conversion Date after
a record date, but before the related interest payment date, in which case
interest will accrue from the interest payment date next following such record
date) and interest on Bonds of the First Convertible Series shall henceforth no
longer accrue, (iv) the conditions, if any, required to be satisfied concurrent
with or prior to the Conversion Date, (v) that whether or not certificates for
Bonds of the First Convertible Series are surrendered for conversion on such
Conversion Date, holders of the Bonds of the First Convertible Series will be
treated as holders of New Senior Notes from and after the Conversion Date, (vi)
on and after the Conversion Date Bonds of the First Convertible Series shall be
deemed refundable bonds, and may be used for any purpose provided for such bonds
under the Mortgage.
SECTION 4. The Bonds of the Second Convertible Series and the Trustee's
Certificate with respect thereto, shall be substantially in the following forms,
respectively:
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<PAGE>
[FORM OF FACE OF BOND OF THE SECOND CONVERTIBLE SERIES]
WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, 7-1/8% CONVERTIBLE SERIES DUE 2009
Convertible at the option of the Company into 7-1/8%
Unsecured Senior Notes Due 2009
DUE AUGUST 1, 2009
No. ___________ $____________
WESTERN RESOURCES, INC., a corporation organized and existing under the
laws of the State of Kansas (hereinafter called "the Company", which term shall
include any successor corporation as defined in the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_______________________ or registered assigns, on the first day of August 2009
the sum of _____________________ Dollars in any coin or currency of the United
States of America which at the time of payment is legal tender for public and
private debts, and to pay interest thereon in like coin or currency from the
first day of February or August next preceding the date of this Bond at the rate
of seven and one-eighth percent (7-1/8%) per annum, payable semiannually, on the
first days of February and August in each year, commencing February 1, 1998 (on
which date interest from August 11, 1997 will be payable), until maturity, or,
if the Company shall default in the payment of the principal hereof, until the
Company's obligation with respect to the payment of such principal shall be
discharged as provided in the Indenture hereinafter mentioned. The interest
payable on any February 1 or August 1 as aforesaid will be paid to the person in
whose name this Bond is registered at the close of business on the tenth day
next preceding such interest payment date, or if such tenth day is not a
business day, the business day next preceding such tenth day, unless 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
this Bond is registered on the date of payment of such defaulted interest.
Principal of and premium, if any, and interest on, this Bond are payable at the
agency of the Company in the City of Chicago, Illinois, or, at
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the option of the holder hereof, at the agency of the Company in the Borough of
Manhattan, The City of New York, provided that at the option of the Company
interest may be paid by check mailed to the holder at such holder's registered
address.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until Harris Trust and Savings Bank, the Trustee under the Indenture, or a
successor trustee thereto under the Indenture, shall have signed the form of
certificate endorsed hereon.
The provisions of this Bond are continued on the reverse hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board and Chief Executive Officer or
its President or a Vice President, manually or by facsimile, and its corporate
seal (or a facsimile thereof) to be hereto affixed and attested by its Secretary
or an Assistant Secretary, manually or by facsimile.
Dated:
WESTERN RESOURCES, INC.
By_________________________________
Attest:
- --------------------------
Secretary
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[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated herein, described
in the within-mentioned Mortgage and Deed of Trust of July 1, 1939 and
Supplemental Indenture dated August 11, 1997.
HARRIS TRUST AND SAVINGS BANK,
Trustee,
By________________________________
Authorized Officer
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<PAGE>
[FORM OF REVERSE OF BOND OF THE SECOND CONVERTIBLE SERIES]
WESTERN RESOURCES, INC.
First Mortgage Bond, 7-1/8 % Convertible Series Due 2009
Convertible at the option of the Company into 7-1/8%
Unsecured Senior Notes Due 2009
DUE AUGUST 1, 2009
(CONTINUED)
This Bond is one of a duly authorized issue of Bonds of the Company (herein
called the "Bonds"), in unlimited aggregate principal amount, of the series
hereinafter specified, all issued and to be issued under and equally secured by
a Mortgage and Deed of Trust, dated July 1, 1939, executed by the Company to
Harris Trust and Savings Bank (herein called the "Trustee"), as Trustee, as
amended by the indentures supplemental thereto including the indenture
supplemental thereto dated August 11, 1997 (herein called the "Supplemental
Indenture"), between the Company and the Trustee (said Mortgage and Deed of
Trust, as so amended, being herein called the "Indenture") to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the properties mortgaged and pledged, the nature and extent of
the security, the rights of the bearers or registered owners of the Bonds and of
the Trustee in respect thereto, and the terms and conditions upon which the
Bonds are, and are to be, secured. The Bonds may be issued in series, for
various principal sums, may mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided. This Bond
is one of a series designated as the "First Mortgage Bonds, 7-1/8 % Convertible
Series Due 2009 convertible at the option of the Company into 7-1/8 % Unsecured
Senior Notes due 2009" (herein called "Bonds of the Second Convertible Series")
of the Company, issued under and secured by the Indenture executed by the
Company to the Trustee.
To the extent permitted by, and as provided in the Indenture, modifications
or alterations of the Indenture or of any indenture supplemental thereto, and of
the rights and obligations of the Company and of the holders of the Bonds and
coupons, may be made with the consent of the Company by an affirmative vote of
not less than 60% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bond-
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holders called and held as provided in the Indenture, and by an affirmative vote
of not less than 60% in principal amount of the Bonds of any series entitled to
vote then outstanding and affected by such modification or alteration, in case
one or more but less than all of the series of Bonds then outstanding under the
Indenture are so affected. No modification or alteration shall be made which
will affect the terms of payment of the principal of or premium, if any, or
interest on, this Bond, which are unconditional. The Company has reserved the
right to make certain amendments to the Indenture, without any consent or other
action by holders of the Bonds of this series (i) to the extent necessary from
time to time to qualify the Indenture under the Trust Indenture Act of 1939 (ii)
to delete the requirement that the Company meet a net earnings test as a
condition to authenticating additional Bonds or merging into another company and
(iii) to make certain other amendments which make the provisions for the release
of mortgaged property less restrictive, all as more fully provided in the
Indenture and in the Supplemental Indenture. In addition, once all Bonds issued
prior to January 1, 1997 are no longer outstanding, the Company will be
permitted to issue additional Bonds in an amount equal to 70% of the value of
net bondable property additions not subject to an unfunded prior lien, as
provided in the Original Indenture.
The Bonds of the Second Convertible Series are not redeemable prior to
maturity.
In case an event of default, as defined in the Indenture, shall occur, the
principal of all of the Bonds at any such time outstanding under the Indenture
may be declared or may become due and payable, upon the conditions and in the
manner and with the effect provided in the Indenture. The Indenture provides
that such declaration may in certain events be waived by the holders of a
majority in principal amount of the Bonds outstanding.
This Bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, on the books of the Company to be kept for that
purpose at the agency of the Company in the City of Chicago, Illinois, and at
the agency of the Company in the Borough of Manhattan, The City of New York,
upon surrender and cancellation of this Bond and on presentation of a duly
executed written instrument of transfer, and thereupon a new registered Bond or
Bonds of the same series, of the same aggregate principal amount and in
authorized denominations will be issued to the transferee or transferees in
exchange herefor; and this Bond, with or without others of like form and series,
may in like manner be exchanged for one or more new registered Bonds of the same
series of other author-
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<PAGE>
ized denominations but of the same aggregate principal amount; all upon payment
of the charges and subject to the terms and conditions set forth in the
Indenture.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest on this Bond, or for any claim based hereon or on the Indenture
or any indenture supplemental thereto, against any incorporator, or against any
stockholder, director or officer, past, present or future, of the Company, or of
any predecessor or successor corporation, as such, either directly or through
the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Indenture.
At any time the Bonds of the Second Convertible Series are outstanding, the
Company may, solely at its option, convert the Bonds of the Second Convertible
Series, in whole but not in part, for New Senior Notes(as defined in the
Supplemental Indenture). The New Senior Notes would be identical to the Bonds of
the Second Convertible Series with respect to the maturity date, redemption
provisions, interest rate and interest payment dates; however, holders of New
Senior Notes will, among other things, no longer be entitled to the security
provided by the Indenture since the New Senior Notes will be unsecured
obligations of the Company and the financial covenants, the events of default
and certain other terms pertaining to the New Senior Notes will differ from
those pertaining to the Bonds of the Second Convertible Series. Holders of Bonds
of the Second Convertible Series so converted will be entitled to receive $1,000
in principal amount of New Senior Notes for each $1,000 of principal amount of
Bonds of the Second Convertible Series held by such holder as of the date fixed
for Conversion (the "Conversion Date"). In connection with any such conversion,
interest on converted Bonds of the Second Convertible Series which has accrued
but has not been paid as of the Conversion Date will accrue on New Senior Notes
from the date on which interest was last paid on the Bonds of the Second
Convertible Series so converted, provided that accrued interest on Bonds of the
Second Convertible Series converted after a record date but before the related
interest payment date, shall be paid to the holder of record of such Bonds of
the Second Convertible Series on such interest payment date, and the New Senior
Notes into which such Bonds of the Second Convertible Series shall have been
converted will begin to accrue interest from such interest
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<PAGE>
payment date. The rights of the holders of the Bonds of the Second Convertible
Series as bondholders of the Company with respect to the bonds converted will
cease and the person or persons entitled to receive the New Senior Notes
issuable upon conversion will be treated as the registered holder or holders of
such New Senior Notes from the Conversion Date. Each holder of a Bond of the
Second Convertible Series and each owner hereof by the acceptance of this Bond
and as part of the consideration for the issue hereof does so agree. New Senior
Notes issued in conversion of Bonds of the Second Convertible Series will be
issued in principal amounts of $1,000 and integral multiples thereof. The
Company may condition its obligation to convert Bonds of the Second Convertible
Series upon the satisfaction of certain conditions to be specified in the notice
referred to below. The Company will mail to each holder of record of the Bonds
of the Second Convertible Series to be converted into New Senior Notes written
notice thereof at least 15 and not more than 120 days prior to the Conversion
Date. The notice must state (i) the Conversion Date, (ii) the place or places
where certificates for Bonds of the Second Convertible Series may be surrendered
for conversion into New Senior Notes, (iii) that interest on the New Senior
Notes will accrue from the date on which interest on the Bonds of the Second
Convertible Series was last paid (except in the case of a Conversion Date after
a record date, but before the related interest payment date, in which case
interest will accrue from the interest payment date next following such record
date) and interest on Bonds of the Second Convertible Series shall henceforth no
longer accrue, (iv) the conditions, if any, required to be satisfied concurrent
with or prior to the Conversion Date, (v) that whether or not certificates for
Bonds of the Second Convertible Series are surrendered for conversion on such
Conversion Date, holders of the Bonds of the Second Convertible Series will be
treated as holders of New Senior Notes from and after the Conversion Date, (vi)
on and after the Conversion Date Bonds of the Second Convertible Series shall be
deemed refundable bonds, and may be used for any purpose provided for such bonds
under the Mortgage.
SECTION 5. Until Bonds of the First and Second Convertible Series in
definitive form are ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and deliver, in lieu thereof,
Bonds of the First and Second Convertible Series in temporary form, as provided
in Section 9 of Article II of the Original Indenture.
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ARTICLE II
Issue of Bonds of the First and Second Convertible Series
SECTION 1. The total principal amount of Bonds of the First and Second
Convertible Series which may be authenticated and delivered hereunder is not
limited except as the Original Indenture and this Supplemental Indenture limit
the principal amount of Bonds which may be issued thereunder.
SECTION 2. Bonds of the First Convertible Series for the aggregate
principal amount of Three Hundred and Seventy Million Dollars ($370,000,000) and
Bonds of the Second Convertible Series for the aggregate principal amount of One
Hundred and Fifty Million Dollars ($150,000,000) may forthwith be executed by
the Company and delivered to the Trustee and shall be authenticated by the
Trustee and delivered (either before or after the filing or recording hereof) to
or upon the order of the Company, upon receipt by the Trustee of the
resolutions, certificates, instruments and opinions required by Article III and
Article XVIII of the Original Indenture, as amended.
ARTICLE III
Redemption
SECTION 1. Bonds of the First and Second Convertible Series are not
redeemable prior to maturity.
ARTICLE IV
Additional Covenants
The Company hereby covenants, warrants and agrees:
SECTION 1. That the Company is lawfully seized and possessed of all of the
mortgaged property described in the granting clauses of this Supplemental
Indenture; that it has good, right and lawful authority to mortgage the same as
provided in this Supplemental Indenture; and that such mortgaged property is, at
the actual date of the initial issue of the Bonds of the First and Second
Convertible Series, free and clear of any deed of trust, mortgage, lien, charge
or encumbrance thereon or affecting the title thereto prior to the Indenture,
except as set forth in the granting clauses of the Original Indenture, the
Twenty-Sixth Supplemental Indenture, the Twenty-Eighth Supplemental Indenture,
the Twenty-Ninth Supplemental Indenture, the Thirtieth Supplemental Indenture,
the Thirty-First Supplemental Indenture, the Thirty-Second Supplemental
Indenture or this Supplemental Indenture.
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<PAGE>
SECTION 2. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event that all or substantially all of
the gas properties (either with or without including the gas property in the
City of Atchison, Kansas) shall have been released as an entirety from the lien
of the Original Indenture, the Company will, at any time or from time to time
within six months after the date of such release, retire Bonds outstanding under
the Original Indenture in an aggregate principal amount equal to the lesser of
(a) the fair value of the gas properties so released pursuant to
Section 3 of Article VII of the Original Indenture, as stated in the
engineer's certificate required by Section 3(b) of said Article VII, and
the proceeds of the gas properties so released pursuant to Section 5 of
said Article VII, less the amount of moneys, deposited with the Trustee
pursuant to Sections 3(d), 4(d) and 5 of said Article VII on such release,
withdrawn or reduced pursuant to Section 1 of Article VIII of the Original
Indenture simultaneously with or within three months after such release; or
(a) the greater of
(i) Nine Million Dollars ($9,000,000) plus One Hundred
Seventy-Five Thousand Dollars ($175,000) for each full year
(disregarding any period less than a full year) beginning with July 1,
1949, and ending on the date of such release, less One Million Seven
Hundred Thousand Dollars ($1,700,000), or
(ii) One-half of the fair value of the gas properties so
released, as stated in the engineer's certificate required by Section
3(b) of Article VII of the Original Indenture, and one-half of the
proceeds of the gas properties so released pursuant to Section 5 of
said Article VII.
Such retirement of Bonds shall be effected in either one or both of the
following methods:
(aa) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(bb) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Origi-
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nal Indenture, out of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release.
SECTION 3. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event all or substantially all of the
electric properties shall have been released as an entirety from the lien of the
Original Indenture, the Company will, at any time or from time to time within
six months after the date of such release, retire Bonds outstanding under the
Original Indenture in an aggregate principal amount equal to the fair value of
the electric properties so released pursuant to Section 3 of Article VII of the
Original Indenture, as stated in the engineer's certificate required by Section
3(b) of said Article VII, and the proceeds of the electric properties so
released pursuant to Section 5 of said Article VII. Such retirement of Bonds
shall be effected in either one or both of the following methods:
(a) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(b) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Original Indenture, out of any moneys
deposited with the Trustee pursuant to Sections 3(d), 4(d) and 5 of Article
VII of the Original Indenture upon such release.
The Bonds to be so retired pursuant to this Section 3 shall include a principal
amount of Bonds of each Series then outstanding in the same ratio to the
aggregate principal amount of all Bonds so retired as the aggregate principal
amount of all Bonds of each Series outstanding immediately prior to such release
bears to the total principal amount of all Bonds then outstanding.
ARTICLE V
AMENDMENT OF RATIO OF BONDS ISSUABLE; TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENTS OF NET EARNINGS TEST USE OF
FACSIMILE SIGNATURES. AMENDMENT OF ARTICLE XV. RESERVATION OF
RIGHT TO AMEND ARTICLE VII.
SECTION 1. So long as any of the Bonds of any series originally issued
prior to January 1, 1997 shall remain outstanding:
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(1) Notwithstanding the provisions of Section 4 of Article III of the
Original Indenture, no Bonds shall be authenticated and delivered pursuant
to the provisions of Article III of the Original Indenture and issued upon
the basis of net bondable value of property additions for an aggregate
principal amount in excess of sixty percent (60%) of the net bondable value
of property additions not subject to an unfunded prior lien.
For the purposes of Subsections (e) and (f) of the definition of "net
bondable value of property additions not subject to an unfunded prior
lien", contained in Article I of the Original Indenture, and Subdivisions 8
and 9 of clause (a) of Section 4 of Article III of the Original Indenture,
in all computations made with respect to a period subsequent to April 1,
1949, the deductions therein referred to shall in each case be ten-sixths
(10/6ths) of the respective amounts mentioned, in lieu of ten-sevenths
(10/7ths).
(2) Notwithstanding the provisions of Section 3(a) of Article VIII of
the Original Indenture, no moneys received by the Trustee pursuant to
Section 5(a) of Article III of the Original Indenture shall be paid over by
the Trustee in an amount in excess of sixty percent (60%) of the net
bondable value of property additions not subject to an unfunded prior lien,
and for the purposes of Section 3 of Article VII of the Original Indenture,
the amount of cash required to be deposited by the Company pursuant to
Subsection (d) of said Section 3 of Article VII shall not be reduced in an
amount in excess of sixty percent (60%) of the net bondable value of
property additions not subject to an unfunded prior lien.
(3) For the purposes of clauses (c) and (d) of the definition of "net
bondable value of property additions subject to an unfunded prior lien",
contained in Article I of the Original Indenture, and Subsection 7 of
clause (a) of Section 4 of Article III of the Original Indenture, in all
computations made with respect to a period subsequent to April 1, 1949, the
deductions therein referred to shall in each case be ten-sixths (10/6ths)
of the respective amounts mentioned, in lieu of ten-sevenths (10/7ths).
(4) Subsection (a) of Section 14, clauses (1) and (2) of Subsection
(a) of Section 16 of Article IV and clause (1) of Subsection (b) of Section
1 of Article XII of the Original Indenture shall be deemed amended by
substituting the words "sixty percent (60%)" for "seventy
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percent (70%)" where they appear in said provisions of the Original
Indenture.
(5) The definition of the term "net earnings available for interest,
depreciation and property retirement", as contained in Article I of the
Original Indenture, shall be deemed to mean the net earnings of the Company
ascertained as follows:
(a) The total operating revenues of the Company and the net
non-operating revenues of the properties of the Company shall be
ascertained.
(b) From the total, determined as provided in Subsection (a),
there shall be deducted all operating expenses, including all
salaries, rentals, insurance, license and franchise fees, expenditures
for repairs and maintenance, taxes (other than income, excess profits
and other taxes measured by or dependent on net taxable income),
depreciation as shown on the books of the Company or an amount equal
to the minimum provision for depreciation as hereinafter defined,
whichever is greater, but excluding all property retirement
appropriations, all interest and sinking fund charges, amortization of
stock and debt discount and expense or premium and further excluding
any charges to income or otherwise for the amortization of plant or
property accounts or of amounts transferred therefrom.
(c) The balance remaining after the deduction of the total amount
computed pursuant to Subsection (b) from the total amount computed
pursuant to Subsection (a) shall constitute the "net earnings of the
Company available for interest", provided that not more than fifteen
percent (15%) of the net earnings of the Company available for
interest may consist of the aggregate of (i) net non-operating income,
(ii) net earnings from mortgaged property other than property of the
character of property additions and (iii) net earnings from property
not subject to the lien of this Indenture.
(d) No income received or accrued by the Company from securities
and no profits or losses of capital assets shall be included in making
the computations aforesaid.
(e) In case the Company shall have acquired any acquired plant or
systems or shall have been consoli-
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dated or merged with any other corporation, within or after the
particular period for which the calculation of net earnings of the
Company available for interest, depreciation and property retirement
is made, then, in computing the net earnings of the Company available
for interest, depreciation and property retirement, there may be
included, to the extent they may not have been otherwise included, the
net earnings or net losses of such acquired plant or system or of such
other corporation, as the case may be, for the whole of such period.
The net earnings or net losses of such property additions, or of such
other corporation for the period preceding such acquisition or such
consolidation or merger, shall be ascertained and computed as provided
in the foregoing subsections of this definition as if such acquired
plant or system had been owned by the Company during the whole of such
period, or as if such other corporation had been consolidated or
merged with the Company prior to the first day of such period.
(f) In case the Company shall have obtained the release of any
property pursuant to Section 3 of Article VII of the Original
Indenture, of a fair value in excess of Five Hundred Thousand Dollars
($500,000), as shown by the engineer's certificate required by said
Section 3, or shall have obtained the release of any property pursuant
to Section 5 of Article VII of the Original Indenture, the proceeds of
which shall have exceeded Five Hundred Thousand Dollars ($500,000),
within or after the particular period for which the calculation of net
earnings of the Company available for interest, depreciation and
property retirement is made, then, in computing the net earnings of
the Company available for interest, depreciation and property
retirement, the net earnings or net losses of such property for the
whole of such period shall be excluded to the extent practicable on
the basis of actual earnings and expenses of such property or on the
basis of such estimates of the earnings and expenses of such property
as the signers of an officers' certificate filed with the Trustee
pursuant to Section 3(b) of Article III or Section 16 of Article IV of
the Original Indenture shall deem proper.
The term "minimum charge for depreciation" as used herein shall mean
an amount equal to (a) fifteen percent (15%) of the total operating
revenues of the Company after deducting therefrom an amount equal to the
aggregate cost
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to the Company of electric energy, gas and water purchased for resale to
others and rentals paid for, or other payments made for the use of,
property owned by others and leased to or operated by the Company, the
maintenance of which and depreciation on which are borne by the owners,
less (b) an amount equal to the expenditures for maintenance and repairs to
the plants and property of the Company and included or reflected in its
operating expense accounts.
The terms "net earnings of property available for interest,
depreciation and property retirement" and "net earnings of another
corporation available for interest, depreciation and property retirement"
as contained in Article I of the Original Indenture, when used with respect
to any property or with respect to another corporation, shall mean the net
earnings of such property or the net earnings of such other corporation, as
the case may be, computed in the manner provided in Subsections (a), (b),
(c) and (d) hereof.
(6) Notwithstanding the provisions of clauses (1) and (2) of
subsection (b) of Article III, and Subsection (b) of Section 14 of Article
IV, and Subsection (b) of Section 16 of Article IV and clause (2) of
Subsection (b) of Section 1 of Article XII of the Original Indenture, the
computation of net earnings required therein shall be made as provided in
Subsection (5) of this Section 1, and the net earnings tests required in
said mentioned provisions of Articles III, IV and XII of the Original
Indenture shall be based on two times the annual interest charges described
in such provisions, instead of two and one-half times such charges, but
shall not otherwise affect such provisions or relieve from the requirements
therein pertaining to ten percent (10%) of the principal amount of Bonds
therein described.
SECTION 2. All of the Bonds of the First and Second Convertible Series and
of any series initially issued after the initial issuance of Bonds of the First
and Second Convertible Series shall, from time to time, be executed on behalf of
the Company by its Chairman of the Board, Chief Executive Officer, President or
one of its Vice Presidents whose signature, notwithstanding the provisions of
Section 12 of Article II of the Original Indenture, may be by facsimile, and its
corporate seal (which may be in facsimile) shall be thereunto affixed and
attested by its Secretary or one of its Assistant Secretaries whose signature,
notwithstanding the provisions of the aforesaid Section 12, may be by facsimile.
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<PAGE>
In case any of the officers who have signed or sealed any of the Bonds of
the First or Second Convertible Series or of any series initially issued after
the initial issuance of Bonds of the First or Second Convertible Series manually
or by facsimile shall cease to be such officers of the Company before such Bonds
so signed and sealed shall have been actually authenticated by the Trustee or
delivered by the Company, such Bonds nevertheless may be authenticated, issued
and delivered with the same force and effect as though the person or persons who
so signed or sealed such Bonds had not ceased to be such officer or officers of
the Company; and also any such Bonds may be signed or sealed by manual or
facsimile signature on behalf of the Company by such persons as at the actual
date of the execution of any of such Bonds shall be the proper officers of the
Company, although at the nominal date of any such Bond any such person shall not
have been such officer of the Company.
SECTION 3. Article XV of the Original Indenture is amended so as to
substitute "sixty percent (60%)" for "eighty percent (80%)" wherever appearing
in said Article XV.
SECTION 4. Article XV of the Original Indenture is further amended by
adding thereto a Section 9 to read as follows:
"SECTION 9. (A) Anything in this Article XV contained to the contrary
notwithstanding, the Trustee shall receive the written consent (in any
number of instruments of similar tenor executed by bondholders or by their
attorneys appointed in writing) of the holders of sixty per centum (60%) or
more in principal amount of the bonds outstanding hereunder, and, if the
rights of one or more, but less than all, series of bonds then outstanding
are to be affected by action taken pursuant to such consent, then also by
consent of the holders of at least sixty per centum (60%) in principal
amount of each series of bonds so to be affected and outstanding hereunder
(at the time the last such needed consent is delivered to the Trustee) in
lieu of the holding of a meeting pursuant to this Article XV and in lieu of
all action at such a meeting and with the same force and effect as a
resolution duly adopted in accordance with the provisions of Section 6 of
this Article XV.
"(B) Instruments of consent shall be witnessed or in the alternative
may (a) have the signature guaranteed by a bank or trust company or a
registered dealer in securities, (b) be acknowledged before a Notary Public
or other officer authorized to take ac-
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<PAGE>
knowledgements, or (c) have their genuineness otherwise established to the
satisfaction of the Trustee.
"The amount of bonds payable to bearer, and the series and serial
numbers thereof, held by a person executing an instrument of consent (or
whose attorney has executed an instrument of consent in his behalf), and
the date of his holding the same, may be proved by exhibiting the bonds to
and obtaining a certificate executed by (i) any bank or trust or insurance
company, or (ii) any trustee, secretary, administrator or other proper
officer of any pension, welfare, hospitalization or similar fund or funds,
or (iii) the United States of America, any Territory thereof, the District
of Columbia, any State of the United States, any municipality in any State
of the United States or any public instrumentality of the United States, or
of any State or of any Territory, or (iv) any other person or corporation
satisfactory to the Trustee. A bondholder in any of the foregoing
categories may sign a certificate in his own behalf.
"Each such certificate shall be dated and shall state, in effect,
that, as of the date thereof, a coupon bond or bonds bearing a specified
serial number or numbers was deposited with or exhibited to the signer of
such certificate. The holding by the person named in any such certificate
of any bond specified therein shall be presumed to continue unless (1) any
certificate bearing a later date issued in respect of the same bond shall
be produced, (2) the bond specified in such certificate (or any bond or
bonds issued in exchange or substitution for such bond) shall be produced
by another holder, or (3) the bond specified in such certificate shall be
registered as to principal in the name of another holder or shall have been
surrendered in exchange for a fully registered bond registered in the name
of another holder. The Trustee may nevertheless, in its discretion, require
further proof in cases where it deems further proof desirable. The
ownership of registered bonds shall be proved by the registry books.
"(C) Until such time as the Trustee shall receive the written consent
of the necessary per centum in principal amount of the bonds required by
the provisions of Subsection (A) above for action contemplated by such
consent, any holder of a bond, the serial number of which is shown by the
evidence to be included in the bonds the holders of which have con-
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<PAGE>
sented to such action, may, by filing written notice with the Trustee at
its principal office and upon proof of holding as provided in Subsection
(B) above, revoke such consent so far as it concerns such bond. Except as
aforesaid, any such action taken by the holder of any bond shall be
conclusive and binding upon such holder and upon all future holders of such
bond (and any bond issued in lieu thereof or exchanged therefor),
irrespective of whether or not any notation of such consent is made upon
such bond, and in any event any action taken by the holders of the
percentage in aggregate principal amount of the bonds specified in
Subsection (A) above in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the bonds."
SECTION 5. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of bonds of any
series created after January 1, 1997, to make such amendments to the Original
Indenture, as supplemented, as shall be necessary in order to amend Article VII
thereof by adding thereto a Section 8 and a Section 9 to read as follows:
"SECTION 8. Notwithstanding any other provision of this Indenture,
unless an event of default shall have happened and be continuing, or shall
happen as a result of the making or granting of an application to release
mortgaged property permitted by this Section 8, the Trustee shall release
from the lien of this Indenture any mortgaged property if the fair value to
the Company of all of the property constituting the trust estate (excluding
the mortgaged property to be released but including any mortgaged property
to be acquired by the Company with the proceeds of, or otherwise in
connection with, such release) equals or exceeds an amount equal to 10/7ths
of the aggregate principal amount of outstanding Bonds and prior lien bonds
outstanding at the time of such release, upon receipt by the Trustee of:
"(a) an officers' certificate dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (i) that the
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<PAGE>
signer of such engineer's certificate has examined such officers'
certificate in connection with such release, (ii) the fair value to
the Company, in the opinion of the signer of such engineer's
certificate, of (A) all of the property constituting the trust estate,
and (B) the mortgaged property to be released, in each case as of a
date not more than 90 days prior to the date of such release, and
(iii) that in the opinion of such signer, such release will not impair
the security under this Indenture in contravention of the provisions
hereof;
"(c) in case any bondable property is being acquired by the
Company with the proceeds of, or otherwise in connection with, such
release, an engineer's certificate, dated the date of such release, as
to the fair value to the Company, as of the date not more than 90 days
prior to the date of such release, of the bondable property being so
acquired (and if within six months prior to the date of acquisition by
the Company of the bondable property being so acquired, such bondable
property has been used or operated by a person or persons other than
the Company in a business similar to that in which it has been or is
to be used or operated by the Company, and the fair value to the
Company of such bondable property, as set forth in such certificate,
is not less than $25,000 and not less than 1% of the aggregate
principal amount of Bonds at the time outstanding, such certificate
shall be an independent appraiser's certificate);
"(d) an officer's certificate, dated the date of such release,
stating the aggregate principal amount of outstanding Bonds and prior
lien bonds outstanding at the time of such release, and stating that
the fair value to the Company of all of the property constituting the
trust estate (excluding the mortgaged property to be released but
including any bondable property to be acquired by the Company with the
proceeds of, or otherwise in connection with, such release) stated on
the independent appraiser's certificate filed pursuant to Section 8(c)
equals or exceeds an amount equal to 10/7ths of such aggregate
principal amount;
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<PAGE>
"(e) an officers' certificate, dated the date of such release,
stating that, the Company is not, and by the making or granting of the
application will not be, in default in the performance of any of the
terms and covenants of this Indenture;
"(f) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent.
"SECTION 9. If the Company is unable to obtain, in accordance with any
other Section of this Article VII, the release from the lien of this
Indenture of any property constituting part of the trust estate, unless an
event of default shall have happened and be continuing, or shall happen as
a result of the making or granting of an application to release mortgaged
property permitted by this Section 9, the Trustee shall release from the
lien of this Indenture any mortgaged property if the fair value to the
Company thereof, as shown by the engineer's certificate filed pursuant to
Section 9(b), is less than 1/2 of 1% of the aggregate principal amount of
outstanding Bonds and prior lien bonds outstanding at the time of such
release, provided that the aggregate fair value to the Company of all
mortgaged property released pursuant to this Section 9, as shown by all
engineer's certificates filed pursuant to Section 9(b) in any period of 12
consecutive calendar months which includes the date of such engineer's
certificate, shall not exceed 1% of the aggregate principal amount of the
outstanding Bonds and prior lien bonds outstanding at the time of such
release, upon receipt by the Trustee of:
"(a) an officers' certificate, dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (A) that the signer of such engineer's certificate has
examined such officers' certificate in connection with such release,
(B) the fair value to the Company, in the opinion of the signer of
such engineer's certificate, of such mortgaged property to be released
as of a date not more than
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<PAGE>
90 days prior to the date of such release, and (C) that in the opinion
of such signer such release will not impair the security under this
Indenture in contravention of the provisions hereof;
"(c) an officers' certificate, dated the date of such release,
stating the aggregate principal amount of outstanding Bonds and prior
lien bonds outstanding at the time of such release, that 1/2 of 1% of
such aggregate principal amount does not exceed the fair value to the
Company of the mortgaged property for which such release is applied
for as shown by the engineer's certificate referred to in Section
9(b), and that 1% of such aggregate principal amount does not exceed
the aggregate fair value to the Company of all mortgaged property
released from the lien of this Indenture pursuant to this Section 9 as
shown by all engineer's certificates filed pursuant to Section 9(b) in
such period of 12 consecutive calendar months;
"(d) an officers' certificate, dated the date of such release,
stating that, the Company is not, and by the making or granting of the
application will not be, in default in the performance of any of the
terms and covenants of this Indenture; and
"(e) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent."
The Company also reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to amend, modify or delete any other
provision of the Original Indenture, as supplemented, as may be necessary in
order to effectuate the intents and purposes contemplated by the foregoing
Sections 8 and 9.
SECTION 6. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to:
(a) delete as a condition to the authentication of additional Bonds
pursuant to Sections 4, 5 or 6 of Article III of the Original Indenture the
requirement to file
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<PAGE>
or deposit with the Trustee the officers' certificate described in Section
3(b) of Article III of the Original Indenture;
(b) delete as a condition to the consolidation or merger of the
Company into, or sale by the Company of its property as an entirety or
substantially as an entirety to another corporation the requirement set
forth in Section 1(b)(2) of Article XII of the Original Indenture;
(c) delete as a condition to the release of property pursuant to
Section 3 of Article VII of the Original Indenture, the requirement to
obtain an independent engineer's certificate under the circumstances set
forth in Section 3(c) of Article VII; and
(d) amend, modify or delete any other provision of the Original
Indenture, as supplemented, as may be necessary in order to effectuate the
intents and purposes contemplated by this Section 6.
ARTICLE VI
Conversion of Bonds of the First and Second Convertible Series.
SECTION 1. At any time after the Bonds of the First Convertible Series are
outstanding the Company may, at its option, convert (the "First Convertible
Series Conversion") all, but not less than all, of the then outstanding Bonds of
the First Convertible Series for the same principal amount of the New Senior
Notes. Holders of Bonds of the First Convertible Series so converted will be
entitled to receive $1,000 in principal amount of New Senior Notes for each
$1,000 of principal amount of Bonds of the First Convertible Series held by such
holder, as of the date fixed for the First Convertible Series Conversion. At any
time after the Bonds of the Second Convertible Series are outstanding the
Company may, at its option, convert (the "Second Convertible Series Conversion")
all, but not less than all, of the then outstanding Bonds of the Second
Convertible Series for the same principal amount of the New Senior Notes.
Holders of Bonds of the Second Convertible Series so converted will be entitled
to receive $1,000 in principal amount of New Senior Notes for each $1,000 of
principal amount of Bonds of the Second Convertible Series held by such holder
as of the date fixed for the Second Convertible Series Conversion. The First
Convertible Series Conversion and the Second Convertible Series Conversion are
referred to collectively herein as the "Conversion" and any date set for a
Conversion is referred to as the "Conversion Date".
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<PAGE>
SECTION 2. The Company may condition its obligation to convert the Bonds of
the First or Second Convertible Series upon the satisfaction of such conditions
as the Company may include in the notice required by Section 3 of this Article
VI, and no event of default shall arise hereunder from the failure to convert
such Bonds of the First or Second Convertible Series in the event such
conditions are not satisfied.
SECTION 3. In connection with any such Conversion, interest on converted
Bonds of the First or Second Convertible Series which has accrued but has not
been paid as of the Conversion Date will accrue on New Senior Notes from the
date on which interest was last paid on the Bonds of the First or Second
Convertible Series so converted and interest on such Bonds shall cease to
accrue, provided that accrued interest on Bonds of the First or Second
Convertible Series converted after a record date but before the related interest
payment date, shall be paid to the holder of record of such Bonds of the First
or Second Convertible Series on such interest payment date and interest on such
Bonds shall cease to accrue, and the New Senior Notes into which such Bonds of
the First or Second Convertible Series shall have been converted will begin to
accrue interest from such interest payment date. The rights of the holders of
the Bonds of the First or Second Convertible Series as bondholders of the
Company with respect to the bonds converted will cease and the person or persons
entitled to receive the New Senior Notes issuable upon Conversion will be
treated as the registered holder or holders of such New Senior Notes from the
Conversion Date. New Senior Notes issued in conversion of Bonds of the First or
Second Convertible Series will be issued in principal amounts of $1,000 and
integral multiples thereof. The Company may condition its obligation to convert
Bonds of the First or Second Convertible Series upon the satisfaction of certain
conditions to be specified in the notice referred to below. The Company will
mail to each holder of record of the Bonds of the First or Second Convertible
Series to be converted into New Senior Notes written notice thereof at least 15
and not more than 120 days prior to the Conversion Date. The notice must state
(i) the Conversion Date, (ii) the place or places where certificates for Bonds
of the First or Second Convertible Series may be surrendered for conversion into
New Senior Notes, (iii) that interest on the New Senior Notes will accrue from
the date on which interest on the Bonds of the First or Second Convertible
Series was last paid (except in the case of a Conversion Date after a record
date, but before the related interest payment date, in which case interest will
accrue from the interest payment date next following such record date) and
interest on Bonds of the First or Second Convertible Series shall henceforth no
longer accrue, (iv) the conditions, if any, required to be satisfied concurrent
with or prior to the Con-
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<PAGE>
version Date, (v) that whether or not certificates for Bonds of the First or
Second Convertible Series are surrendered for conversion on such Conversion
Date, holders of the Bonds of the First or Second Convertible Series will be
treated as holders of New Senior Notes from and after the Conversion Date and
(vi) on and after the Conversion Date Bonds of the First or Second Convertible
Series shall be deemed refundable bonds, and may be used for any purpose
provided for such bonds under the Mortgage.
SECTION 4. Any of the Bonds of the First or Second Convertible Series
delivered to the Trustee for conversion pursuant to this Article VI shall be
forthwith canceled by the Trustee, provided that whether or not so delivered all
converted Bonds of the First or Second Convertible Series shall be refundable
Bonds as defined in the Indenture, and shall no longer be outstanding
thereunder, and shall be useable by the Company to satisfy the conditions under
Section 2 of Article VIII of the Original Indenture and in Section 2 of Article
IV of the Twenty-Sixth Supplemental Indenture dated as of February 15, 1990, the
Twenty-Eighth Supplemental Indenture dated July 1, 1992, the Twenty-Ninth
Supplemental Indenture dated as of August 20, 1992, the Thirtieth Supplemental
Indenture dated as of February 1, 1993, the Thirty-First Supplemental Indenture
dated as of April 15, 1993 and the Thirty-Second Supplemental Indenture dated as
of April 15, 1994 and any similar provision contained in any Supplemental
Indenture entered after the date of this Supplemental Indenture.
ARTICLE VII
Miscellaneous Provisions.
SECTION 1. The Trustee accepts the trusts herein declared, provided,
created or supplemented and agrees to perform the same upon the terms and
conditions herein and in the Original Indenture, as amended, set forth and upon
the following terms and conditions.
SECTION 2. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general each and every term and condition
contained in Article XIII of the Original Indenture, as amended by the Second
Supplemental Indenture, shall apply to and form part of this Supplemental
Indenture with the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as may
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<PAGE>
be appropriate to make the same conform to the provisions of this Supplemental
Indenture.
SECTION 3. Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, such reference shall, subject to the provisions
of Articles XII and XIII of the Original Indenture, be deemed to include the
successors and assigns of such party, and all the covenants and agreements in
this Supplemental Indenture contained by or on behalf of the Company, or by or
on behalf of the Trustee, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 4. Nothing in this Supplemental Indenture, expressed or implied, is
intended or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the Bonds and
coupons outstanding under the Indenture, any right, remedy or claim under or by
reason of this Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions, stipulations,
promises and agreements in this Supplemental Indenture contained by and on
behalf of the Company shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the Bonds and of the coupons outstanding under the
Indenture.
SECTION 5. This Supplemental Indenture may be executed in several
counterparts, and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
SECTION 6. The Titles of the several Articles of this Supplemental
Indenture shall not be deemed to be any part thereof.
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<PAGE>
IN WITNESS WHEREOF, WESTERN RESOURCES, INC., party hereto of the first
part, has caused its corporate name to be hereunto affixed, and this instrument
to be signed and sealed by its Chairman of the Board, President, Chief Executive
Officer or a Vice President, and its corporate seal to be attested by its
Secretary or an Assistant Secretary for and in its behalf, and HARRIS TRUST AND
SAVINGS BANK, party hereto of the second part, has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by its Chairman
of the Board, Chief Executive Officer, President or a Vice President and its
corporate seal to be attested by its Secretary or an Assistant Secretary, all as
of the day and year first above written.
(CORPORATE SEAL) WESTERN RESOURCES, INC.
By: /s/ Steven L. Kitchen
-------------------------
Steven L. Kitchen
Executive Vice President
and Chief Financial Officer
ATTEST:
By: /s/ Richard D. Terril
--------------------------
Richard D. Terril
Secretary
Executed, sealed and delivered by
WESTERN RESOURCES, INC.
in the presence of:
By: /s/ Stacy F. Kramer
----------------------------
Stacy F. Kramer
By: /s/ Rita J. Petty
----------------------------
Rita J. Petty
S-1
<PAGE>
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By: /s/ Judith Bartolini
---------------------------------
Judith Bartolini
ATTEST:
By: D.G. Donovan
---------------------------
Executed, sealed and delivered by HARRIS TRUST AND SAVINGS BANK in the presence
of:
By: R. Johnson
---------------------------
By: R. R. Reil
---------------------------
S-2
<PAGE>
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, and who are
personally known to me to be the same persons who executed as such officers the
within instrument of writing, and such persons duly acknowledged the execution
of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
---------------------------
Notary Public
My Commission Expires
<PAGE>
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
BE IT REMEMBERED, that on this ____ day of ______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and _________, of Harris Trust and Savings Bank, a
corporation duly organized, incorporated and existing under the laws of the
State of Illinois, who are personally known to me to be such officers, and who
are personally known to me to be the same persons who executed as such officers
the within instrument of writing, and such persons duly acknowledged the
execution of the same to be the act and deed of said corporation.
-------------------------
Notary Public
My Commission Expires
<PAGE>
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, being by me
respectively duly sworn, did each say that the said __________ is Executive Vice
President and Chief Financial Officer and that the said __________ is Secretary
of said corporation, that the consideration of and for the foregoing instrument
was actual and adequate, that the same was made and given in good faith, for the
uses and purposes therein set forth and without any intent to hinder, delay, or
defraud creditors or purchasers.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
------------------------
Notary Public
My Commission Expires
<PAGE>
APPENDIX A
to
THIRTY-THIRD SUPPLEMENTAL INDENTURE
Dated August 11, 1997
Western Resources, Inc.
to
Harris Trust and Savings Bank
------------
DESCRIPTION OF PROPERTIES
LOCATED IN THE STATE OF KANSAS
FIRST
PARCELS OF REAL ESTATE
DICKINSON COUNTY
Electric Substation
A tract of land in the Northeast Corner of Section 12, Township 14
South, Range 3 East of the Sixth Principal Meridian, Dickinson County,
Kansas, more particularly described as follows:
Commencing at the Northeast Corner of said Northeast Quarter as the
Point of Beginning; thence on an assumed bearing of South 0 degrees, 14
minutes, 56 seconds, East, coincident with the East line of said Northeast
Quarter, a distance of 340.00 feet; thence on a bearing of South 89
degrees, 51 minutes, 22 seconds, West, parallel with the North line of said
Northeast Quarter, a distance of 220.00 feet; thence on a bearing of North
0 degrees, 14 minutes, 56 seconds, West, parallel with the East line of
said Northeast Quarter, a distance of 340.00 feet; thence on a bearing of
North 89 degrees, 51 minutes, 22 seconds, East, on the North line of said
Northeast Quarter, a distance of 220.00 feet to the Point of Beginning.
The above described tract of land contains 1.72 acres, more or less,
less existing road right of way.
App. A-1
<PAGE>
Electric Substation
A tract of land located in the Southeast Quarter of the Northwest
Quarter (SE1/4 NW1/4) of Section 17, Township 13 South, Range 2 East of the
6th P.M., Dickinson County, Kansas, more particularly described as follows:
Beginning at a point 1220 feet West and 30 feet North of the Southeast
Corner of said NW1/4; thence North parallel to the East line of said NW1/4
a distance of 295 feet to a point on the South line of a vacated North
Ninth Street in Boston Heights Addition to the City of Abilene, Kansas;
thence East coincident with the South line of said vacated North Ninth
Street a distance of 170 feet; thence South parallel to the East line of
said NW1/4 a distance of 295 feet; thence West to the Point of Beginning.
JEFFERSON COUNTY
Electric Substation
A tract of land in the Southeast Quarter (SE/4) of Section Twenty-five
(25), Township Seven South (T7S), Range Eighteen East (R18E) of the 6th
P.M., in Jefferson County, Kansas, more particularly described as follows:
Commencing at the Southeast corner (SEcr) of said Southeast Quarter
(SE/4) Section; thence West on AZ 270 degrees, 22 minutes, 15 seconds,
1,478.81 feet coincident with the South line of said Quarter Section;
thence on AZ 05 degrees, 30 minutes, 58 seconds, 35.14 to the North Right
of Way Line of County Road FAS 1325, said point being the POINT OF
BEGINNING; thence continuing North on AZ 05 degrees, 30 minutes, 58
seconds, 523.51 feet; thence on AZ 52 degrees, 28 minutes, 12 seconds,
553.68 feet; thence on AZ 142 degrees, 28 minutes, 12 seconds, 550.00 feet
to the North Right of Way Line of County Road FAS 1325; thence on AZ 232
degrees, 28 minutes, 12 seconds, 545.97 feet coincident with said Right of
Way Line; thence around a curve to the right 288.98 feet having a radius of
436.68 feet and a chord AZ of 251 degrees, 25 minutes, 13 seconds, 283.74
feet, coincident with said Right of Way Line; thence on AZ 270 degrees, 22
minutes, 15 seconds, 122.53 feet to the POINT OF BEGINNING.
App. A-2
<PAGE>
KINGMAN COUNTY
Compressor Station
A tract of land located in the Northwest Quarter (NW/4) of Section
Seven (7), Township Twenty-Eight (28) South, Range Eight (8) West, Kingman
County, more fully described as follows:
Beginning at the Northwest Corner of Section Seven, Township
Twenty-Eight (28) South, Range Eight (8) West, thence East along North Line
of said Section a distance of 1640 feet; thence South 110 feet; thence
West, parallel to the North Line of said Section a distance of 1640 feet;
thence North 110 feet to the place of beginning.
LEAVENWORTH COUNTY
Electric Substation
A tract of land in the Northeast Quarter (NE1/4) of Section 35,
Township 9 South, Range 22 East of the 6th P.M., in Leavenworth County,
Kansas, more particularly described as follows:
Commencing at the Northeast Corner of said NE1/4; thence South 00
degrees, 15 minutes, 15 seconds, East, 1271.9 feet coincident with the East
line of said Quarter Section to the POINT OF BEGINNING; thence continuing
South 00 degrees, 15 minutes, 15 seconds, East, 620.0 feet; thence South 90
degrees, 00 minutes, 00 seconds, East, 480.0 feet to the POINT OF
BEGINNING, containing 6.83 acres, more or less.
MCPHERSON COUNTY
A tract of land in the Southwest Quarter (SW1/4) of Section 7,
Township 17 South, Range 3 West of the 6th P.M., McPherson County, Kansas,
more particularly described as follows:
Commencing at the Southeast Corner of said SW1/4; thence on an assumed
bearing of North 00 degrees, 19 minutes, 04 seconds, West, coincident with
the East Line of said SW1/4, a distance of 30 feet to intersect the North
right of way line of the county road and the POINT OF BEGINNING; thence on
a bearing of South 89 degrees, 27 minutes, 39 seconds, West, coincident
with said North right of way line, a distance of 100 feet; thence North 00
degrees, 19 minutes, 04 seconds, West, parallel with the
App. A-3
<PAGE>
East line of said SW1/4, a distance of 870.00 feet; thence South 89
degrees, 27 minutes, 39 seconds, West, a distance of 300.00 feet; thence
North 00 degrees, 19 minutes, 04 seconds, West, a distance of 560.00 feet;
thence North 89 degrees, 27 minutes, 39 seconds, East, a distance of 400.00
feet; thence South 00 degrees, 19 minutes, 04 seconds, East, a distance of
1,430.00 feet to the POINT OF BEGINNING.
RENO COUNTY
Compressor Station
A tract of land located in the Southeast Quarter (SE/4) of Section
Thirty-Six (36), Township Twenty-Three (23), Range Six (6) West, Reno
County, more fully described as follows:
Beginning on the East line of said SE/4 at a point Three Hundred and
Fifty (350) feet North of the Southeast Corner of said SE/4; thence West,
parallel to the South line of said SE/4 a distance of Six Hundred and Fifty
(650) feet; thence North, parallel to said East line a distance of Two
Hundred and Fifty (250) feet; thence East, parallel to said South line a
distance of Six Hundred and Fifty (650) feet to said East line; thence
South along said East line to the point of beginning.
SALINE COUNTY
Electric Substation
The North 250 feet of Lot One, and all of Lots Two and Three in Block
Two of the Wheatridge Addition to the City of Salina, Saline County,
Kansas.
SECOND
ELECTRICAL TRANSMISSION LINES
LOCATED IN THE STATE OF KANSAS
Line 115-90 6th Street Sub. to
Lawrence Hill Sub.
A 115,000 volt single pole wood and steel, and H-frame wood overhead
electric transmission line three and thirteen hundredths (3.13) miles in
length beginning at 6th Street Substation located in the SW 1/4 of Section
30, Township 12 South, Range 20 East, Douglas County, Kansas;
App. A-4
<PAGE>
thence extending Northwesterly to a point near the Southeast corner NW 1/4
Section 25, Township 12 South, Range 19 East, Douglas County, Kansas;
thence continuing Northwesterly through said Section 25 and 24 to a point
near the Southwest corner NW 1/4 NE 1/4 of said Section 24; thence
Northwesterly to a point near the Northwest corner NE 1/4 NW 1/4 Section
24, Township 12 South, Range 19 East, Douglas County, Kansas; thence
Westerly through the SW 1/4 Section 13, Township 12 South, Range 19 East,
Douglas County, Kansas to a point near the Southwest corner SW 1/4 of said
Section 13; thence Southwesterly through Section 14, Township 12 South,
Range 19 East, Douglas County, Kansas to a point near the Northeast corner
NE 1/4 Section 23, Township 12 South, Range 19 East, Douglas County,
Kansas; thence West to a point near the Northeast corner NW 1/4 NE 1/4 of
said Section 23; thence Northwesterly to a point near the Southeast corner
SW 1/4 SE 1/4 Section 14, Township 12 South, Range 19 East, Douglas County,
Kansas; thence Westerly to a point near the Southeast corner SW 1/4 SW 1/4
NE 1/4 of said Section 14; thence North to a point near the Southeast
corner NW 1/4 SW 1/4 NE 1/4 of said Section 14; thence West to Lawrence
Hill Substation located in the SE 1/4 SW1/4 Section 14, Township 12 South,
Range 19 East, Douglas County, Kansas.
Line 115-47 Wildcat Creek Sub. to
KSU Campus Sub.
A 115,000 volt single pole wood overhead electric transmission line
one and one hundredths (1.01) miles in length beginning at KSU Campus
Substation located in the NW 1/4 Section 7, Township 10 South, Range 8
East, Riley County, Kansas; thence North through said Section 7 and 6 to a
point near the Northwest corner NW 1/4 Section 6, Township 10 South, Range
8 East, Riley County, Kansas; this point connecting with the existing
overhead electric transmission line to Wildcat Creek Substation.
Line 115-47 KSU Campus Sub. to
Matters Corner Sub.
A 115,000 volt single pole wood overhead electric transmission line
one and twenty seven hundredths (1.27) miles in length beginning at KSU
Campus Substation located in the NW 1/4 Section 7, Township 10 South, Range
8 East, Riley County, Kansas; thence East to a point near the Southeast
corner NW 1/4
App. A-5
<PAGE>
NW 1/4 of said Section 7; thence Northeasterly through said Section 7 and 6
to Matters Corner Substation located near the Northeast corner NW 1/4
Section 6, Township 10 South, Range 8 East, Riley County, Kansas.
Line 115-88 Southtown Sub. to
Southtown Jct.
A 115,000 volt single and double circuit, single pole wood, overhead
electric transmission line forty hundredths (0.40) miles in length,
beginning at Southtown Substation located near the Southwest corner SW 1/4,
Section 36, Township 13 South, Range 23 East, Johnson County, Kansas;
thence extending Easterly to Southtown Junction, located near the Southwest
corner SW 1/4 SE 1/4, Section 36, Township 13 South, Range 23 East, Johnson
County, Kansas.
THIRD
NATURAL GAS FACILITIES
RENO COUNTY
Compressor Station
A certain gas fired, reciprocating, electric motor driven 7500
horsepower compressor station connecting Company Line No. 1612 to Yaggy
Storage Field located on a tract in the Southeast Quarter (SE/4) of Section
Twenty-Five (25), Township Twenty-Two (22) South, Range Seven (7) West,
Reno County.
Natural Gas Storage Field (Yaggy)
A certain bedded salt, natural gas storage field, including bedded
salt caverns, wellhead facilities, valving and piping, located on tracts in
the South One-Half (S/2) of Section Thirty (30), and the Southwest Quarter
(SW/4) of Section Twenty-Five (25), all in Township Twenty-Two (22) South,
Range Six (6) West, Reno County.
FOURTH
PIPELINES LOCATED
IN THE STATE OF KANSAS
Line 1 - Line 1612
A certain sixteen (16) inch steel gas transmission line approximately
eleven and seventy-four hundredths (11.74) miles in length commencing at a
point of connection with Company Compressor (Hutchinson) in the Southeast
App. A-6
<PAGE>
Quarter (SE/4) of Section Thirty-Six (36), Township Twenty-Three (23)
South, Range Six (6) West, Reno County; thence extending in a Northwesterly
direction to a point of connection with Company Storage (Yaggy) in the
Southeast Quarter (SE/4) of Section Twenty-Five (25), Township Twenty-Two
(22) South, Range Seven (7) West, Reno County.
Line 2 - Line 0481
A certain four (4) inch steel gas transmission line approximately one
and twenty hundredths (1.20) miles in length commencing at a point of
connection with Company Line 0481 in the Northeast Quarter (NE/4) of
Section Six (6), Township Thirty-Three (33) South, Range Twenty-Two (22)
West, Clark County; thence extending in a southwesterly direction to a
point of connection with Company Ashland Town Border Station in the
Southeast Quarter (SE/4) of Section One (1), Township Thirty-Three (33)
South, Range Twenty-Three (23) West, Clark County.
Line 3 - Line 0633
A certain six (6) inch steel gas transmission line approximately nine
and fourteen hundredths (9.14) miles in length commencing at a point of
connection with Company Line 0854 in the Southeast Quarter (SE/4) of
Section Fourteen (14), Township Nineteen (19) South, Range One (1) West,
McPherson County; thence extending East to a point of connection with
Company Line 0440 in the Northwest Quarter (NW/4) of Section Twenty-One
(21), Township Nineteen (19) South, Range Two (2) East, Marion County.
Line 4 - Line 1009
A certain ten (10) inch steel gas transmission line approximately six
and thirty-five hundredths (6.35) miles in length commencing at a point of
connection with Others' Facilities in the Northwest Quarter (NW/4) of
Section Two (2), Township Thirty-One (31) South, Range Thirty-Six (36)
West, Stevens County; thence extending northeasterly to a point of
connection with Company Metering Facilities located in the Northeast
Quarter (NE/4) of Section Five (5), Township Thirty (30) South, Range
Thirty-Five (35) West, Grant County.
Line 5 - Line 1211
A certain twelve (12) inch steel gas transmission line approximately
six and fifty hundredths (6.50) miles in length commencing at a point of
connection with Company
App. A-7
<PAGE>
Line 1211 in the Southwest Quarter (SW/4) of Section Twenty-Nine (29),
Township Seventeen (17) South, Range Two (2) West, McPherson County; thence
extending in a northerly direction to a point of connection with Company
Line 0803 in the Northwest Quarter (NW/4) of Section Thirty-One (31),
Township Sixteen (16) South, Range Two (2) West, Saline County.
Line 6 - Line 0842
A certain eight (8) inch steel gas transmission line approximately
twenty-nine and fifty hundredths (29.50) miles in length commencing at a
point of connection with Company Line 0842 in the Northwest Quarter (NW/4)
of Section Nine (9), Township Nineteen (19) South, Range Thirteen (13)
West, Barton County; thence extending in a north-northwesterly direction to
a point of connection with Company Line 0853 in the Southeast Quarter
(SE/4) of Section Twenty-seven (27), Township Seventeen (17) South, Range
Seventeen (17) West, Rush County.
Line 7 - Line 0630
A certain six (6) inch steel gas transmission line approximately four
and thirty hundredths (4.30) miles in length commencing at a point of
connection with Company Line 0630 in the Southwest Quarter (SW/4) of
Section Eleven (11), Township Nineteen (19) South, Range Two (2) West,
McPherson County; thence extending in a northwesterly direction to a point
of connection with Company Metering Facility (Salina Check Meter) in the
Southwest Quarter (SW/4) of Section Twenty-Nine (29), Township Eighteen
(18) South, Range Two (2) West, Saline County.
Line 8 - Line 0853
A certain eight (8) inch steel gas transmission line approximately
four and ninety hundredths (4.90) miles in length commencing at a point of
connection with Company Line 0853 in the Southwest Quarter (SW/4) of
Section Three (3), Township Fourteen (14) South, Range Sixteen (16) West,
Ellis County; thence extending in an east-northeasterly direction to a
point of connection with Company Line 0608 the Northwest Quarter (NW/4) of
Section Thirty-Three (33), Township Thirteen (13) South, Range Fifteen (15)
West, Russell County.
App. A-8
<PAGE>
Line 9 - Line 0633
A certain six (6) inch steel gas transmission line approximately four
and fifty-seven hundredths (4.57) miles in length commencing at a point of
connection with Company Line 0406 in the Northwest Quarter (NW/4) of
Section Eight (8), Township Nineteen (19) South, Range Three (3) East,
Marion County; thence extending in an easterly direction to a point of
connection with Company Line 0405 the Northeast Quarter (NE/4) of Section
Twelve (12), Township Nineteen (19) South, Range Three (3) East, Marion
County.
Line 10 - Line 2401
A certain twenty-four (24) inch steel gas transmission line
approximately one (1) mile in length commencing at a point of connection
with Company Line 2202 in the Southeast Quarter (SE/4) of Section
Thirty-Six (36), Township Twenty-Three (23) South, Range Six (6) West, Reno
County; thence extending in a Northeasterly direction to a point of
connection with Company Line 2401 in the Northwest Quarter (NW/4) of
Section Thirty-One (31), Township Twenty-Three (23) South, Range Five (5)
West, Reno County.
Line 11 - Line 1006
A certain ten (10) inch steel gas transmission line approximately
seven and seventy-nine hundredths (7.79) miles in length commencing at a
point of connection with Company Line 1006 in the Northwest Quarter (NW/4)
of Section Thirty-Five (35), Township Thirty-One (31) South, Range Forty
(40) West, Morton County; thence extending in a southerly direction to a
point of connection with Others Facility (Anadarko Petroleum Company) in
the Southwest Quarter (SW/4) of Section Two (2), Township Thirty-Three (33)
South, Range Forty (40) West, Morton County.
Line 12 - Line 1220
A certain twelve (12) inch steel gas transmission line approximately
zero and thirty-eight hundredths (0.38) miles in length commencing at a
point of connection with Company Line 1605 in the Southeast Quarter (SE/4)
of Section Fourteen (14), Township Nineteen (19) South, Range Three (3)
West, McPherson County; thence extending in an easterly direction to a
point of connection with Others Facility (BPU) in the Northwest Quarter
(NW/4) of Section Twenty-Four (24), Township Nineteen (19) South, Range
Three (3) West, McPherson County.
App. A-9
Exhibit 4.2
================================================================================
WESTERN RESOURCES, INC.
TO
HARRIS TRUST AND SAVINGS BANK
as Trustee
------------------
_________ SUPPLEMENTAL INDENTURE
Dated as of [ ], 2000
================================================================================
<PAGE>
TABLE OF CONTENTS*
-----------------
Page
Parties..................................................................... 1
Recitals.................................................................... 1
Granting Clause............................................................. 3
Habendum.................................................................... 5
Exceptions and Reservations................................................. 5
Grant in Trust.............................................................. 6
General Covenant............................................................ 6
ARTICLE I.
DESCRIPTION OF BONDS OF THE _______ SERIES
Section 1. General Description of Bonds of the ________ Series........... 6
Section 2. Denominations of Bonds of the ________ Series and
privilege of exchange........................................ 7
Section 3. Form of Bonds of the ________ Series........................... 7
Section 4. Execution and Form of Temporary Bonds of
the ________ Series.......................................... 12
ARTICLE II.
ISSUE OF BONDS OF THE ________ SERIES
Section 1. Limitations as to principal amount............................. 12
Section 2. Execution and Delivery of Bonds of the _________ Series........ 13
- ----------
* Note: The Table of Contents is not part of this Supplemental Indenture and
should not be considered as such. It is included only for purposes of
convenience.
-i-
<PAGE>
Page
ARTICLE III.
REDEMPTION
Section 1. Bonds of the ________ Series are not redeemable................. 13
ARTICLE IV.
ADDITIONAL COVENANTS
Section 1. Title to mortgaged property..................................... 13
Section 2. To retire certain portions of Bonds upon release of all
or substantially all of the gas properties ................... 13
Section 3. To retire certain portions of Bonds upon release of all or
substantially all of the electric properties ................. 14
ARTICLE V.
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT OF NET EARNINGS
TEST. USE OF FACSIMILE SIGNATURES. AMENDMENT OF ARTICLE
XV. RESERVATION OF RIGHT TO AMEND ARTICLE VII
Section 1. So long as Bonds of the ________ Series remain outstanding:
Bonds issuable on basis only of 60% of net bondable
value of property additions not subject to an
unfunded prior lien....................................... 15
Amendment of definition of net bondable value of property
additions not subject to an unfunded prior
lien...................................................... 15
Monies deposited with Trustee under Section 5(a) of
Article III of the Original Indenture may not be
withdrawn in an amount in excess of 60% of net
bondable value of property additions not subject to
an unfunded prior lien, notwithstanding provisions
of Section 3(a) of Article VIII of the Original
Indenture................................................. 15
Amendment of definition of net bondable value of property
additions subject to an unfunded prior lien .............. 15
Amendment of covenants in Sections 14 and 16 of Article IV
and Section 1 of Article XII of the Original Indenture
with respect to acquisition of property subject to an
unfunded prior lien ...................................... 15
-ii-
<PAGE>
Page
Definitions: minimum charge for depreciation; net earnings
of property available for interest, depreciation and
property retirement; net earnings of another corporation
available for interest, depreciation and property
retirement ............................................... 16
Amendment of Articles III, IV and XII of the Original
Indenture................................................. 17
Section 2. Facsimile Signatures.......................................... 18
Section 3. Reservation of Right to Amend Article VII..................... 18
Section 4. Reservation of Right to Delete certain requirements and
conditions.................................................. 21
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 1. Acceptance of Trust........................................... 21
Section 2. Responsibility and Duty of Trustee............................ 21
Section 3. Parties to include successors and assigns..................... 21
Section 4. Benefits restricted to parties and to holders of Bonds and
coupons..................................................... 22
Section 5. Execution in counterparts..................................... 22
Section 6. Titles of Articles not part of the _________ Supplemental
Indenture................................................... 22
TESTIMONIUM............................................................... S-1
SIGNATURES AND SEALS...................................................... S-1
ACKNOWLEDGMENTS........................................................... S-2
APPENDIX A
DESCRIPTION OF PROPERTIES
-iii-
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of the [ ] day of [ ], Two Thousand, made
by and between Western Resources, Inc., formerly The Kansas Power and Light
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 whose mailing address is 111 West Monroe Street, P.O. Box
755, Chicago, Illinois 60690] (hereinafter called the "Trustee"), as Trustee
under the Mortgage and Deed of Trust dated July 1, 1939, hereinafter mentioned,
party of the second part;
WHEREAS, the Company has heretofore executed and delivered to the Trustee
its Mortgage and Deed of Trust, dated July 1, 1939 (hereinafter referred to as
the "Original Indenture"), to provide for and to secure an issue of First
Mortgage Bonds of the Company, issuable in series, and to declare the terms and
conditions upon which the Bonds (as defined in the Original Indenture) are to be
issued thereunder; and
WHEREAS, the Company has heretofore executed and delivered to the Trustee
Thirty-Three Supplemental Indentures supplemental to said Original Indenture, of
which Thirty-One provided for the issuance thereunder of series of the Company's
First Mortgage Bonds, and there is set forth below information with respect to
such Supplemental Indentures as have provided for the issuance of Bonds, and the
principal amount of Bonds which remain outstanding as of [ ], 2000.
<TABLE>
<CAPTION>
Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
- ------------------ ---- ------------ ------ -----------
<S> <C> <C> <C> <C>
Supplemental Indenture July 1, 1939 3-1/2% Series $26,500,000 None
Due 1969
Second Supplemental April 1, 1949 2-7/8% Series 10,000,000 None
Indenture Due 1979
Fourth Supplemental October 1, 1949 2-3/4% Series 6,500,000 None
Indenture Due 1979
Fifth Supplemental December 1, 1949 2-3/4% Series 32,500,000 None
Indenture Due 1984
Seventh Supplemental December 1, 1951 3-1/4% Series 5,250,000 None
Indenture Due 1981
Eighth Supplemental May 1, 1952 3-1/4% Series 4,750,000 None
Indenture Due 1982
Ninth Supplemental October 1, 1954 3-1/8% Series 8,000,000 None
Indenture Due 1984
Tenth Supplemental September 1, 1961 4-3/4% Series 13,000,000 None
Indenture Due 1991
Eleventh Supplemental April 1, 1969 7-5/8% Series 19,000,000 None
Indenture Due 1999
Twelfth Supplemental September 1, 1970 8-3/4% Series 20,000,000 None
Indenture Due 2000
Thirteenth Supplemental February 1, 1975 8-5/8% Series 35,000,000 None
Indenture Due 2005
<PAGE>
-2-
Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
- ------------------ ---- ------------ ------ -----------
Fourteenth Supplemental May 1, 1976 8-5/8% Series 45,000,000 None
Indenture Due 2006
Fifteenth Supplemental April 1, 1977 5.90% Pollution 32,000,000 None
Indenture Control Series
Due 2007
Sixteenth Supplemental June 1, 1977 8-1/8% Series 30,000,000 None
Indenture Due 2007
Seventeenth Supplemental February 1, 1978 8-3/4% Series 35,000,000 None
Indenture Due 2008
Eighteenth Supplemental January 1, 1979 6-3/4% Pollution 45,000,000 None
Indenture Control Series
Due 2009
Nineteenth Supplemental May 1, 1980 8-1/4% Pollution 45,000,000 None
Indenture Control Series
Due 1983
Twentieth Supplemental November 1, 1981 16.95% Series 25,000,000 None
Indenture Due 1988
Twenty-First Supplemental April 1, 1982 15% Series 60,000,000 None
Indenture Due 1992
Twenty-Second Supplemental February 1, 1983 9-5/8% Pollution 58,500,000 None
Indenture Control Series
Due 2013
Twenty-Third Supplemental July 1, 1986 8-1/4% Series 60,000,000 None
Indenture Due 1996
Twenty-Fourth Supplemental March 1, 1987 8-5/8% Series 50,000,000 None
Indenture Due 2017
Twenty-Fifth Supplemental October 15, 1988 9.35% Series 75,000,000 None
Indenture Due 1998
Twenty-Sixth Supplemental February 15, 1990 8-7/8% Series 75,000,000 None
Indenture Due 2000
Twenty-Seventh Supplemental March 12, 1992 7.46% Demand 370,000,000 None
Indenture Series
Twenty-Eighth Supplemental July 1, 1992 7-1/4% Series 125,000,000 None
Indenture Due 1999
8-1/2% Series 125,000,000 125,000,000
Due 2022
Twenty-Ninth Supplemental August 20, 1992 7-1/4% Series 100,000,000 100,000,000
Indenture Due 2002
Thirtieth Supplemental February 1, 1993 6% Pollution 58,500,000 58,410,000
Indenture Control Revenue
Refunding Series
Due 2033
Thirty-First Supplemental April 15, 1993 7.65% Series 100,000,000 100,000,000
Indenture Due 2023
Thirty-Second Supplemental April 15, 1994 7-1/2% Series 75,500,000 75,500,000
Indenture Due 2032
<PAGE>
-3-
Series of First Principal Principal
Supplemental Indenture Mortgage Bonds Amount Amount
Hereinafter Called Date Provided For Issued Outstanding
- ------------------ ---- ------------ ------ -----------
Thirty-Third Supplemental August 11, 1997 6-7/8% Convertible 370,000,000 None
Indenture Series Due 2004
7-1/8% Convertible 150,000,000 None
Series Due 2009
</TABLE>
; and
WHEREAS, the Company is entitled at this time to have authenticated and
delivered additional bonds on the basis of net bondable value of property
additions not subject to an unfunded prior lien and in substitution for
refundable Bonds, upon compliance with the provisions of Article III of the
Original Indenture, as amended; and
WHEREAS, the Company desires by this Supplemental Indenture to supplement
the Original Indenture and to provide for the creation of a new series of bonds
under the Original Indenture to be designated "First Mortgage Bonds, [ ]% Series
Due [ ], (hereinafter called "Bonds of the Series"); and the Original Indenture
provides that certain terms and provisions, as determined by the Board of
Directors of the Company, of the Bonds of any particular series may be expressed
in and provided by the execution of an appropriate supplemental indenture; and
WHEREAS, the Company in the exercise of the powers and authority conferred
upon and reserved to it under the provisions of the Original Indenture and
indentures supplemental thereto, and pursuant to appropriate resolutions of its
Board of Directors, has duly resolved and determined to make, execute and
deliver to the Trustee a supplemental indenture in the form hereof for the
purposes herein provided; and
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding and legal instrument have been done,
performed and fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That, in consideration of the
premises and of the mutual covenants herein contained and of the sum of One
Dollar duly paid by the Trustee to the Company at or before the time of the
execution of these presents, and of other valuable considerations, the receipt
whereof is hereby acknowledged, and in order further to secure the payment of
the principal of and interest and premium, if any, on all Bonds at any time
issued and outstanding under the Original Indenture as amended by all indentures
supplemental thereto (hereinafter sometimes collectively called the "Indenture")
according to their tenor, purport and effect, and to declare certain terms and
conditions upon and subject to which Bonds are to be issued and secured, the
Company has executed and delivered this Supplemental Indenture, and by these
presents grants, bargains, sells, warrants, aliens, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and ratifies and confirms unto Harris
Trust and Savings Bank, as Trustee, and to its successors in trust under the
Indenture forever, all and singular the following described properties (in
addition to all
<PAGE>
-4-
other properties heretofore specifically subjected to the lien of the Indenture
and not heretofore released from the lien thereof), that is to say:
FIRST.
All and singular the rents, real estate, chattels real, easements,
servitudes, and leaseholds of the Company, or which, subject to the provisions
of Article XII of the Original Indenture, the Company may hereafter acquire,
including, among other things, the property described in Appendix A hereto under
the caption "First", which description is hereby incorporated herein by
reference and made a part hereof as if fully set forth herein, together with all
improvements of any type located thereon.
Also all power houses, plants, buildings and other structures, dams, dam
sites, substations, heating plants, gas works, holders and tanks, compressor
stations, gasoline extraction plants, together with all and singular the
electric heating, gas and mechanical appliances appurtenant thereto of every
nature whatsoever, now owned by the Company or which it may hereafter acquire,
including all and singular the machinery, engines, boilers, furnaces,
generators, dynamos, turbines and motors, and all and every character of
mechanical appliance for generating or producing electricity, steam, water, gas
and other agencies for light, heat, cold or power or any other purpose
whatsoever.
SECOND.
Also all transmission and distribution systems used for the transmission
and distribution of electricity, steam, water, gas and other agencies for light,
heat, cold or power, or any other purpose whatever, whether underground or
overhead or on the surface or otherwise of the Company, or which, subject to the
provisions of Article XII of the Original Indenture, the Company may hereafter
acquire, including all poles, posts, wires, cables, conduits, mains, pipes,
tubes, drains, furnaces, switchboards, transformers, insulators, meters, lamps,
fuses, junction boxes, water pumping stations, regulator stations, town border
metering stations and other electric, steam, water and gas fixtures and
apparatus.
THIRD.
Also all franchises and all permits, ordinances, easements, privileges and
immunities and licenses, all rights to construct, maintain and operate overhead,
surface and underground systems for the distribution and transmission of
electricity, gas, water or steam for the supply to itself or others of light,
heat, cold or power or any other purpose whatsoever, all rights-of-way, all
waters, water rights and flowage rights and all grants and consents, now owned
by the Company or, subject to the provisions of Article XII of the Original
Indenture, which it may hereafter acquire.
Also all inventions, patent rights and licenses of every kind now owned by
the Company or, subject to the provisions of Article XII of the Original
Indenture, which it may hereafter acquire.
<PAGE>
-5-
FOURTH.
Also, subject to the provisions of Article XII of the Original Indenture,
all other property, real, personal and mixed (except as therein or herein
expressly excepted) of every nature and kind and wheresoever situated now or
hereafter possessed by or belonging to the Company, or to which it is now, or
may at any time hereafter be, in any manner entitled at law or in equity.
FIFTH.
Also any and all property of any kind or description which may from time to
time after the date of the Original Indenture by delivery or by writing of any
kind be conveyed, mortgaged, pledged, assigned or transferred to the Trustee by
the Company or by any person, copartnership or corporation, with the consent of
the Company or otherwise, and accepted by the Trustee, to be held as part of the
mortgaged property; and the Trustee is hereby authorized to accept and receive
any such property and any such conveyance, mortgage, pledge, assignment and
transfer, as and for additional security hereunder, and to hold and apply any
and all such property subject to and in accordance with the terms and provisions
upon which such conveyance, mortgage, pledge, assignment or transfer shall be
made.
SIXTH.
Together with all and singular, the tenements, hereditaments and
appurtenances belonging or in any wise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions, remainder and remainders,
tolls, rents, revenues, issues, income, products and profits thereof, and all
the estate, right, title, interest and claim whatsoever, at law and in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
property and franchises and every part and parcel thereof.
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, all properties of the character
excepted from the lien of the Original Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged, pledged and conveyed by the Company as aforesaid, or intended so to
be, unto the Trustee and its successors and assigns forever;
SUBJECT, HOWEVER, to the exceptions and reservations hereinabove referred
to, to existing leases other than leases which by their terms are subordinate to
the lien of the Indenture, to existing liens upon rights-of-way for transmission
or distribution line purposes, as defined in Article I of the Original
Indenture; and any extensions thereof, and subject to existing easements for
streets, alleys, highways, rights-of-way and railroad purposes over, upon and
across certain of the property herein before described and subject also to all
the terms, conditions, agreements, covenants, exceptions and reservations
expressed or provided in the deeds or other instruments respectively under and
by virtue of which the Company acquired the properties hereinabove described and
to undetermined liens and charges, if any, incidental to construction or other
existing permitted liens as defined in Article I of the Original Indenture;
<PAGE>
-6-
IN TRUST, NEVERTHELESS, upon the terms and trusts in the Original
Indenture, and the indentures supplemental thereto, including this Supplemental
Indenture, set forth, for the equal and proportionate benefit and security of
all present and future holders of the Bonds and coupons issued and to be issued
thereunder, or any of them, without preference of any of said Bonds and coupons
of any particular series over the Bonds and coupons of any other series by
reason of priority in the time of issue, sale or negotiation thereof, or by
reason of the purpose of issue or otherwise howsoever, except as otherwise
provided in Section 2 of Article IV of the Original Indenture.
AND IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto for the benefit of those who shall hold the Bonds and coupons, or
any of them, to the be issued under the Indenture as follows:
ARTICLE I
Description of Bonds of the
Series
SECTION 1. The Series of Bonds to be executed, authenticated and delivered
under and secured by the Original Indenture shall be Bonds of the [ ]% Series.
The Bonds of the Series shall be designated as "First Mortgage Bonds, [ ]%
Series Due 20[ ]." Each of the Bonds of the Series shall be executed,
authenticated and delivered in accordance with provisions of, and shall in all
respects be subject to, all of the terms, conditions and covenants of the
Original Indenture, as amended, and subject to all the terms, conditions and
covenants of this Supplemental Indenture.
Bonds of the Series shall mature [ ], and shall bear interest at the rate
of [ ] ([ ]%) per annum payable semiannually on the 1st days of [ ] and [ ] in
each year, commencing [ ]. Every Bond of the Series shall be dated the date of
authentication except that, notwithstanding the provisions of Section 6 of
Article II of the Original Indenture, if any Bond of the Series shall be
authenticated at any time subsequent to the record date (as hereinafter in this
Section defined) for any interest payment date but prior to the day following
such interest payment date, it shall be dated as of the day following such
interest payment date, provided, however, that if at the time of authentication
of any Bond of the Series interest shall be in default on any such Bond of the
Series, such Bond shall be dated as of the day following the interest payment
date to which interest has previously been paid in full or made available for
payment in full on outstanding Bonds of the Series or, if no interest has been
paid or made available for payment, as of the date of initial authentication and
delivery of such Bond. Every Bond of the Series shall bear interest from the [ ]
or [ ] next preceding the date thereof, unless such Bond shall be dated prior to
[ ], in which case it shall bear interest from [ ].
The person in whose name any Bond of the Series is registered at the close
of business on any record date with regard to any interest payment shall be
entitled to receive the interest payable thereon on such interest payment date
notwithstanding the cancellation of such Bond
<PAGE>
-7-
upon the transfer or exchange subsequent to such record date and prior to the
day following such interest payment date, unless 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 is
registered on the date of payment of such defaulted interest. The term "record
date" as used in this Section with regard to any semiannual interest payment
date shall mean the close of business on the tenth day next preceding such
interest payment date, or, if such tenth day is not a business day, the business
day next preceding such tenth day. The Bonds of the Series shall be payable as
to principal, premium, if any, and interest, in any coin or currency of the
United States of America which at the time of payment is legal tender for public
and private debts, at the agency of the Company in the City of Chicago,
Illinois, or at the option of the holder thereof at the agency of the Company in
the Borough of Manhattan, The City of New York, provided that at the option of
the Company interest may be paid by check mailed to the holder at such holder's
registered address.
SECTION 2. The Bonds of the Series shall be registered bonds without
coupons of the denominations of $1,000 and of any multiples of $1,000, numbered
consecutively from R1 upwards. Bonds of the Series may be interchanged for each
other in authorized denominations and in the same aggregate principal amounts,
without charge, except for any tax or governmental charge imposed in connection
with such interchange.
SECTION 3. The Bonds of the Series, and the Trustee's Certificate with
respect thereto, shall be substantially in the following forms, respectively:
<PAGE>
-8-
[FORM OF FACE OF BOND OF THE SERIES]
--------------
WESTERN RESOURCES, INC.
(Incorporated under the laws of the State of Kansas)
FIRST MORTGAGE BOND, [ ]% SERIES DUE 20[ ]
--------------
DUE [ ]
No. ___________ $____________
WESTERN RESOURCES, INC., a corporation organized and existing under the
laws of the State of Kansas (hereinafter called the "Company", which term shall
include any successor corporation as defined in the Indenture hereinafter
referred to), for value received, hereby promises to pay to
_______________________ or registered assigns, on the first day of [ ] the sum
of _____________________ Dollars in any coin or currency of the United States of
America which at the time of payment is legal tender for public and private
debts, and to pay interest thereon in like coin or currency from the first day
of [ ] or [ ] next preceding the date of this Bond at the rate of [ ] ([ ]%) per
annum, payable semiannually, on the first days of [ ] and [ ] in each year,
commencing [ ] (on which date interest from [ ] will be payable), until
maturity, or, if the Company shall default in the payment of the principal
hereof, until the Company's obligation with respect to the payment of such
principal shall be discharged as provided in the Indenture hereinafter
mentioned. The interest payable on any [ ] or [ ] as aforesaid will be paid to
the person in whose name this Bond is registered at the close of business on the
tenth day next preceding such interest payment date, or if such tenth day is not
a business day, the business day next preceding such tenth day, unless 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 this Bond is registered on the date of payment of such defaulted
interest. Principal of and premium, if any, and interest on, this Bond are
payable at the agency of the Company in the City of Chicago, Illinois, or, at
the option of the holder hereof, at the agency of the Company in the Borough of
Manhattan, The City of New York, provided that at the option of the Company
interest may be paid by check mailed to the holder at such holder's registered
address.
This Bond shall not be entitled to any benefit under the Indenture or any
indenture supplemental thereto, or become valid or obligatory for any purpose,
until Harris Trust and Savings Bank, the Trustee under the Indenture, or a
successor trustee thereto under the Indenture, shall have signed the form of
certificate endorsed hereon.
The provisions of this Bond are continued on the reverse hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
<PAGE>
-9-
IN WITNESS WHEREOF, WESTERN RESOURCES, INC. has caused this Bond to be
signed in its name by its Chairman of the Board and Chief Executive Officer or
its President or a Vice President, manually or by facsimile, and its corporate
seal (or a facsimile thereof) to be hereto affixed and attested by its Secretary
or an Assistant Secretary, manually or by facsimile.
Dated:
WESTERN RESOURCES, INC.
By:_______________________________
Attest:
__________________________________
Secretary
<PAGE>
-10-
[FORM OF TRUSTEE'S CERTIFICATE]
This Bond is one of the Bonds, of the series designated herein, described
in the within-mentioned Mortgage and Deed of Trust of July 1, 1939 and
Supplemental Indenture dated [ ].
HARRIS TRUST AND SAVINGS BANK,
Trustee,
By:_________________________________
Authorized Officer
<PAGE>
-11-
[FORM OF REVERSE OF BOND OF THE ________ SERIES]
WESTERN RESOURCES, INC.
First Mortgage Bond, [ ]% ________ Series Due 20[ ]
DUE [ ], 20[ ]
(CONTINUED)
This Bond is one of a duly authorized issue of Bonds of the Company (herein
called the "Bonds"), in unlimited aggregate principal amount, of the series
hereinafter specified, all issued and to be issued under and equally secured by
a Mortgage and Deed of Trust, dated July 1, 1939, executed by the Company to
Harris Trust and Savings Bank (herein called the "Trustee"), as Trustee, as
amended by the indentures supplemental thereto including the indenture
supplemental thereto dated [ ] (herein called the "Supplemental Indenture"),
between the Company and the Trustee (said Mortgage and Deed of Trust, as so
amended, being herein called the "Indenture") to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the properties mortgaged and pledged, the nature and extent of the security, the
rights of the bearers or registered owners of the Bonds and of the Trustee in
respect thereto, and the terms and conditions upon which the Bonds are, and are
to be, secured. The Bonds may be issued in series, for various principal sums,
may mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided. This Bond is one of a series
designated as the "First Mortgage Bonds, [ ]% Series Due 20[ ]" (herein called
"Bonds of the Series") of the Company, issued under and secured by the Indenture
executed by the Company to the Trustee.
To the extent permitted by, and as provided in the Indenture, modifications
or alterations of the Indenture or of any indenture supplemental thereto, and of
the rights and obligations of the Company and of the holders of the Bonds and
coupons, may be made with the consent of the Company by an affirmative vote of
not less than 60% in principal amount of the Bonds entitled to vote then
outstanding, at a meeting of Bondholders called and held as provided in the
Indenture, and by an affirmative vote of not less than 60% in principal amount
of the Bonds of any series entitled to vote then outstanding and affected by
such modification or alteration, in case one or more but less than all of the
series of Bonds then outstanding under the Indenture are so affected. No
modification or alteration shall be made which will affect the terms of payment
of the principal of or premium, if any, or interest on, this Bond, which are
unconditional. The Company has reserved the right to make certain amendments to
the Indenture, without any consent or other action by holders of the Bonds of
this series (i) to the extent necessary from time to time to qualify the
Indenture under the Trust Indenture Act of 1939 (ii) to delete the requirement
that the Company meet a net earnings test as a condition to authenticating
additional Bonds or merging into another company and (iii) to make certain other
amendments which make the provisions for the release of mortgaged property less
restrictive, all as more fully provided in the Indenture and in the Supplemental
Indenture. In addition, once all Bonds issued prior to January 1, 1997 are no
longer outstanding, the Company will be permitted to
<PAGE>
-12-
issue additional Bonds in an amount equal to 70% of the value of net bondable
property additions not subject to an unfunded prior lien, as provided in the
Original Indenture.
*[The Bonds of the __________ Series are not redeemable prior to maturity.
The Bonds of the ________ Series are subject to redemption at any time or
from time to time prior to maturity at the option of the Company, subject to
certain restrictions with respect to redemptions prior to ___________ as set
forth in the aforesaid Supplemental Indenture, and upon application of certain
moneys included in the trust estate, either as a whole or in part by lot, upon
payment of the Redemption Prices applicable to the respective periods set forth
below, together, in each case, with accrued interest to the redemption date, all
subject to the conditions of, and as more fully set forth in, the Indenture.
<TABLE>
<CAPTION>
Redemption Price Redemption Price
Expressed as a If Redeemed Expressed as a
If Redeemed Percentage of the During the Percentage of the
During the Twelve-Month Period Principal Amount Twelve-Month Period Principal Amount
Beginning of the Bonds Beginning of the Bonds
- --------- ------------ --------- ------------
<S> <C> <C> <C>
% %
</TABLE>
Such redemption in every case shall be effected upon notice given by first
class mail, postage prepaid, at least thirty days and not more than sixty days
prior to the redemption date, to the registered owners of such Bonds, at their
addresses as the same shall appear on the transfer register of the Company, all
subject to the conditions of, and as more fully set forth in, the Indenture.]
In case an event of default, as defined in the Indenture, shall occur, the
principal of all of the Bonds at any such time outstanding under the Indenture
may be declared or may become due and payable, upon the conditions and in the
manner and with the effect provided in the Indenture. The Indenture provides
that such declaration may in certain events be waived by the holders of a
majority in principal amount of the Bonds outstanding.
This Bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, on the books of the Company to be kept for that
purpose at the agency of the Company in the City of Chicago, Illinois, and at
the agency of the Company in the Borough of Man-
- ----------
* The following description will be amended as appropriate to reflect whether
or not the series of Bonds is subject to redemption.
If the Bonds are subject to a sinking fund or any similar fund, appropriate
language will be added to that effect.
<PAGE>
-13-
hattan, The City of New York, upon surrender and cancellation of this Bond and
on presentation of a duly executed written instrument of transfer, and thereupon
a new registered Bond or Bonds of the same series, of the same aggregate
principal amount and in authorized denominations will be issued to the
transferee or transferees in exchange herefor; and this Bond, with or without
others of like form and series, may in like manner be exchanged for one or more
new registered Bonds of the same series of other authorized denominations but of
the same aggregate principal amount; all upon payment of the charges and subject
to the terms and conditions set forth in the Indenture.
No recourse shall be had for the payment of the principal of or premium, if
any, or interest on this Bond, or for any claim based hereon or on the Indenture
or any indenture supplemental thereto, against any incorporator, or against any
stockholder, director or officer, past, present or future, of the Company, or of
any predecessor or successor corporation, as such, either directly or through
the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
stockholders, directors or officers being released by every owner hereof by the
acceptance of this Bond and as part of the consideration for the issue hereof,
and being likewise released by the terms of the Indenture.
SECTION 4. Until Bonds of the Series in definitive form are ready for
delivery, the Company may execute, and upon its request in writing the Trustee
shall authenticate and deliver, in lieu thereof, Bonds of the Series in
temporary form, as provided in Section 9 of Article II of the Original
Indenture.
ARTICLE II
Issue of Bonds of the _________ Series
SECTION 1. The total principal amount of Bonds of the Series which may be
authenticated and delivered hereunder is not limited except as the Original
Indenture and this Supplemental Indenture limit the principal amount of Bonds
which may be issued thereunder.
SECTION 2. Bonds of the ______ Series for the aggregate principal amount of
[ ] Million Dollars ($[ ]) may forthwith be executed by the Company and
delivered to the Trustee and shall be authenticated by the Trustee and delivered
(either before or after the filing or recording hereof) to or upon the order of
the Company, upon receipt by the Trustee of the resolutions, certificates,
instruments and opinions required by Article III and Article XVIII of the
Original Indenture, as amended.
<PAGE>
-14-
ARTICLE III
Redemption.*
SECTION 1. [Bonds of the _______ Series are not redeemable prior to
maturity.]
Bonds of the _________ Series shall, subject to the provisions of Article V
of the Original Indenture, be redeemable at any time or from time to time prior
to maturity, at the option of the Board of Directors of the Company and pursuant
to Section 8 of Article VIII of the Original Indenture either as a whole or in
part, upon payment of the applicable percentage of the principal amount thereof
set forth under the heading "Redemption Price" in the tabulation in the form of
Bonds of the __________ Series set forth in Section 3 of Article I hereof,
together, in each case, with accrued interest to the redemption date.
Notwithstanding the foregoing provisions of this Section, Bonds of the
________ Series shall not be redeemable as set forth in the preceding paragraph
prior to ________ if the moneys for such redemption are obtained by the Company
directly or indirectly from or in anticipation of the borrowing by or for the
account of the Company at an effective interest cost (calculated after
adjustment, in accordance with generally accepted financial practice, for any
premium received or discount granted in connection with such borrowing, but
without any adjustment for commissions, underwriting discounts and expenses in
connection with such borrowing) of _____ or less per annum or are obtained from
an affiliate of the Company.
SECTION 2. Subject to the provisions of Article V of the Original
Indenture, the Company shall cause notice of redemption to be given by first
class mail, postage prepaid, at least thirty days and not more than sixty days
prior to the date of redemption, to the registered owners of such Bonds at their
addresses as the same shall appear on the transfer register of the Company.
SECTION 3. Unless the Bonds of the _____ Series have been declared due and
payable prior to their maturity by reason of an event of default, commencing [ ]
the Representative (as defined below) of a deceased holder of an interest in the
Bonds of the _____ Series (a "Beneficial Owner") has the right to request
redemption of all or part of his or her interest Bonds of the _____ Series,
expressed in integral multiples of $1,000, for payment prior to maturity, and
the Company will redeem the same subject to the limitations that the Company
will not be obligated to redeem during the period beginning [ ] ending [ ], and
during any twelve month period ending [ ]
- ----------
* The following description will be modified or deleted as appropriate to
reflect whether or not the series of Bonds is subject to redemption under
all or some of the provision set forth.
If the Bonds are subject to a sinking fund or any similar fund, appropriate
language will be added to that effect.
<PAGE>
-15-
thereafter, (i) on behalf of the deceased Beneficial Owner any interest in the
Bonds of the _____ Series which exceeds an aggregate principal amount of $ and
(ii) interests in the Bonds of the _____ Series in the aggregate principal
amount exceeding percent ( %) of the aggregate principal amount of Bonds of the
_____ Series originally issued, or $ . In the case of interests in the Bonds of
the _____ Series owned by a deceased Beneficial Owner, a request for redemption
may be presented to the Trustee at any time and in any principal amount. If the
Company, although not obligated to do so, chooses to redeem interests of a
deceased Beneficial Owner in the Bonds of the _____ Series in any such period in
excess of the $ limitation, such redemption, to the extent that it exceeds the $
limitation for any Beneficial Owner, shall not be included in the computation of
the percent ( %) limitation for such period or any succeeding period.
Subject to the $ and percent ( %) limitations, the Company will upon the
death of any Beneficial Owner redeem the interest of the Beneficial Owner in the
Bonds of the _____ Series within 60 days following receipt by the Trustee of a
validly completed Redemption Request, as hereinafter defined, including all
supporting documentation, from such Beneficial Owner's personal representative,
or surviving joint tenant(s), tenant(s) by the entirety or tenant(s) in common,
or other persons entitled to effect such a Redemption Request (each, a
"Representative"). If Redemption Requests exceed either the $ or % per payment
period limitations then such excess Redemption Request (subject in the case of
the $ limitation to the provisions of the last sentence of the preceding
paragraph) will be applied to successive periods in the order of receipt for
prepayment, regardless of the number of periods required to redeem such interest
unless sooner withdrawn as described below.
A request for redemption of an interest in the Bonds of the _____ Series
may be made by delivering a request to the depositary, if any, in whose names
the certificate or certificates representing the Bonds of the _____ Series are
registered (the "Depositary") in the case of a participant in the system of such
Depositary, including securities brokers and dealers, banks and trust companies
that clear through or maintain a custodial relationship with such a participant,
either directly or indirectly (a "Participant") which is the Beneficial Owner of
such interest, or to the Participant through whom the Beneficial Owner owns such
interest, in form satisfactory to the Participant, together with evidence of
death of the Beneficial Owner and the authority of the Representative
satisfactory to the Participant and the Trustee. A Representative of a deceased
Beneficial Owner may make the request for redemption and shall submit such other
evidence of the right to such redemption as the Participant or Trustee shall
require. The request shall specify the principal amount of the Bonds of the
_____ Series to be redeemed. A request for redemption in form satisfactory to
the Participant and accompanied by the documents relevant to the request as
above provided, together with a certification by the Participant that it holds
the interest on behalf of the deceased Beneficial Owner with respect to whom the
request for redemption is being made (the "Redemption Request") shall be
provided to the Depositary by a Participant and the Depositary will forward the
request to the Trustee. Redemption Requests, including all supporting
documentation, shall be in the form satisfactory to the Trustee and no request
for redemption shall be considered validly made until the Redemption Request and
all supporting documentation, in form satisfactory to the Trustee, shall have
been received by the Trustee.
<PAGE>
-16-
The price to be paid by the Company for an interest in the Bonds of the
_____ Series to be redeemed pursuant to a request from a deceased Beneficial
Owner's Representative is one hundred percent (100%) of the principal amount
thereof plus accrued but unpaid interest to the date of redemption. Subject to
arrangements with the Depositary, payment for interests in the Bonds of the
_____ Series which are to be redeemed shall be made to the Depositary within 60
days following receipt by the Trustee of the Redemption Request, including all
supporting documentation, and the Bonds of the _____ Series to be redeemed in
the aggregate principal amount specified in the Redemption Requests submitted to
the Trustee by the Depositary which are to be fulfilled in connection with such
payment. An acquisition of Bonds of the _____ Series by the Company or its
subsidiaries other than by redemption at the option of any Representative of a
deceased Beneficial Owner shall not be included in the computation of either the
$ or percent ( %) limitation for any period.
Interests in the Bonds of the _____ Series held in tenancy by the entirety,
joint tenancy or by tenants in common will be deemed to be held by a single
Beneficial Owner and the death of a tenant in common, tenant by the entirety or
joint tenant will be deemed to be the death of the Beneficial Owner. The death
of a person who, during such person's lifetime, was entitled to substantially
all of the rights of a Beneficial Owner will be deemed the death of the
Beneficial Owner, regardless of the recordation of such interest on the records
of the Participant, if such rights can be established to the satisfaction of the
Participant and the Trustee.
Any Redemption Request may be withdrawn upon delivery of a written request
for such withdrawal given to the Trustee by the Depositary prior to payment for
redemption of the interest in the Bonds of the _____ Series.
ARTICLE IV
Additional Covenants
The Company hereby covenants, warrants and agrees:
SECTION 1. That the Company is lawfully seized and possessed of all of the
mortgaged property described in the granting clauses of this Supplemental
Indenture; that it has good, right and lawful authority to mortgage the same as
provided in this Supplemental Indenture; and that such mortgaged property is, at
the actual date of the initial issue of the Bonds of the Series, free and clear
of any deed of trust, mortgage, lien, charge or encumbrance thereon or affecting
the title thereto prior to the Indenture, except as set forth in the granting
clauses of the Original Indenture, the Twenty-Sixth Supplemental Indenture, the
Twenty-Eighth Supplemental Indenture, the Twenty-Ninth Supplemental Indenture,
the Thirtieth Supplemental Indenture, the Thirty-First Supplemental Indenture,
the Thirty-Second Supplemental Indenture, the Thirty-Third Supplemental
Indenture or this Supplemental Indenture.
SECTION 2. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event that all or substantially all of
the gas properties (either with or without including the gas property in the
City of Atchison, Kansas) shall have been released as an
<PAGE>
-17-
entirety from the lien of the Original Indenture, the Company will, at any time
or from time to time within six months after the date of such release, retire
Bonds outstanding under the Original Indenture in an aggregate principal amount
equal to the lesser of
(a) the fair value of the gas properties so released pursuant to
Section 3 of Article VII of the Original Indenture, as stated in the
engineer's certificate required by Section 3(b) of said Article VII, and
the proceeds of the gas properties so released pursuant to Section 5 of
said Article VII, less the amount of moneys, deposited with the Trustee
pursuant to Sections 3(d), 4(d) and 5 of said Article VII on such release,
withdrawn or reduced pursuant to Section 1 of Article VIII of the Original
Indenture simultaneously with or within three months after such release; or
(b) the greater of
(i) Nine Million Dollars ($9,000,000) plus One Hundred
Seventy-Five Thousand Dollars ($175,000) for each full year
(disregarding any period less than a full year) beginning with July 1,
1949, and ending on the date of such release, less One Million Seven
Hundred Thousand Dollars ($1,700,000), or
(ii) One-half of the fair value of the gas properties so
released, as stated in the engineer's certificate required by Section
3(b) of Article VII of the Original Indenture, and one-half of the
proceeds of the gas properties so released pursuant to Section 5 of
said Article VII.
Such retirement of Bonds shall be effected in either one or both of the
following methods:
(a) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(b) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Original Indenture, out of any moneys
deposited with the Trustee pursuant to Sections 3(d), 4(d) and 5 of Article
VII of the Original Indenture upon such release.
SECTION 3. So long as any Bonds of any series originally issued prior to
January 1, 1997 are outstanding, in the event all or substantially all of the
electric properties shall have been released as an entirety from the lien of the
Original Indenture, the Company will, at any time or from time to time within
six months after the date of such release, retire Bonds outstanding under the
Original Indenture in an aggregate principal amount equal to the fair value of
the electric properties so released pursuant to Section 3 of Article VII of the
Original Indenture, as stated in the engineer's certificate required by Section
3(b) of said Article VII, and the proceeds of the electric properties so
released pursuant to Section 5 of said Article VII. Such retirement of Bonds
shall be effected in either one or both of the following methods:
<PAGE>
-18-
(a) By the withdrawal pursuant to Section 2 of Article VIII of the
Original Indenture of any moneys deposited with the Trustee pursuant to
Sections 3(d), 4(d) and 5 of Article VII of the Original Indenture upon
such release; or
(b) By causing the Trustee to purchase or redeem bonds, pursuant to
Section 8 of Article VIII of the Original Indenture, out of any moneys
deposited with the Trustee pursuant to Sections 3(d), 4(d) and 5 of Article
VII of the Original Indenture upon such release.
The Bonds to be so retired pursuant to this Section 3 shall include a
principal amount of Bonds of each Series then outstanding in the same ratio to
the aggregate principal amount of all Bonds so retired as the aggregate
principal amount of all Bonds of each Series outstanding immediately prior to
such release bears to the total principal amount of all Bonds then outstanding.
ARTICLE V
AMENDMENTS TO RATIO OF BONDS ISSUABLE TO PROPERTY ADDITIONS
AND OF CERTAIN OTHER RATIOS. AMENDMENT OF NET EARNINGS
TEST. USE OF FACSIMILE SIGNATURES. AMENDMENT OF ARTICLE
XV. RESERVATION OF RIGHT TO AMEND ARTICLE VII
SECTION 1. So long as any of the Bonds of any series originally issued
prior to January 1, 1997 shall remain outstanding:
(a) Notwithstanding the provisions of Section 4 of Article III of the
Original Indenture, no Bonds shall be authenticated and delivered pursuant
to the provisions of Article III of the Original Indenture and issued upon
the basis of net bondable value of property additions for an aggregate
principal amount in excess of sixty percent (60%) of the net bondable value
of property additions not subject to an unfunded prior lien.
For the purposes of Subsections (e) and (f) of the definition of "net
bondable value of property additions not subject to an unfunded prior
lien", contained in Article I of the Original Indenture, and Subdivisions 8
and 9 of clause (a) of Section 4 of Article III of the Original Indenture,
in all computations made with respect to a period subsequent to April 1,
1949, the deductions therein referred to shall in each case be ten-sixths
(10/6ths) of the respective amounts mentioned, in lieu of ten-sevenths
(10/7ths).
(b) Notwithstanding the provisions of Section 3(a) of Article VIII of
the Original Indenture, no moneys received by the Trustee pursuant to
Section 5(a) of Article III of the Original Indenture shall be paid over by
the Trustee in an amount in excess of sixty percent (60%) of the net
bondable value of property additions not subject to an unfunded prior lien,
and for the purposes of Section 3 of Article VII of the Original Indenture,
the amount of cash required to be deposited by the Company pursuant to
Subsection (d) of said Section 3 of Article VII shall not be reduced in an
amount in excess of sixty percent (60%) of the net bondable value of
property additions not subject to an unfunded prior lien.
<PAGE>
-19-
(c) For the purposes of clauses (c) and (d) of the definition of "net
bondable value of property additions subject to an unfunded prior lien",
contained in Article I of the Original Indenture, and Subsection 7 of
clause (a) of Section 4 of Article III of the Original Indenture, in all
computations made with respect to a period subsequent to April 1, 1949, the
deductions therein referred to shall in each case be ten-sixths (10/6ths)
of the respective amounts mentioned, in lieu of ten-sevenths (10/7ths).
(d) Subsection (a) of Section 14, clauses (1) and (2) of Subsection
(a) of Section 16 of Article IV and clause (1) of Subsection (b) of Section
1 of Article XII of the Original Indenture shall be deemed amended by
substituting the words "sixty percent (60%)" for "seventy percent (70%)"
where they appear in said provisions of the Original Indenture.
(e) The definition of the term "net earnings available for interest,
depreciation and property retirement", as contained in Article I of the
Original Indenture, shall be deemed to mean the net earnings of the Company
ascertained as follows:
1. The total operating revenues of the Company and the net
non-operating revenues of the properties of the Company shall be
ascertained.
2. From the total, determined as provided in Subsection (a),
there shall be deducted all operating expenses, including all
salaries, rentals, insurance, license and franchise fees, expenditures
for repairs and maintenance, taxes (other than income, excess profits
and other taxes measured by or dependent on net taxable income),
depreciation as shown on the books of the Company or an amount equal
to the minimum provision for depreciation as hereinafter defined,
whichever is greater, but excluding all property retirement
appropriations, all interest and sinking fund charges, amortization of
stock and debt discount and expense or premium and further excluding
any charges to income or otherwise for the amortization of plant or
property accounts or of amounts transferred therefrom.
3. The balance remaining after the deduction of the total amount
computed pursuant to Subsection (b) from the total amount computed
pursuant to Subsection (a) shall constitute the "net earnings of the
Company available for interest", provided that not more than fifteen
percent (15%) of the net earnings of the Company available for
interest may consist of the aggregate of (i) net non-operating income,
(ii) net earnings from mortgaged property other than property of the
character of property additions and (iii) net earnings from property
not subject to the lien of this Indenture.
4. No income received or accrued by the Company from securities
and no profits or losses of capital assets shall be included in making
the computations aforesaid.
5. In case the Company shall have acquired any acquired plant or
systems or shall have been consolidated or merged with any other
corporation, within or
<PAGE>
-20-
after the particular period for which the calculation of net earnings
of the Company available for interest, depreciation and property
retirement is made, then, in computing the net earnings of the Company
available for interest, depreciation and property retirement, there
may be included, to the extent they may not have been otherwise
included, the net earnings or net losses of such acquired plant or
system or of such other corporation, as the case may be, for the whole
of such period. The net earnings or net losses of such property
additions, or of such other corporation for the period preceding such
acquisition or such consolidation or merger, shall be ascertained and
computed as provided in the foregoing subsections of this definition
as if such acquired plant or system had been owned by the Company
during the whole of such period, or as if such other corporation had
been consolidated or merged with the Company prior to the first day of
such period.
6. In case the Company shall have obtained the release of any
property pursuant to Section 3 of Article VII of the Original
Indenture, of a fair value in excess of Five Hundred Thousand Dollars
($500,000), as shown by the engineer's certificate required by said
Section 3, or shall have obtained the release of any property pursuant
to Section 5 of Article VII of the Original Indenture, the proceeds of
which shall have exceeded Five Hundred Thousand Dollars ($500,000),
within or after the particular period for which the calculation of net
earnings of the Company available for interest, depreciation and
property retirement is made, then, in computing the net earnings of
the Company available for interest, depreciation and property
retirement, the net earnings or net losses of such property for the
whole of such period shall be excluded to the extent practicable on
the basis of actual earnings and expenses of such property or on the
basis of such estimates of the earnings and expenses of such property
as the signers of an officers' certificate filed with the Trustee
pursuant to Section 3(b) of Article III or Section 16 of Article IV of
the Original Indenture shall deem proper.
The term "minimum charge for depreciation" as used herein shall mean
an amount equal to (a) fifteen percent (15%) of the total operating
revenues of the Company after deducting therefrom an amount equal to the
aggregate cost to the Company of electric energy, gas and water purchased
for resale to others and rentals paid for, or other payments made for the
use of, property owned by others and leased to or operated by the Company,
the maintenance of which and depreciation on which are borne by the owners,
less (b) an amount equal to the expenditures for maintenance and repairs to
the plants and property of the Company and included or reflected in its
operating expense accounts.
The terms "net earnings of property available for interest,
depreciation and property retirement" and "net earnings of another
corporation available for interest, depreciation and property retirement"
as contained in Article I of the Original Indenture, when used with respect
to any property or with respect to another corporation, shall mean the net
earnings of such property or the net earnings of such other corporation, as
the case may be, computed in the manner provided in Subsections (a), (b),
(c) and (d) hereof.
<PAGE>
-21-
(f) Notwithstanding the provisions of clauses (1) and (2) of
subsection (b) of Article III, and Subsection (b) of Section 14 of Article
IV, and Subsection (b) of Section 16 of Article IV and clause (2) of
Subsection (b) of Section 1 of Article XII of the Original Indenture, the
computation of net earnings required therein shall be made as provided in
Subsection (5) of this Section 1, and the net earnings tests required in
said mentioned provisions of Articles III, IV and XII of the Original
Indenture shall be based on two times the annual interest charges described
in such provisions, instead of two and one-half times such charges, but
shall not otherwise affect such provisions or relieve from the requirements
therein pertaining to ten percent (10%) of the principal amount of Bonds
therein described.
SECTION 2. All of the Bonds of the Series and of any series initially
issued after the initial issuance of Bonds of the Series shall, from time to
time, be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, President or one of its Vice Presidents whose signature,
notwithstanding the provisions of Section 12 of Article II of the Original
Indenture, may be by facsimile, and its corporate seal (which may be in
facsimile) shall be thereunto affixed and attested by its Secretary or one of
its Assistant Secretaries whose signature, notwithstanding the provisions of the
aforesaid Section 12, may be by facsimile.
In case any of the officers who have signed or sealed any of the Bonds of
the Series or of any series initially issued after the initial issuance of Bonds
of the Series manually or by facsimile shall cease to be such officers of the
Company before such Bonds so signed and sealed shall have been actually
authenticated by the Trustee or delivered by the Company, such Bonds
nevertheless may be authenticated, issued and delivered with the same force and
effect as though the person or persons who so signed or sealed such Bonds had
not ceased to be such officer or officers of the Company; and also any such
Bonds may be signed or sealed by manual or facsimile signature on behalf of the
Company by such persons as at the actual date of the execution of any of such
Bonds shall be the proper officers of the Company, although at the nominal date
of any such Bond any such person shall not have been such officer of the
Company.
SECTION 3. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of bonds of any
series created after January 1, 1997, to make such amendments to the Original
Indenture, as supplemented, as shall be necessary in order to amend Article VII
thereof by adding thereto a Section 8 and a Section 9 to read as follows:
"SECTION 8. Notwithstanding any other provision of this Indenture,
unless an event of default shall have happened and be continuing, or shall
happen as a result of the making or granting of an application to release
mortgaged property permitted by this Section 8, the Trustee shall release
from the lien of this Indenture any mortgaged property if the fair value to
the Company of all of the property constituting the trust estate (excluding
the mortgaged property to be released but including any mortgaged property
to be acquired by the Company with the proceeds of, or otherwise in
connection with, such release) equals or exceeds an amount equal to 10/7ths
of the aggregate principal amount of outstanding Bonds and prior lien bonds
outstanding at the time of such release, upon receipt by the Trustee of:
<PAGE>
-22-
"(a) an officers' certificate dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (i) that the signer of such engineer's certificate has examined
such officers' certificate in connection with such release, (ii) the fair
value to the Company, in the opinion of the signer of such engineer's
certificate, of (A) all of the property constituting the trust estate, and
(B) the mortgaged property to be released, in each case as of a date not
more than 90 days prior to the date of such release, and (iii) that in the
opinion of such signer, such release will not impair the security under
this Indenture in contravention of the provisions hereof;
"(c) in case any bondable property is being acquired by the Company
with the proceeds of, or otherwise in connection with, such release, an
engineer's certificate, dated the date of such release, as to the fair
value to the Company, as of the date not more than 90 days prior to the
date of such release, of the bondable property being so acquired (and if
within six months prior to the date of acquisition by the Company of the
bondable property being so acquired, such bondable property has been used
or operated by a person or persons other than the Company in a business
similar to that in which it has been or is to be used or operated by the
Company, and the fair value to the Company of such bondable property, as
set forth in such certificate, is not less than $25,000 and not less than
1% of the aggregate principal amount of Bonds at the time outstanding, such
certificate shall be an independent appraiser's certificate);
"(d) an officer's certificate, dated the date of such release, stating
the aggregate principal amount of outstanding Bonds and prior lien bonds
outstanding at the time of such release, and stating that the fair value to
the Company of all of the property constituting the trust estate (excluding
the mortgaged property to be released but including any bondable property
to be acquired by the Company with the proceeds of, or otherwise in
connection with, such release) stated on the independent appraiser's
certificate filed pursuant to Section 8(c) equals or exceeds an amount
equal to 10/7ths of such aggregate principal amount;
"(e) an officers' certificate, dated the date of such release, stating
that, the Company is not, and by the making or granting of the application
will not be, in default in the performance of any of the terms and
covenants of this Indenture;
<PAGE>
-23-
"(f) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent.
"SECTION 9. If the Company is unable to obtain, in accordance with any
other Section of this Article VII, the release from the lien of this
Indenture of any property constituting part of the trust estate, unless an
event of default shall have happened and be continuing, or shall happen as
a result of the making or granting of an application to release mortgaged
property permitted by this Section 9, the Trustee shall release from the
lien of this Indenture any mortgaged property if the fair value to the
Company thereof, as shown by the engineer's certificate filed pursuant to
Section 9(b), is less than 1/2 of 1% of the aggregate principal amount of
outstanding Bonds and prior lien bonds outstanding at the time of such
release, provided that the aggregate fair value to the Company of all
mortgaged property released pursuant to this Section 9, as shown by all
engineer's certificates filed pursuant to Section 9(b) in any period of 12
consecutive calendar months which includes the date of such engineer's
certificate, shall not exceed 1% of the aggregate principal amount of the
outstanding Bonds and prior lien bonds outstanding at the time of such
release, upon receipt by the Trustee of:
"(a) an officers' certificate, dated the date of such release,
requesting such release, describing in reasonable detail the mortgaged
property to be released and stating the reason for such release;
"(b) an engineer's certificate, dated the date of such release,
stating (A) that the signer of such engineer's certificate has
examined such officers' certificate in connection with such release,
(B) the fair value to the Company, in the opinion of the signer of
such engineer's certificate, of such mortgaged property to be released
as of a date not more than 90 days prior to the date of such release,
and (C) that in the opinion of such signer such release will not
impair the security under this Indenture in contravention of the
provisions hereof;
"(c) an officers' certificate, dated the date of such release,
stating the aggregate principal amount of outstanding Bonds and prior
lien bonds outstanding at the time of such release, that 1/2 of 1% of
such aggregate principal amount does not exceed the fair value to the
Company of the mortgaged property for which such release is applied
for as shown by the engineer's certificate referred to in Section
9(b), and that 1% of such aggregate principal amount does not exceed
the aggregate fair value to the Company of all mortgaged property
released from the lien of this Indenture pursuant to this Section 9 as
shown by all engineer's certificates filed pursuant to Section 9(b) in
such period of 12 consecutive calendar months;
<PAGE>
-24-
"(d) an officers' certificate, dated the date of such release,
stating that, the Company is not, and by the making or granting of the
application will not be, in default in the performance of any of the
terms and covenants of this Indenture; and
"(e) an opinion of counsel, dated the date of such release, as to
compliance with conditions precedent."
The Company also reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to amend, modify or delete any other
provision of the Original Indenture, as supplemented, as may be necessary in
order to effectuate the intents and purposes contemplated by the foregoing
Sections 8 and 9.
SECTION 4. The Company reserves the right subject to appropriate corporate
action, but without the consent or other action of holders of Bonds of any
series created after January 1, 1997 to:
(a) delete as a condition to the authentication of additional
Bonds pursuant to Sections 4, 5 or 6 of Article III of the Original
Indenture the requirement to file or deposit with the Trustee the
officers' certificate described in Section 3(b) of Article III of the
Original Indenture;
(b) delete as a condition to the consolidation or merger of the
Company into, or sale by the Company of its property as an entirety or
substantially as an entirety to another corporation the requirement
set forth in Section 1(b)(2) of Article XII of the Original Indenture;
(c) delete as a condition to the release of property pursuant to
Section 3 of Article VII of the Original Indenture, the requirement to
obtain an independent engineer's certificate under the circumstances
set forth in Section 3(c) of Article VII; and
(d) amend, modify or delete any other provision of the Original
Indenture, as supplemented, as may be necessary in order to effectuate
the intents and purposes contemplated by this Section 6.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. The Trustee accepts the trusts herein declared, provided,
created or supplemented and agrees to perform the same upon the terms and
conditions herein and in the Original Indenture, as amended, set forth and upon
the following terms and conditions.
<PAGE>
-25-
SECTION 2. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made by the Company solely. In general each and every term and condition
contained in Article XIII of the Original Indenture, as amended by the Second
Supplemental Indenture, shall apply to and form part of this Supplemental
Indenture with the same force and effect as if the same were herein set forth in
full with such omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this Supplemental
Indenture.
SECTION 3. Whenever in this Supplemental Indenture either of the parties
hereto is named or referred to, such reference shall, subject to the provisions
of Articles XII and XIII of the Original Indenture, be deemed to include the
successors and assigns of such party, and all the covenants and agreements in
this Supplemental Indenture contained by or on behalf of the Company, or by or
on behalf of the Trustee, shall, subject as aforesaid, bind and inure to the
respective benefits of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 4. Nothing in this Supplemental Indenture, expressed or implied, is
intended or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the Bonds and
coupons outstanding under the Indenture, any right, remedy or claim under or by
reason of this Supplemental Indenture or any covenant, condition, stipulation,
promise or agreement hereof, and all the covenants, conditions, stipulations,
promises and agreements in this Supplemental Indenture contained by and on
behalf of the Company shall be for the sole and exclusive benefit of the parties
hereto, and of the holders of the Bonds and of the coupons outstanding under the
Indenture.
SECTION 5. This Supplemental Indenture may be executed in several
counterparts, and all such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
SECTION 6. The Titles of the several Articles of this Supplemental
Indenture shall not be deemed to be any part thereof.
<PAGE>
S-1
IN WITNESS HEREOF, WESTERN RESOURCES, INC., party hereto of the first part,
has caused its corporate name to be hereunto affixed, and this instrument to be
signed and sealed by its Chairman of the Board, President, Chief Executive
Officer or a Vice President, and its corporate seal to be attested by its
Secretary or an Assistant Secretary for and in its behalf, and HARRIS TRUST AND
SAVINGS BANK, party hereto of the second part, has caused its corporate name to
be hereunto affixed, and this instrument to be signed and sealed by its Chairman
of the Board, Chief Executive Officer, President or a Vice President and its
corporate seal to be attested by its Secretary or an Assistant Secretary, all as
of the day and year first above written.
(CORPORATE SEAL) WESTERN RESOURCES, INC.
By:______________________________
ATTEST:
By:______________________________
Executed, sealed and delivered by
WESTERN RESOURCES, INC.
in the presence of:
By:________________________________
By:________________________________
HARRIS TRUST AND SAVINGS BANK,
As Trustee
By:_______________________________
ATTEST:
By:___________________________
Executed, sealed and delivered by
HARRIS TRUST AND SAVINGS BANK
in the presence of:
By:___________________________
By:___________________________
<PAGE>
S-2
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, and who are
personally known to me to be the same persons who executed as such officers the
within instrument of writing, and such persons duly acknowledged the execution
of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
_____________________________
Notary Public
My Commission Expires
<PAGE>
S-3
STATE OF ILLINOIS )
: ss.:
COUNTY OF COOK )
BE IT REMEMBERED, that on this ____ day of ______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and _________, of Harris Trust and Savings Bank, a
corporation duly organized, incorporated and existing under the laws of the
State of Illinois, who are personally known to me to be such officers, and who
are personally known to me to be the same persons who executed as such officers
the within instrument of writing, and such persons duly acknowledged the
execution of the same to be the act and deed of said corporation.
_____________________________
Notary Public
My Commission Expires
<PAGE>
S-4
STATE OF KANSAS )
: ss.:
COUNTY OF SHAWNEE )
BE IT REMEMBERED, that on this ____ day of _______________, before me, the
undersigned, a Notary Public within and for the County and State aforesaid,
personally came __________ and __________, of Western Resources, Inc., a
corporation duly organized, incorporated and existing under the laws of the
State of Kansas, who are personally known to me to be such officers, being by me
respectively duly sworn, did each say that the said __________ is Executive Vice
President and Chief Financial Officer and that the said __________ is Secretary
of said corporation, that the consideration of and for the foregoing instrument
was actual and adequate, that the same was made and given in good faith, for the
uses and purposes therein set forth and without any intent to hinder, delay, or
defraud creditors or purchasers.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year last above written.
_____________________________
Notary Public
My Commission Expires
<PAGE>
APPENDIX A
to
SUPPLEMENTAL INDENTURE
--------------
Dated [ ], 2000
Western Resources, Inc.
to
Harris Trust and Savings Bank
------------
DESCRIPTION OF PROPERTIES
[TO COME]
Exhibit 5
Western Resources, Inc.
818 South Kansas Avenue
Topeka, Kansas 66612
(785) 575-6300
April 28, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Western Resources, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
As Executive Vice President, General Counsel and Corporate Secretary of
Western Resources, Inc. (the "Company"), and in connection with the proposed
issue and sale, from time to time, of $500,000,000 aggregate principal amount of
First Mortgage Bonds (hereinafter called "New Bonds") with respect to which the
Company is filing a Registration Statement on Form S-3 (the "Registration
Statement") with the Securities and Exchange Commission under the Securities Act
of 1933, to which Registration Statement this opinion shall be filed as an
exhibit (capitalized terms used herein without definition have the meanings
given such terms in the Registration Statement), I advise you that, in my
opinion:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Kansas.
2. The New Bonds are to be issued under the Mortgage and Deed of Trust of
the Company dated July 1, 1939, as heretofore supplemented (hereinafter called
the "Mortgage") and as to be further supplemented by one or more supplemental
indentures (hereinafter called the "Supplemental Indenture," a form of which is
filed as an exhibit to the Registration Statement), creating the New Bonds. The
Mortgage has been duly authorized, executed and delivered and is a valid
instrument legally binding upon the Company.
3. Upon (a) authorization of the issue and sale of the New Bonds by
regulatory commissions having jurisdiction, (b) the Registration Statement
becoming effective under the Securities Act of 1933, (c) the authorization of
the Supplemental Indenture and the issuance, sale and delivery of the New Bonds
by the Board of Directors of the Company and the execution of the Supplemental
Indenture by the Company and the Trustee thereunder, acting by their proper
officers, respectively, the delivery thereof and the filing for record of the
Supplemental Indenture, and (d) the execution of the New Bonds by the proper
officers of the Company and the authentication thereof by the Trustee in
accordance with the provision of the Mortgage and full payment therefor, the
Supplemental Indenture will be a valid instrument legally binding upon the
Company and the New Bonds will be duly authorized and issued, will constitute
the legal, valid and binding obligations of the Company and will be entitled to
the lien of and the benefits provided by the Mortgage and the Indentures
supplemental thereto, including the Supplemental Indenture.
<PAGE>
-2-
I hereby consent to the filing of a copy of this opinion as an exhibit to
said Registration Statement. I also consent to the use of my name and the making
of the statements with respect to myself in the Registration Statement and the
Prospectus constituting a part thereof.
Very truly yours,
/s/ Richard D. Terrill
-------------------
Richard D. Terrill
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated March
16, 2000 (except with respect to the Dividend Policy and Corporate Restructuring
discussed in Note 24, as to which the date is March 28, 2000) included in
Western Resources' Form 10-K for the year ended December 31, 1999 and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Kansas City, Missouri
April 27, 2000
Exhibit 25(a)
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)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
WESTERN RESOURCES, INC.
(Obligor)
Kansas 48-0290150
(State of Incorporation) (I.R.S. Employer Identification No.)
818 Kansas Avenue
Topeka, Kansas 66612
(Address of principal executive offices)
Debt Securities
(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. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as 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 Commercial Federal Corporation,
File No. 333-20711, 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)
1
<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 28th day of April, 2000.
HARRIS TRUST AND SAVINGS BANK
By:________________________________
J. Bartolini
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:______________________________
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 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.
[OBJECT OMITTED] 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 December 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.
<TABLE>
<CAPTION>
Bank's Transit Number 71000288
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin........... $1,424,033
Interest bearing $239,832
balances....................................................................
Securities:.................................................................
a. Held-to-maturity securities $0
b. Available-for-sale securities $6,265,013
Federal funds sold and securities purchased under agreements to resell $298,000
Loans and lease financing receivables:
Loans and leases, net of unearned income......................$10,065,468
LESS: Allowance for loan and lease losses.................... $113,702
-----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).......................................... $9,951,766
Assets held in trading accounts............................................. $166,304
Premises and fixed assets (including capitalized leases).................... $240,520
Other real estate owned..................................................... $690
Investments in unconsolidated subsidiaries and associated companies......... $0
Customer's liability to this bank on acceptances outstanding................ $43,599
Intangible assets .......................................................... $241,568
Other assets ............................................................... $1,339,274
-----------------------
TOTAL ASSETS $20,210,599
=======================
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices ................................................... $9,863,116
Non-interest bearing..........................................$3,548,093
Interest bearing .............................................$6,315,023
In foreign offices, Edge and Agreement subsidiaries, and IBF's ........ $1,365,514
Non-interest bearing ......................................... $35,537
Interest bearing .............................................$1,329,977
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................................................................. $4,739,578
Trading Liabilities 99,379
Other borrowed
money:..................................................................... $2,182,088
a. With remaining maturity of one year or less $0
b. With remaining maturity of more than one year
Bank's liability on acceptances executed and outstanding $43,599
Subordinated notes and debentures.......................................... $225,000
Other liabilities.......................................................... $441,231
--------------
TOTAL LIABILITIES $18,959,505
==============
EQUITY CAPITAL
Common stock .............................................................. $100,000
Surplus.................................................................... $610,512
a. Undivided profits and capital reserves................................. $678,275
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ ($137,693)
-------------
TOTAL EQUITY CAPITAL $1,251,094
=============
Total liabilities, limited-life preferred stock, and equity
capital.................................................................... $20,210,599
=============
</TABLE>
I, Christy Wipper, 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.
CHRISTY WIPPER
1/27/00
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.
ALAN G. McNALLY,
EDWARD W. LYMAN,
RICHARD E. TERRY Directors.
4
