<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 11, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
UTILICORP CAPITAL L.P. UTILICORP UNITED INC.
(Exact name of Registrant as specified (Exact name of Registrant as specified
in its charter) in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
43-1711107 44-0541877
(I.R.S. Employee Identification No.) (I.R.S. Employer Identification No.)
C/O RICHARD C. GREEN, JR. RICHARD C. GREEN, JR.
UTILICORP UNITED INC. UTILICORP UNITED INC.
911 MAIN, KANSAS CITY, MISSOURI 64105 911 MAIN, KANSAS CITY, MISSOURI 64105
816-421-6600 816-421-6600
(Name, address, including zip code, and (Name, address, including zip code, and
telephone number, including area code, telephone number, including area code,
of Registrant's principal executive of Registrant's principal executive
offices and agent for service) offices and agent for service)
</TABLE>
--------------------------
COPIES OF CORRESPONDENCE TO:
DENNIS P. WILBERT, ESQ. ROBERT W. MULLEN, JR., ESQ.
BLACKWELL SANDERS MATHENY MILBANK, TWEED, HADLEY & MCCLOY
WEARY & LOMBARDI L.C. 1 CHASE MANHATTAN PLAZA
TWO PERSHING SQUARE NEW YORK, NEW YORK 10005
2300 MAIN STREET
KANSAS CITY, MISSOURI 64108
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED
OFFERING MAXIMUM
AMOUNT TO PRICE AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF BE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) UNIT (1)(2)(3) PRICE (1)(2)(3) FEE (1)
<S> <C> <C> <C> <C>
UtiliCorp Capital L.P. Preferred Securities.......
UtiliCorp United Inc. Junior Subordinated
Debentures.......................................
UtiliCorp United Inc. Guarantee with
respect to UtiliCorp Capital L.P.
Preferred Securities (4).........................
Total......................................... $100,000,000 100% $100,000,000 $34,483
<FN>
(1) There are being registered hereunder such presently indeterminate number of
Preferred Securities of UtiliCorp Capital L.P. with an aggregate initial
offering price not to exceed $100,000,000, plus an indeterminate principal
amount of Junior Subordinated Debentures of UtiliCorp United Inc. with an
aggregate principal amount not to exceed $100,000,000 as may be distributed
upon a dissolution of UtiliCorp Capital L.P., and the distribution of the
assets of UtiliCorp Capital L.P., which would include such Junior
Subordinated Debentures for which no separate consideration will be
received. Pursuant to Rule 457(o) under the Securities Act of 1933 which
permits the registration fee to be calculated on the basis of the maximum
offering price of all the securities listed, the table does not specify by
each class information as to the amount to be registered, proposed maximum
offering price per unit or proposed maximum aggregate offering price.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Exclusive of accrued interest and dividends, if any.
(4) No separate consideration will be received for the UtiliCorp United Inc.
Guarantee.
</TABLE>
--------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 11, 1995
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1995
PREFERRED SECURITIES
UTILICORP CAPITAL L.P.
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES, SERIES A (MIPS-SM-*)
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT THE ISSUER HAS FUNDS AS SET FORTH HEREIN BY
UTILICORP UNITED INC.
-----------------------------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing the limited partner interests
offered hereby are being issued by UtiliCorp Capital L.P., a limited partnership
formed under the laws of the State of Delaware ("UtiliCorp Capital"). UtiliCorp
United Inc., a Delaware corporation, ("UtiliCorp") is the general partner in
UtiliCorp Capital. UtiliCorp Capital exists for the sole purpose of issuing its
partnership interests and investing the proceeds thereof in debt securities of
UtiliCorp. The limited partner interests represented by the Series A Preferred
Securities will have a preference with respect to cash distributions and amounts
payable on liquidation over the general partner's interest in UtiliCorp Capital.
Holders of the Series A Preferred Securities will be entitled to receive
cumulative cash distributions at an annual rate of % of the liquidation
preference of $25 per Series A Preferred Security, accruing from the date of
original issuance and payable monthly in arrears on the last day of each
calendar month of each year, commencing , 1995 ("dividends"). The
payment of dividends, out of moneys held by UtiliCorp Capital, and payments on
liquidation of UtiliCorp Capital or the redemption of Series A Preferred
Securities, as set forth below, are guaranteed by UtiliCorp to the extent
described herein and in the accompanying Prospectus (the "Guarantee"). See
"Description of the Guarantee" in the accompanying Prospectus. If UtiliCorp
fails to make interest payments on its debt securities purchased by UtiliCorp
Capital, UtiliCorp Capital will have insufficient funds to pay dividends on the
Series A Preferred Securities. The Guarantee does not cover payment of dividends
when UtiliCorp Capital does not have sufficient funds to pay such dividends. In
such event, the remedy of a holder of Series A Preferred Securities is to
enforce the rights of UtiliCorp Capital under the debt securities purchased by
UtiliCorp Capital from UtiliCorp.
The Series A Preferred Securities are redeemable at the option of UtiliCorp
Capital, in whole or in part, from time to time, on or after , 2000,
at $25 per Series A Preferred Security plus accrued and unpaid dividends thereon
to the date fixed for redemption (the "Redemption Price"). See "Description of
the Series A Preferred Securities -- Optional Redemption".
In addition, upon the occurrence of certain special events arising from a
change in law or a change in legal interpretation, the Series A Preferred
Securities are redeemable in whole at the Redemption Price at the option of
UtiliCorp, in its capacity as the general partner of UtiliCorp Capital (the
"General Partner"), or the General Partner may dissolve UtiliCorp Capital and
cause to be distributed to the holders of the Series A Preferred Securities, on
a pro rata basis, % Junior Subordinated Deferrable Interest Debentures,
Series A of UtiliCorp (the "Series A Junior Subordinated Debentures"), having
the terms described herein, in lieu of any cash distribution. If the Series A
Junior Subordinated Debentures are distributed to the holders of the Series A
Preferred Securities, UtiliCorp will use its best efforts to have the Series A
Junior Subordinated Debentures listed on the New York Stock Exchange or on such
other exchange as the Series A Preferred Securities are then listed. The
obligations of UtiliCorp under the Series A Junior Subordinated Debentures are
subordinated and junior in right of payment to Senior Indebtedness (as defined
in the accompanying Prospectus) of UtiliCorp. At March 31, 1995, Senior
Indebtedness of UtiliCorp aggregated approximately $1,239.7 million. Senior
Indebtedness includes only indebtedness of UtiliCorp on an unconsolidated basis.
See "Description of the Series A Preferred Securities -- Special Event
Redemption or Distribution" and "Description of the Series A Junior Subordinated
Debentures".
In the event of the dissolution of UtiliCorp Capital, the holders of the
Series A Preferred Securities will be entitled to receive for each Series A
Preferred Security a liquidation preference of $25 plus accrued and unpaid
dividends thereon to the date of payment, subject to certain limitations,
unless, in connection with such dissolution, Series A Junior Subordinated
Debentures are distributed to the holders of the Series A Preferred Securities.
See "Description of the Series A Preferred Securities -- Liquidation
Distribution Upon Dissolution".
-----------------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED
SECURITIES AND THE SERIES A JUNIOR SUBORDINATED DEBENTURES MAY BE DEFERRED AND
THE RELATED FEDERAL INCOME TAX CONSEQUENCES.
-----------------------------
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange.
-----------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT
RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE (1) COMMISSION (2) UTILICORP CAPITAL (3)(4)
--------------------- --------------------- ------------------------
<S> <C> <C> <C>
Per Series A Preferred Security.............. $ (3) $
Total........................................ $ (3) $
<FN>
- -----------------
(1) Plus accrued dividends, if any, from the date of original issuance.
(2) UtiliCorp Capital and UtiliCorp have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting".
(3) In view of the fact that the proceeds of the sale of the Series A
Preferred Securities will ultimately be invested in Series A Junior
Subordinated Debentures, the Underwriting Agreement provides that
UtiliCorp will pay to the Underwriters, as compensation ("Underwriters'
Compensation") for their arranging the investment therein of such
proceeds, $ per Series A Preferred Security (or $ in the
aggregate); provided, that such compensation will be $ per Series
A Preferred Security sold to certain institutions. Therefore, to the
extent that Series A Preferred Securities are sold to such institutions,
the actual amount of Underwriters' Compensation will be less than the
amount specified in the preceding sentence. See "Underwriting".
(4) Expenses of the offering which are payable by UtiliCorp are estimated to
be $ .
</TABLE>
-----------------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, and subject to receipt and acceptance by
them and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1995.
- -----------------
*MIPS is a servicemark of Goldman, Sachs & Co.
-----------------------------
GOLDMAN, SACHS & CO. SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
-----------------
The date of this Prospectus Supplement is , 1995.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
--------------------
S-2
<PAGE>
UTILICORP CAPITAL L.P.
UtiliCorp Capital is a limited partnership which was formed under the
Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") by
filing a certificate of limited partnership with the Delaware Secretary of State
on May 3, 1995. The initial partners in UtiliCorp Capital are UtiliCorp, as
general partner, and UCU Finance Corp., a Delaware corporation and a
wholly-owned subsidiary of UtiliCorp ("UCU Finance"), as limited partner. Upon
the issuance of the Series A Preferred Securities, which securities represent
limited partner interests in UtiliCorp Capital, UCU Finance will remain as a
limited partner, but will have no interest in the profits and dividends or in
the assets of UtiliCorp Capital. The General Partner will agree to contribute
capital to the extent required to maintain its capital at an amount equal to at
least 3% of the total capital contributions to UtiliCorp Capital. UtiliCorp and
UCU Finance entered into an agreement of limited partnership dated as of May 1,
1995. Such agreement of limited partnership will be amended and restated in its
entirety (as so amended and restated, the "Limited Partnership Agreement")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form a part.
UtiliCorp Capital is managed by the General Partner and exists for the sole
purpose of issuing its partnership interests and investing the proceeds thereof
in junior subordinated debentures of UtiliCorp ("Junior Subordinated
Debentures") and investing the proceeds of the capital contribution of the
General Partner in debt securities of UtiliCorp or U.S. Government Obligations
(as defined in the Limited Partnership Agreement) with maturities no greater
than, and having a ranking not subordinate to, the Junior Subordinated
Debentures to which such capital contribution relates. The rights of the holders
of the Series A Preferred Securities, including economic rights, rights to
information and voting rights, are set forth in the Limited Partnership
Agreement and the Partnership Act. See "Description of the Series A Preferred
Securities".
UTILICORP UNITED INC.
UtiliCorp is a public utility company which supplies electric and gas
utility service through its seven operating divisions, Missouri Public Service,
Peoples Natural Gas, Kansas Public Service, Northern Minnesota Utilities,
Michigan Gas Utilities, West Virginia Power and WestPlains Energy, and through a
Canadian subsidiary, West Kootenay Power, Ltd. UtiliCorp also holds a 33%
interest through a majority-owned subsidiary in a New Zealand electric
distribution company. The Company has two non-regulated subsidiaries, Aquila
Energy Corporation and UtilCo Group Inc., which own utility and energy related
assets and engage in energy related businesses.
The utility businesses of UtiliCorp are seasonal, with electric revenues
peaking in the summer and gas revenues peaking in the winter.
UtiliCorp is actively seeking expansion through the prudent acquisition of
utility and other energy related properties, including electric and gas
operating utilities, interests in electric generating assets, natural gas
gathering systems and proven reserves.
S-3
<PAGE>
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters:
SUBORDINATION OF GUARANTEE AND SERIES A JUNIOR SUBORDINATED
DEBENTURES. UtiliCorp's obligations under the Guarantee are subordinate and
junior in right of payment to all other liabilities of UtiliCorp. The
obligations of UtiliCorp under the Series A Junior Subordinated Debentures
described under "Description of the Series A Junior Subordinated Debentures" are
subordinate and junior in right of payment to Senior Indebtedness of UtiliCorp.
At March 31, 1995, Senior Indebtedness of UtiliCorp aggregated approximately
$1,239.7 million. Senior Indebtedness includes only indebtedness of UtiliCorp on
an unconsolidated basis. There are no terms in the Series A Preferred
Securities, the Series A Junior Subordinated Debentures or the Guarantee that
limit UtiliCorp's ability to incur additional indebtedness, including
indebtedness that ranks senior to the Series A Junior Subordinated Debentures
and the Guarantee. See "Description of the Guarantee -- Status of the Guarantee"
and "Description of the Junior Subordinated Debentures -- Subordination" in the
accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD. UtiliCorp has the right under the
Indenture to extend the interest payment period from time to time on the Series
A Junior Subordinated Debentures to a period not exceeding 60 consecutive
months, and, as a consequence, monthly dividends on the Series A Preferred
Securities would be deferred (but would continue to accrue with interest
thereon) by UtiliCorp Capital during any such extended interest payment period.
In the event that UtiliCorp exercises this right, UtiliCorp may not declare or
pay dividends on, or redeem, purchase or acquire, any of its capital stock.
Prior to the termination of any such extension period, UtiliCorp may further
extend the interest payment period, provided that such extension period together
with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any extension period and the payment
of all amounts then due, UtiliCorp may select a new extension period, subject to
the above requirements. UtiliCorp Capital and UtiliCorp believe that the
extension of a payment period on the Series A Junior Subordinated Debentures is
unlikely. See "Description of the Series A Preferred Securities -- Dividends"
and "Description of the Series A Junior Subordinated Debentures -- Option to
Extend Interest Payment Period".
Should an extended interest payment period occur, UtiliCorp Capital will
continue to accrue income for United States federal income tax purposes which
will be allocated, but not distributed, to holders of record of Series A
Preferred Securities. As a result, such a holder will include such interest in
gross income for United States federal income tax purposes in advance of the
receipt of cash, and will not receive the cash from UtiliCorp Capital related to
such income if such a holder disposes of his or her Series A Preferred
Securities prior to the record date for payment of dividends. See "United States
Taxation -- Potential Extension of Interest Payment Period".
SPECIAL EVENT REDEMPTION OR DISTRIBUTION. Upon the occurrence of a Special
Event (as defined herein), the General Partner will elect to either (i) redeem
the Series A Preferred Securities in whole or (ii) dissolve UtiliCorp Capital
and cause Series A Junior Subordinated Debentures to be distributed to the
holders of the Series A Preferred Securities in connection with the liquidation
of UtiliCorp Capital. The Series A Junior Subordinated Debentures will initially
be issued at face value as a Global Security (as defined herein) and will be
unlimited in aggregate principal amount. In the case of a Tax Event (as defined
herein), the General Partner may also elect to cause the Series A Preferred
Securities to remain outstanding. See "Description of the Series A Preferred
Securities -- Special Event Redemption or Distribution" and "Description of the
Series A Junior Subordinated Debentures -- General".
Under current United States federal income tax law, such a distribution
would not be a taxable event to holders of the Series A Preferred Securities.
Under a change in law, a change in legal interpretation or the other
circumstances giving rise to a Special Event, however, the dissolution could be
a taxable event to holders of the Series A Preferred Securities. In the judgment
of special tax counsel to UtiliCorp and UtiliCorp Capital, the series of events
which would result in the recognition of taxable gain by holders of
S-4
<PAGE>
the Series A Preferred Securities, by reason of a dissolution of UtiliCorp
Capital in response to a Special Event, is unlikely to occur. There can be no
assurance in this regard, however. See "United States Taxation -- Receipt of
Series A Junior Subordinated Debentures Upon Liquidation of UtiliCorp Capital".
REPLACEMENT OF UTILICORP CAPITAL WITH A TRUST. Subject to certain
conditions, UtiliCorp Capital has the right to replace UtiliCorp Capital with a
trust as the issuing vehicle. In the event such replacement is made, investors'
rights in the successor securities will remain materially unchanged; however,
investors will receive for tax reporting purposes a Form-1099 instead of a Form
K-1. It is expected that the Series A Preferred Securities will be listed as an
equity security on the New York Stock Exchange irrespective of whether the
replacement is made. Accordingly, the Series A Preferred Securities are expected
to trade "flat"; thus, purchasers will not pay and sellers will not receive any
accrued and unpaid interest on the Series A Preferred Securities that is not
included in the trading price. However, if the replacement is made, for United
States Federal income tax purposes, interest on the Series A Preferred
Securities will be included in income as it accrues (regardless of the method of
accounting otherwise used), rather than when it is allocated or paid. See
"Description of the Series A Preferred Securities -- Merger, Consolidation or
Amalgamation of UtiliCorp Capital", "United States Taxation -- Income from
Series A Preferred Securities" and "United States Taxation -- Potential
Extension of Interest Payment Period".
RECENT DEVELOPMENTS
On March 29, 1995, the Federal Energy Regulatory Commission (the "FERC")
issued a Notice of Proposed Rulemaking on Open Transmission Access (the "Open
Access NOPR"). The Open Access NOPR sets forth the FERC's proposal to encourage
greater competition in the wholesale electric power market by requiring all
public utilities subject to the FERC's jurisdiction, such as UtiliCorp, to
provide transmission service to themselves and to third parties on comparable
terms.
The proposed FERC rule requires, among other things, that utilities subject
to FERC jurisdiction (i) file tariffs under which they will provide transmission
service to third parties, (ii) offer transmission service to eligible customers
comparable to the service that they provide to themselves and (iii) take service
under the tariffs for their own wholesale sales and purchases of electric
energy. If the rules proposed in the Open Access NOPR were to become effective,
their implementation would result in extensive, although not unexpected, changes
in electric power markets. While UtiliCorp continues to study the Open Access
NOPR rules, UtiliCorp cannot accurately predict the exact nature of such rules,
the time at which such rules will become effective, nor the ultimate impact such
rules will have on UtiliCorp. UtiliCorp has been openly in favor of an orderly
transition to competitive electric markets.
S-5
<PAGE>
SUMMARY FINANCIAL AND OPERATING INFORMATION OF UTILICORP
The selected data presented below under the captions "Income Statement Data"
for each of the years in the three-year period ended December 31, 1994 and
"Balance Sheet Data" as of the end of each of such years has been derived from
the books, records and the consolidated financial statements of UtiliCorp, which
have been audited by Arthur Andersen LLP, independent public accountants. The
selected data presented below under the captions "Income Statement Data" for
each of the years in the two-year period ended December 31, 1991 and "Balance
Sheet Data" as of the end of each of such years has been derived from the books,
records and the consolidated financial statements of UtiliCorp, which have been
audited by predecessor, independent public accountants. The selected data
presented below as of and for each of the three month periods ended March 31,
1995 and 1994 has been derived from the books, records and the consolidated
financial statements of UtiliCorp, which have not been audited. The consolidated
financial statements as of December 31, 1994, 1993 and 1992, and for each of the
years in the three-year period ended December 31, 1994, and the independent
auditors' report thereon, and the consolidated financial statements as of and
for each of the three month periods ended March 31, 1995 and 1994, have been
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus. This financial information should be
read in conjunction with such consolidated financial statements and notes
thereto.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------------------------
1994 1993 1992 1991 1990
---------- ---------- ---------- ---------- ----------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues........................................... $ 1,514.6 $ 1,571.6 $ 1,298.9 $ 1,075.2 $ 883.5
Income from Operations(1)(3)....................... 230.5 152.2 169.0 196.0 134.6
Net Income(2)...................................... 94.4 86.4 52.9 77.6 50.4
Earnings Available for Common Shares(5)............ 91.4 79.5 46.0 69.8 42.5
Primary Earnings per Common Share(5)............... 2.08 1.95 1.32 2.37 1.77
Fully Diluted Earnings per Common Share............ 2.06 1.92 1.31 2.27 1.72
Cash Dividends Paid per Common Share............... 1.70 1.62 1.60 1.54 1.46
BALANCE SHEET DATA:
Total Assets(4).................................... $ 3,111.1 $ 2,850.5 $ 2,552.8 $ 2,387.3 $ 1,823.2
Short-Term Debt (including Current Maturities)..... 321.2 71.8 236.8 114.5 60.4
Long-Term Debt..................................... 976.9 1,009.7 890.8 928.1 667.6
Preference and Preferred Stock(5).................. 25.4 83.9 95.1 97.1 97.2
Common Shareholders' Equity........................ 906.8 851.7 661.1 660.7 477.5
</TABLE>
S-6
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
---------------------
1995 1994
---------- ---------
(UNAUDITED)
<S> <C> <C>
INCOME STATEMENT DATA:
Revenues................................................................................... $ 463.8 $ 497.3
Income from Operations..................................................................... 82.3 83.6
Net Income................................................................................. 32.2 39.0
Earnings Available for Common Shares....................................................... 31.7 37.4
Primary Earnings per Common Share.......................................................... .71 .88
Fully Diluted Earnings per Common Share.................................................... .70 .85
Cash Dividends Paid per Common Share....................................................... .43 .42
BALANCE SHEET DATA:
Total Assets............................................................................... $ 3,174.8
Short-Term Debt (including Current Maturities)............................................. 361.9
Long-Term Debt............................................................................. 977.8
Preference and Preferred Stock............................................................. 25.4
Common Shareholders' Equity................................................................ 923.3
<FN>
- ------------
(1) In 1993, UtiliCorp recorded a $69.8 million restructuring charge relating
to the disposal of selected gas sales contracts, impairment of certain
offshore assets and other restructuring costs.
(2) In 1993, Aquila Gas Pipeline Corporation ("AGP"), an indirect subsidiary of
the Company, completed an initial public offering and sale of 5.4 million
shares of common stock. This transaction resulted in a non-taxable gain of
$47.8 million.
(3) In 1992, the Company recognized a $17.7 million charge related to improper
payments made by former employees of Aquila Energy Resources.
(4) In September 1991, the Company acquired the electric utility properties of
Centel Corporation for approximately $235.2 million including liabilities
assumed. Also in September 1991, the Company exercised its option to
purchase the remaining 51% partnership interest in a gas transmission and
gathering network in which the Company previously owned a 49% interest.
These assets now primarily comprise AGP.
(5) In 1994, 2.8 million shares of $1.775 Series Cumulative Convertible
Preference Stock were converted into approximately 2.7 million shares of
common stock. The remaining shares (approximately 0.1 million) were
redeemed on May 26, 1994 at a price of $21.60 per share.
</TABLE>
S-7
<PAGE>
CAPITALIZATION OF UTILICORP
The following table sets forth the consolidated short-term obligations and
capitalization of UtiliCorp as of March 31, 1995, and as adjusted to reflect the
application of the estimated net proceeds from the sale of the Series A
Preferred Securities. See "Use of Proceeds".
<TABLE>
<CAPTION>
MARCH 31, 1995
-------------------------
ACTUAL AS ADJUSTED
---------- -------------
(IN MILLIONS)
<S> <C> <C>
Short-term Obligations, including Current Maturities................................... $ 361.9 $
Preference Stock....................................................................... 25.0 25.0
Preferred Stock of Subsidiaries........................................................ 0.4
Long-Term Debt......................................................................... 977.8 977.8
Common Shareholders' Equity:
Common Stock......................................................................... 44.9 44.9
Premium on Capital Stock............................................................. 776.7 776.7
Retained Earnings.................................................................... 118.7 118.7
Treasury Stock....................................................................... (2.3) (2.3)
Currency Translation Adjustment...................................................... (14.7) (14.7)
---------- -------------
Total Shareholders' Equity......................................................... 923.3 923.3
---------- -------------
Total Capitalization (excluding Short-Term Obligations)............................ $ 1,926.5 $
</TABLE>
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
invested in the Series A Junior Subordinated Debentures issued pursuant to the
Indenture described herein, and ultimately will be used by UtiliCorp to reduce
outstanding short-term debt previously incurred for construction and
acquisitions and for general corporate purposes. At March 31, 1995, the Company
had outstanding short-term borrowings (excluding current maturities of long-term
debt) of $229.4 million with a weighted average interest rate of 6.58%.
As discussed under "UtiliCorp United Inc." in the accompanying Prospectus,
UtiliCorp is actively seeking to make acquisitions of utility and other energy
related properties. Such acquisitions, if made, may require additional permanent
financings. The nature and amount of such financings will depend on, among other
things, market conditions at the time of the financings.
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
GENERAL
All of the partnership interests in UtiliCorp Capital, other than the Series
A Preferred Securities offered hereby, are owned directly or indirectly by
UtiliCorp. The Limited Partnership Agreement authorizes and creates the Series A
Preferred Securities, which represent limited partner interests in UtiliCorp
Capital (the "Preferred Securities"). Preferred Securities may be issued from
time to time in one or more series as described in the accompanying Prospectus.
The limited partner interests represented by the Series A Preferred Securities
will have a preference with respect to dividends and amounts payable on
liquidation over the General Partner's interest in UtiliCorp Capital. The
Limited Partnership Agreement does not permit the issuance of any Preferred
Securities ranking, as to participation in profits and dividends and in the
assets of UtiliCorp Capital, senior or junior to the Series A Preferred
Securities or the incurrence of any indebtedness by UtiliCorp Capital. The
summary of certain terms and provisions of the Series A Preferred Securities set
forth below does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Limited Partnership Agreement and the
Partnership Act.
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DIVIDENDS
The dividends payable on each Series A Preferred Security will be fixed at a
rate per annum of % of the stated liquidation preference of $25 per
Preferred Security. Dividends in arrears for more than one month will bear
interest thereon at the rate per annum of % thereof. The term "dividends"
as used herein includes any such interest payable unless otherwise stated. The
amount of dividends payable for any period will be computed on the basis of a
360-day year of twelve 30-day months.
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from the date of initial issuance and will be payable monthly in arrears,
on the last day of each calendar month of each year, commencing ,
1995, when, as and if available and determined to be so payable by UtiliCorp, as
the General Partner, except as otherwise described below. UtiliCorp has the
right under the Indenture to extend the interest payment period from time to
time on the Series A Junior Subordinated Debentures to a period not exceeding 60
consecutive months, and, as a consequence, monthly dividends on the Series A
Preferred Securities would be deferred (but would continue to accrue with
interest) by UtiliCorp Capital during any such extended interest payment period.
In the event that UtiliCorp exercises this right, UtiliCorp may not declare or
pay dividends on, or redeem, purchase or acquire, any of its capital stock.
Prior to the termination of any such extension period, UtiliCorp may further
extend the interest payment period, provided that such extension period together
with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any extension period and the payment
of all amounts then due, UtiliCorp may select a new extension period, subject to
the above requirements. See "Description of the Series A Junior Subordinated
Debentures -- Interest" and "-- Option to Extend Interest Payment Period".
Dividends on the Series A Preferred Securities must be paid on the dates
payable to the extent that UtiliCorp Capital has (i) funds legally available for
the payment of such dividends and (ii) cash on hand sufficient to permit such
payments. It is anticipated that UtiliCorp Capital's earnings available for
distribution to the holders of Series A Preferred Securities will be limited to
payments under the Series A Junior Subordinated Debentures in which UtiliCorp
Capital will invest the proceeds from the issuance and sale of the Series A
Preferred Securities and to earnings, if any, on any notes or other evidences of
indebtedness issued by UtiliCorp and held by UtiliCorp Capital to evidence any
borrowing by UtiliCorp from UtiliCorp Capital of an amount up to the amount of
UtiliCorp's capital contribution to UtiliCorp Capital. See "Description of the
Series A Junior Subordinated Debentures". The payment of dividends, out of
moneys held by UtiliCorp Capital, are guaranteed by UtiliCorp as set forth under
"Description of the Guarantee" in the accompanying Prospectus.
Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of UtiliCorp Capital on
the relevant record dates, which, as long as the Series A Preferred Securities
remain in book-entry-only form, will be one Business Day (as defined below)
prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Limited Partnership Agreement, each such
payment will be made as described under "Book-Entry-Only Issuance -- The
Depository Trust Company" below. In the event the Series A Preferred Securities
shall not continue to remain in book-entry-only form, the General Partner shall
have the right to select relevant record dates which shall be more than one
Business Day prior to the relevant payment dates. In the event that any date on
which dividends are payable on the Series A Preferred Securities is not a
Business Day, then payment of the dividend payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close.
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CERTAIN RESTRICTIONS ON UTILICORP CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, UtiliCorp Capital shall not:
(i) pay, or set aside for payment, any dividends on any other series of
Preferred Securities, unless the amount of any dividends declared on any
other series of Preferred Securities is paid on such other series of
Preferred Securities and the Series A Preferred Securities on a pro rata
basis on the date such dividends are paid on such other series of Preferred
Securities, so that
(x) the aggregate amount of dividends paid on the Series A Preferred
Securities bears to the aggregate amount of dividends paid on such other
series of Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of such other series of Preferred
Securities; or
(ii) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of UtiliCorp
Capital, in whole or in part, from time to time, on or after , 2000,
upon not less than 30 nor more than 60 days' notice, at the Redemption Price. In
the event that fewer than all the outstanding Series A Preferred Securities are
to be so redeemed, the Series A Preferred Securities to be redeemed will be
selected as described under "Book-Entry-Only Issuance -- The Depository Trust
Company" below. If a partial redemption would result in the delisting of the
Series A Preferred Securities, UtiliCorp Capital may only redeem the Series A
Preferred Securities in whole.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Tax Event or an Investment Company Event (each, as defined below, and,
each, a "Special Event") shall occur and be continuing, the General Partner
shall elect to either (i) redeem the Series A Preferred Securities in whole (and
not in part), upon not less than 30 or more than 60 days' notice at the
Redemption Price within 90 days following the occurrence of such Special Event;
provided, that, if at the time there is available to the General Partner the
opportunity to eliminate, within such 90 day period, the Special Event by taking
some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure, which has no adverse effect on
UtiliCorp Capital or UtiliCorp, the General Partner will pursue such measure in
lieu of redemption, or (ii) dissolve UtiliCorp Capital and after satisfaction of
creditors as required by the Partnership Act, cause Series A Junior Subordinated
Debentures to be distributed to the holders of the Series A Preferred Securities
in liquidation of UtiliCorp Capital, within 90 days following the occurrence of
such Special Event. In the case of a Tax Event, the General Partner may also
elect to cause the Series A Preferred Securities to remain outstanding.
"Tax Event" means that the General Partner shall have obtained an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) any amendment to or change in an interpretation or application of
such laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after
such date) or (c) any interpretation or pronouncement that provides for a
position with respect to such laws or regulations that
S-10
<PAGE>
differs from the generally accepted position on , 1995, which
amendment or change is effective or such interpretation or pronouncement is
announced on or after , 1995, there is more than an insubstantial
risk that (i) UtiliCorp Capital is subject to federal income tax with respect to
interest received on the Series A Junior Subordinated Debentures, (ii) interest
payable to UtiliCorp Capital on the Series A Junior Subordinated Debentures will
not be deductible for federal income tax purposes or (iii) UtiliCorp Capital is
subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental changes.
"Investment Company Event" means the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that UtiliCorp Capital is
or will be considered an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), which
Change in 1940 Act Law becomes effective on or after , 1995;
provided, that no Investment Company Event shall be deemed to have occurred if
the General Partner obtains a written opinion of nationally recognized
independent counsel experienced in practice under the 1940 Act to the effect
that the General Partner has successfully issued an additional or supplemental
irrevocable and unconditional guarantee (x) of accrued and unpaid dividends
(whether or not determined to be paid out of moneys legally available therefor)
on the Series A Preferred Securities and (y) of the full amount of the
Liquidation Distribution (as hereinafter defined) on the Series A Preferred
Securities upon a liquidation of UtiliCorp Capital (regardless of the amount of
assets of UtiliCorp Capital otherwise available for distribution in such
liquidation) to avoid such Change in 1940 Act Law so that in the opinion of such
counsel, notwithstanding such Change in 1940 Act Law, UtiliCorp Capital is not
required to be registered as an "investment company" within the meaning of the
1940 Act.
After the date fixed for any distribution of Series A Junior Subordinated
Debentures, upon dissolution of UtiliCorp Capital, (i) the Series A Preferred
Securities will no longer be deemed to be outstanding, (ii) The Depository Trust
Company (the "Depository" or "DTC") or its nominee, as the record holder of the
Series A Preferred Securities, will receive a registered global certificate or
certificates representing the Series A Junior Subordinated Debentures to be
delivered upon such distribution and (iii) any certificates representing Series
A Preferred Securities not held by DTC or its nominee will be deemed to
represent Series A Junior Subordinated Debentures having a principal amount
equal to the aggregate of the stated liquidation preference of, and accrued and
unpaid dividends on, such Series A Preferred Securities until such certificates
are presented to UtiliCorp or its agent for transfer or reissuance.
MANDATORY REDEMPTION
Upon the repayment of the Series A Junior Subordinated Debentures at
maturity (or any new Junior Subordinated Debentures replacing the Series A
Junior Subordinated Debentures as contemplated by the following sentence), the
proceeds from such repayment will be applied to redeem the Series A Preferred
Securities, in whole, upon not less than 30 nor more than 60 days' notice, at
the Redemption Price. Notwithstanding the foregoing, the Series A Preferred
Securities will not be redeemed if (i) in lieu of repaying the Series A Junior
Subordinated Debentures when due, UtiliCorp is permitted by UtiliCorp Capital to
exchange such Series A Junior Subordinated Debentures for new Junior
Subordinated Debentures or (ii) UtiliCorp repays such Series A Junior
Subordinated Debentures when due but is permitted by UtiliCorp Capital to
reborrow the proceeds from such repayment which reborrowing will be evidenced by
new Junior Subordinated Debentures; PROVIDED, that UtiliCorp Capital will only
permit UtiliCorp to so exchange the Series A Junior Subordinated Debentures for
new Junior Subordinated Debentures or reborrow the proceeds from the repayment
thereof if UtiliCorp Capital owns all of such Series A Junior Subordinated
Debentures and the following conditions are satisfied (which satisfaction, in
the case of clauses (f) through (j), shall be determined in the judgment of the
General Partner and UtiliCorp Capital's financial advisor, selected by the
General Partner and who shall not be affiliated with the General Partner and
shall be among the 30 largest investment banking firms, measured by total
capital, in the United States at the time): (a) UtiliCorp is not bankrupt,
insolvent or in liquidation, (b) UtiliCorp is not in default in the payment of
any interest or principal under any of the Junior Subordinated
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Debentures, (c) UtiliCorp has made timely payments on all Series A Junior
Subordinated Debentures being exchanged or repaid for the immediately preceding
24 months (and has not elected to extend any interest payment period for such
Series A Junior Subordinated Debentures during such 24 month period), (d) such
new loan will mature no later than the 49th anniversary of the date of the
initial issuance of the Series A Junior Subordinated Debentures, (e) UtiliCorp
Capital is not in arrears on payments of dividends on any Preferred Securities,
(f) UtiliCorp is expected to be able to make timely payment of principal and
interest on such new loan, (g) such new loan is being made on terms, and under
circumstances, that are consistent with those which a lender would then require
for a loan to an unrelated party, (h) such new loan is being made at a rate of
interest sufficient to provide payments equal to or greater than the amount of
dividend payments required on the Series A Preferred Securities, (i) such new
loan is being made for a term that is consistent with market circumstances and
UtiliCorp's financial condition and (j) immediately prior to the making of such
new loan, the senior unsecured long-term debt of UtiliCorp is (or if no such
debt is outstanding, would be) rated not less than BBB- (or the equivalent) by
Standard & Poor's Corporation or Baa3 (or the equivalent) by Moody's Investors
Service, Inc. and the subordinated unsecured long-term debt of UtiliCorp (or, if
more than one issue of such subordinated debt is outstanding, the most junior of
such issues) is (or if no such debt is outstanding, would be) rated not less
than BBB- (or the equivalent) by Standard & Poor's Corporation and Baa3 by
Moody's Investors Service, Inc. (or if either of such rating organizations is
not then rating UtiliCorp's senior or subordinated unsecured long-term debt, as
the case may be, the equivalent of such ratings by any other "nationally
recognized statistical rating organization" as that term is defined by the
Securities and Exchange Commission for purposes of Rule 436(g) under the
Securities Act of 1933, as amended).
REDEMPTION PROCEDURES
UtiliCorp Capital may not redeem fewer than all the outstanding Series A
Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If UtiliCorp Capital gives a notice of redemption in respect of Series A
Preferred Securities (which notice will be irrevocable), then, by 12:00 noon,
New York time, on the redemption date, UtiliCorp Capital will irrevocably
deposit with DTC funds sufficient to pay the applicable Redemption Price and
will give DTC irrevocable instructions and authority to pay the Redemption Price
to the holders of the Series A Preferred Securities. See "Book-Entry-Only
Issuance -- The Depository Trust Company". If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of holders of such Series A Preferred Securities so called for
redemption will cease, except the right of the holders of such Series A
Preferred Securities to receive the Redemption Price, but without interest on
such Redemption Price. In the event that any date fixed for redemption of Series
A Preferred Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the Redemption Price in respect of Series A Preferred Securities
is improperly withheld or refused and not paid either by UtiliCorp Capital or by
UtiliCorp pursuant to the Guarantee described under "Description of the
Guarantee" in the accompanying Prospectus, dividends on such Series A Preferred
Securities will continue to accrue at the then applicable rate, from the
original redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
United Sates federal securities laws), UtiliCorp or its subsidiaries may at any
time and from time to time purchase outstanding Series A Preferred Securities by
tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution, winding-up or
termination of UtiliCorp Capital, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the
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<PAGE>
assets of UtiliCorp Capital available for distribution to partners after
satisfaction of liabilities of creditors as required by the Partnership Act,
before any distribution of assets is made to the General Partner, but together
with the holders of every other series of Preferred Securities outstanding, an
amount equal to, in the case of holders of Series A Preferred Securities, the
aggregate of the stated liquidation preference of $25 per Series A Preferred
Security and accrued and unpaid dividends thereon to the date of payment (the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, the Limited Partnership Agreement otherwise provides
or Series A Junior Subordinated Debentures in an aggregate principal amount
equal to the Liquidation Distribution have been distributed on a pro rata basis
to the holders of the Series A Preferred Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid only
in part because UtiliCorp Capital has insufficient assets available to pay in
full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by UtiliCorp Capital on the Series A Preferred
Securities and on such other series of Preferred Securities shall be paid on a
pro rata basis, so that
(i) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation distributions
on the other series of Preferred Securities the same ratio as
(ii) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
Pursuant to the Limited Partnership Agreement, UtiliCorp Capital shall be
dissolved and its affairs shall be wound up: (i) on December 31, 2094, the
expiration of the term of UtiliCorp Capital, (ii) upon the bankruptcy of the
General Partner, (iii) upon the assignment by the General Partner of its entire
interest in UtiliCorp Capital when the assignee is not admitted to UtiliCorp
Capital as a general partner of UtiliCorp Capital in accordance with the Limited
Partnership Agreement, or the filing of a certificate of dissolution or its
equivalent with respect to the General Partner, or the revocation of the General
Partner's charter and the expiration of 90 days after the date of notice to the
General Partner of revocation without a reinstatement of its charter, or any
other event occurs which causes the General Partner to cease to be a general
partner of UtiliCorp Capital under the Partnership Act, unless the business of
UtiliCorp Capital is continued in accordance with the Partnership Act, (iv) in
accordance with the provisions of the Limited Partnership Agreement and the
Series A Preferred Securities, (v) upon the entry of a decree of a judicial
dissolution or (vi) upon the written consent of all partners of UtiliCorp
Capital.
MERGER, CONSOLIDATION OR AMALGAMATION OF UTILICORP CAPITAL
UtiliCorp Capital shall not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. UtiliCorp may, without the consent of any person, including the
holders of the Preferred Securities, cause UtiliCorp Capital to consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets substantially as an entirety to, a limited partnership
or a trust (including a business trust) organized as such under the laws of any
state of the United States of America; provided, that (i) such successor entity
either (x) expressly assumes all of the obligations of UtiliCorp Capital with
respect to the Preferred Securities (with such changes as are appropriate to
reflect the legal status of such successor entity as a trust in the case that
such successor entity is a trust) or (y) substitutes for the Preferred
Securities other securities (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in the profits and
dividends or in the assets of the successor entity, at least as high as the
Preferred Securities rank with respect to participation in the profits and
dividends or in the assets of UtiliCorp Capital, (ii) UtiliCorp expressly
acknowledges such successor entity as the holder of the Junior Subordinated
Debentures, (iii) the Preferred Securities or the Successor Securities are
listed, or will be listed on notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities or the
Successor Securities to be downgraded by any nationally recognized statistical
rating organization as that term is defined by the Securities and Exchange
Commission for purposes of Rule 436(g)(2) under the Securities Act of 1933, as
amended, (v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease
S-13
<PAGE>
does not adversely affect the material powers, preferences and other special
rights of holders of Preferred Securities or the Successor Securities in any
material respect under the documents governing the Preferred Securities or the
Successor Securities (a merger, consolidation, amalgamation with or into, or the
replacement by, or conveyance, transfer or lease to, a trust, together with such
changes as the General Partner determines are necessary or appropriate to
reflect such merger, consolidation, amalgamation with or into, replacement by,
or conveyance, transfer or lease to, a trust not being deemed for this purpose
as having any adverse effect on the material powers, preferences and other
special rights of the holders of the Preferred Securities or the Successor
Securities in any material respect), (vi) such successor entity has a purpose
substantially identical to that of UtiliCorp Capital (with such changes as are
necessary or appropriate to reflect the legal status of such successor entity as
a trust in the case that such successor entity is a trust) and (vii) prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, UtiliCorp has received an opinion of nationally recognized independent
counsel to UtiliCorp Capital experienced in such matters to the effect that (x)
such successor entity will be treated as either a partnership or a grantor trust
for federal income tax purposes (y) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, UtiliCorp and such
successor entity will be in compliance with the 1940 Act without registering
thereunder as an investment company, and (z) such merger, consolidation
amalgamation, replacement, conveyance, transfer or lease will not cause the
holders of the Preferred Securities or the Successor Securities to be generally
liable for the debts, obligations or liabilities of UtiliCorp Capital or the
successor entity; provided, however, that if such successor entity is a trust,
such merger, consolidation, amalgamation with or into, replacement by, or
conveyance, transfer or lease to, such trust will be effective only on the last
record date for the payment of dividends on the Preferred Securities in any
year. Without limiting the generality of the foregoing, and notwithstanding any
other provision of the Limited Partnership Agreement, subject to the
satisfaction of the foregoing conditions, UtiliCorp may, without the consent of
any person, including the holders of the Preferred Securities, (i) form or cause
to be formed a successor entity and contribute or cause to be contributed the
Junior Subordinated Debentures (and any rights to receive interest payments on
such Subordinated Debentures) to the successor entity in exchange for all of the
equity or beneficial interests in the successor entity, and (ii) dissolve
UtiliCorp Capital and, after satisfaction of liabilities to creditors as
required by the Partnership Act, cause the equity or beneficial interests in the
successor entity to be distributed to UtiliCorp and the holders of each series
of Preferred Securities in liquidation of such holders' respective interests in
UtiliCorp Capital. UtiliCorp Capital may, without the consent of any person,
including holders of the Preferred Securities, take any other action having
similar consequences to the foregoing. Notwithstanding any other provision of
the Limited Partnership Agreement, in the event that UtiliCorp Capital is
replaced by, or conveys, transfers or leases its properties and assets
substantially as an entirety to a limited partnership or a trust as permitted by
the foregoing, UtiliCorp Capital shall be discharged of all responsibilities to
holders of the Preferred Securities under the Limited Partnership Agreement and
the Preferred Securities and the holders of the Preferred Securities shall cease
to be limited partners of UtiliCorp Capital and shall cease to have an interest
in UtiliCorp Capital.
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" in the accompanying Prospectus and as otherwise
required by law and the Limited Partnership Agreement, the holders of the Series
A Preferred Securities will have no voting rights.
If (i) UtiliCorp Capital fails to pay dividends in full on the Series A
Preferred Securities for 18 consecutive monthly dividend periods; (ii) an Event
of Default (as defined in the Indenture) occurs and is continuing on the Series
A Junior Subordinated Debentures; or (iii) UtiliCorp is in default on any of its
payment or other obligations under the Guarantee (as described under
"Description of the Guarantee -- Certain Covenants of UtiliCorp" in the
accompanying Prospectus), then the holders of the Series A Preferred Securities,
together with the holders of any other series of Preferred Securities having the
right to vote for the appointment of a special representative of UtiliCorp
Capital and the limited partners (a "Special Representative") in such event,
acting as a single class, will be entitled by the majority vote of such holders
to appoint and authorize a Special Representative to enforce UtiliCorp Capital's
creditor rights under the Series A Junior Subordinated Debentures, to enforce
the rights of the holders of the Series A Preferred Securities under the
Guarantee and to enforce the rights of the holders of the Series A
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Preferred Securities to receive dividends on the Series A Preferred Securities.
The Special Representative shall not, by virtue of acting in such capacity, be
admitted as a general partner in UtiliCorp Capital or otherwise be deemed to be
a general partner in UtiliCorp Capital and shall have no liability for the
debts, obligations or liabilities of UtiliCorp Capital. For purposes of
determining whether UtiliCorp Capital has failed to pay dividends in full for 18
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are paid with respect to all monthly
dividend periods terminating on or prior to the date of payment of such full
cumulative dividends. Not later than 30 days after such right to appoint a
Special Representative arises, the General Partner will convene a meeting for
the purpose of appointing a Special Representative. If the General Partner fails
to convene such meeting within such 30-day period, the holders of 10% in
liquidation preference of the outstanding Preferred Securities will be entitled
to convene such meeting. The provisions of the Limited Partnership Agreement
relating to the convening and conduct of the meetings of the partners will apply
with respect to any such meeting. Any Special Representative so appointed shall
cease to be a Special Representative of UtiliCorp Capital and the limited
partners if UtiliCorp Capital (or UtiliCorp pursuant to the Guarantee) shall
have paid in full all accrued and unpaid dividends on the Preferred Securities
or such default or breach, as the case may be, shall have been cured, and
UtiliCorp, in its capacity as the General Partner shall continue the business of
UtiliCorp Capital without dissolution. Notwithstanding the appointment of any
such Special Representative, UtiliCorp shall continue as General Partner and
shall retain all rights under the Indenture, including the right to extend the
interest payment period from time to time to a period not exceeding 60
consecutive months as provided under "Description of the Series A Junior
Subordinated Debentures -- Option to Extend Interest Payment Period".
If any proposed amendment to the Limited Partnership Agreement provides for,
or the General Partner otherwise proposes to effect, (i) any action which would
adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to the Limited Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any limited partner interests in UtiliCorp Capital ranking, as to
participation in the profits and dividends or in the assets of UtiliCorp
Capital, senior to the Series A Preferred Securities), or (ii) the dissolution,
winding-up or termination of UtiliCorp Capital, other than (x) in connection
with the distribution of Series A Junior Subordinated Debentures upon the
occurrence of a Special Event or (y) as described under "Merger, Consolidation
or Amalgamation of UtiliCorp Capital" above, then the holders of outstanding
Series A Preferred Securities will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other holders of series of Preferred Securities similarly
affected, and such amendment or proposal shall not be effective except with the
approval of the holders of 66 2/3% in liquidation preference of such outstanding
Preferred Securities having a right to vote on the matter; provided, however,
that no such approval shall be required if the dissolution, winding-up or
termination of UtiliCorp Capital is proposed or initiated pursuant to the
Limited Partnership Agreement or upon the initiation of proceedings, or after
proceedings have been initiated, for the dissolution, winding-up, liquidation or
termination of UtiliCorp.
The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation of, any further limited partner interests of UtiliCorp
Capital ranking PARI PASSU with the Series A Preferred Securities with regard to
participation in the profits and dividends or in the assets of UtiliCorp
Capital. Holders of Series A Preferred Securities have no preemptive rights.
So long as any Series A Junior Subordinated Debentures are held by UtiliCorp
Capital, the General Partner shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or executing
any trust or power conferred on the Trustee with respect to such series, (ii)
waive any past default which is waivable under Section [6.06] of the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Series A Junior Subordinated Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture, where
such consent shall be required, without, in each case, obtaining the prior
approval of the holders of at least 66 2/3% in liquidation preference of all
series of Preferred Securities affected thereby, acting as a single class;
provided, however, that where a consent under the Indenture would require the
consent of each holder affected thereby, no such consent shall be given by the
General
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Partner without the prior consent of each holder of all series of Preferred
Securities affected thereby. The General Partner shall not revoke any action
previously authorized or approved by a vote of any series of Preferred
Securities. The General Partner shall notify all holders of the Series A
Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Junior Subordinated Debentures.
Any required approval of holders of Series A Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the partners in UtiliCorp Capital or pursuant to
written consent. UtiliCorp Capital will cause a notice of any meeting at which
holders of Series A Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Series A Preferred Securities. Each such
notice will include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of Series A Preferred Securities will be
required for UtiliCorp Capital to redeem and cancel Series A Preferred
Securities in accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any other series of Preferred Securities that
are entitled to vote or consent with such Series A Preferred Securities as a
single class at such time that are owned by UtiliCorp or any entity owned more
than 50% by UtiliCorp, either directly or indirectly, shall not be entitled to
vote or consent and shall, for purposes of such vote or consent, be treated as
if they were not outstanding.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as securities depository for the Series A Preferred Securities.
The Series A Preferred Securities will be issued only as fully-registered
securities registered in the name of Cede & Co. (DTC's nominee). One or more
fully-registered global Series A Preferred Security certificates will be issued,
representing in the aggregate the total number of Series A Preferred Securities,
and will be deposited with DTC.
DTC 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 the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, Inc. (the "New York
Stock Exchange"), the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not
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receive written confirmation from DTC of their purchases, but Beneficial Owners
are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owners purchased Series A
Preferred Securities. Transfers of ownership interests in the Series A Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Series A Preferred
Securities, except in the event that use of the book-entry system for the Series
A Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Series A
Preferred Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Series A Preferred Securities are credited,
which may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will itself consent or vote with respect to Series A Preferred Securities. Under
its usual procedures, DTC would mail an Omnibus Proxy to UtiliCorp Capital as
soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Series A Preferred Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, UtiliCorp Capital or UtiliCorp, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of dividends to DTC is the responsibility of UtiliCorp Capital,
disbursement of such payments to Direct Participants is the responsibility of
DTC, and disbursement of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to UtiliCorp Capital. Under such circumstances, in the event that a
successor securities depository is not obtained, Series A Preferred Security
certificates are required to be printed and delivered. Additionally, UtiliCorp
Capital (with the consent of UtiliCorp) may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depository). In that
event, certificates for the Series A Preferred Securities will be printed and
delivered. In each of the above circumstances, the General Partner will appoint
a paying agent with respect to the Series A Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that UtiliCorp Capital believes to be reliable,
but UtiliCorp Capital takes no responsibility for the accuracy thereof.
REGISTRAR AND TRANSFER AGENT
UMB Bank, N.A. will act as registrar and transfer agent for the Series A
Preferred Securities.
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Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of UtiliCorp Capital, but upon payment (with the
giving of such indemnity as UtiliCorp Capital or UtiliCorp may require) in
respect of any tax or other government charges which may be imposed in relation
to it.
UtiliCorp Capital will not be required to register or cause to be registered
the transfer of Series A Preferred Securities after such Series A Preferred
Securities have been called for redemption.
MISCELLANEOUS
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange.
The General Partner is authorized and directed to conduct its affairs and to
operate UtiliCorp Capital in such a way that UtiliCorp Capital will not be
deemed to be an "investment company" required to be registered under the 1940
Act or taxed as a corporation for federal income tax purposes and so that the
Series A Junior Subordinated Debentures will be treated as indebtedness of
UtiliCorp for federal income tax purposes. In this connection, the General
Partner is authorized to take any action, not inconsistent with applicable law,
the certificate of limited partnership or the Limited Partnership Agreement,
that the General Partner determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect
the interests of the holders of the Series A Preferred Securities.
DESCRIPTION OF THE SERIES A JUNIOR SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of the Series A
Junior Subordinated Debentures in which UtiliCorp Capital will invest with the
proceeds of the issuance and sale of the Series A Preferred Securities. This
description supplements the description of the general terms and provisions of
the Junior Subordinated Debentures set forth in the accompanying Prospectus
under the caption "Description of the Junior Subordinated Debentures". The
following description does not purport to be complete and is qualified in its
entirety by reference to the description in the accompanying Prospectus and the
Indenture, dated as of , 1995, between UtiliCorp and UMB Bank, N.A.,
as Trustee, as supplemented and amended by a First Supplemental Indenture, dated
as of , 1995 (the Indenture, as so supplemented and amended, is
hereinafter referred to as the "Indenture").
Under certain circumstances involving the dissolution of UtiliCorp Capital
following the occurrence of a Special Event, Series A Junior Subordinated
Debentures may be distributed to the holders of the Series A Preferred
Securities in liquidation of UtiliCorp Capital. See "Description of the Series A
Preferred Securities -- Special Event Redemption or Distribution".
GENERAL
The Series A Junior Subordinated Debentures will be issued as a series of
Junior Subordinated Debentures under the Indenture. The Series A Junior
Subordinated Debentures will be unlimited in aggregate principal amount.
The entire principal amount of the Series A Junior Subordinated Debentures
will become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest (as hereinafter defined), if any, on
, 2025, subject to exchange or relending under conditions described
under "Description of the Series A Preferred Securities -- Mandatory
Redemption".
The Series A Junior Subordinated Debentures if distributed to holders of
Series A Preferred Securities in dissolution will initially be so issued as a
Global Security (as defined below). As described herein, under certain limited
circumstances Series A Junior Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "-- Book-Entry and
Settlement" below. In the event that Series A Junior Subordinated Debentures are
issued in certificated form, such Series A Junior Subordinated Debentures will
be in denominations of $25 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Series A Junior Subordinated Debentures issued as a Global
Security will be made to DTC, as the depository for the Series A Junior
Subordinated Debentures. In the event Series A Junior
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Subordinated Debentures are issued in certificated form, principal and interest
will be payable, the transfer of the Series A Junior Subordinated Debentures
will be registrable and Series A Junior Subordinated Debentures will be
exchangeable for Series A Junior Subordinated Debentures of other denominations
of a like aggregate principal amount at the corporate trust office of the
Trustee in The City of New York; provided, that payment of interest may be made
at the option of UtiliCorp by check mailed to the address of the persons
entitled thereto.
If the Series A Junior Subordinated Debentures are distributed to the
holders of Series A Preferred Securities upon the dissolution of UtiliCorp
Capital, UtiliCorp will use its best efforts to list the Series A Junior
Subordinated Debentures on the New York Stock Exchange or on such other exchange
as the Series A Preferred Securities are then listed and traded on the same part
of any such exchange.
MANDATORY PREPAYMENT
If UtiliCorp Capital redeems Series A Preferred Securities in accordance
with the terms thereof, the Series A Junior Subordinated Debentures will become
due and payable in a principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so redeemed, together with any
accrued and unpaid interest, including Additional Interest (as defined below),
if any. Any payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such other time on
such earlier date as the parties thereto shall agree.
OPTIONAL REDEMPTION
If there shall be no Series A Preferred Securities outstanding, UtiliCorp
shall have the right to redeem the Series A Junior Subordinated Debentures, in
whole or in part, from time to time, on or after , 2000, upon not
less than 30 nor more than 60 days' notice, at a redemption price equal to 100%
of the principal amount to be redeemed plus any accrued and unpaid interest,
including Additional Interest, if any, to the redemption date.
INTEREST
Each Series A Junior Subordinated Debenture will bear interest at the rate
of % per annum from the original date of issuance, payable monthly in arrears
on the last day of each calendar month of each year (each, an "Interest Payment
Date"), commencing , 1995, to the person in whose name such Series A
Junior Subordinated Debenture is registered, subject to certain exceptions, at
the close of business on the Business Day next preceding such Interest Payment
Date. In the event the Series A Junior Subordinated Debentures shall not
continue to remain in book-entry-only form, UtiliCorp shall have the right to
select record dates which shall be more than one Business Day prior to the
Interest Payment Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Junior Subordinated Debentures is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
UtiliCorp shall have the right at any time during the term of the Series A
Junior Subordinated Debentures to extend the interest payment period from time
to time to a period not exceeding 60 consecutive months (the "Extension
Period"), at the end of which Extension Period UtiliCorp shall pay all interest
then accrued and unpaid (together with interest thereon at the rate specified
for the Series A Junior Subordinated Debentures to the extent permitted by
applicable law); provided, that, during any such Extension Period, UtiliCorp
shall not declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock. Prior to the
termination of any such
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Extension Period, UtiliCorp may further extend the interest payment period,
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed 60 consecutive months. Upon the termination of
any Extension Period and the payment of all amounts then due, UtiliCorp may
select a new Extension Period, subject to the above requirements. No interest
during an Extension Period, except at the end thereof, shall be due and payable.
If UtiliCorp Capital shall be the sole holder of the Series A Junior
Subordinated Debentures, UtiliCorp shall give UtiliCorp Capital notice of its
selection of such Extension Period one Business Day prior to the earlier of (i)
the date the dividends on the Series A Preferred Securities are payable or (ii)
the date UtiliCorp Capital is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Series A Preferred Securities of the record date or the date such dividend is
payable, but in any event not less than one Business Day prior to such record
date. UtiliCorp shall cause UtiliCorp Capital to give notice of UtiliCorp's
selection of such Extension Period to the holders of the Series A Preferred
Securities. If UtiliCorp Capital shall not be the sole holder of the Series A
Junior Subordinated Debentures, UtiliCorp shall give the holders of the Series A
Junior Subordinated Debentures notice of its selection of such Extension Period
ten Business Days prior to the earlier of (i) the Interest Payment Date or (ii)
the date UtiliCorp is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization, or to holders of the Series A
Junior Subordinated Debentures, of the record or payment date of such related
interest payment, but in any event not less than two Business Days prior to such
record date.
ADDITIONAL INTEREST
If at any time UtiliCorp Capital shall be required to pay any interest on
dividends in arrears in respect of the Series A Preferred Securities pursuant to
the terms thereof, then UtiliCorp will pay as interest to UtiliCorp Capital as
the holder of the Series A Junior Subordinated Debentures ("Additional
Interest") an amount equal to such interest on dividends in arrears. In
addition, if UtiliCorp Capital would be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, UtiliCorp also will pay as Additional Interest such amounts as shall
be required so that the net amounts received and retained by UtiliCorp Capital
after paying any such taxes, duties, assessments or governmental charges will be
not less than the amounts UtiliCorp Capital would have received had no such
taxes, duties, assessments or governmental charges been imposed.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, UtiliCorp shall
have the right to set-off any payment it is otherwise required to make
thereunder with and to the extent UtiliCorp has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case any Event of Default (as defined in the Indenture) shall occur
and be continuing, UtiliCorp Capital will have the right to declare the
principal of and the interest on the Series A Junior Subordinated Debentures
(including any Additional Interest) and any other amounts payable under the
Indenture to be forthwith due and payable and to enforce its other rights as a
creditor with respect to the Series A Junior Subordinated Debentures. See
"Enforcement of Certain Rights by Special Representative" below for a discussion
of certain rights available to holders of the Series A Preferred Securities upon
the occurrence of an Event of Default.
ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) UtiliCorp Capital fails to pay dividends in full on the Series A
Preferred Securities for 18 consecutive monthly dividend periods; (ii) an Event
of Default occurs and is continuing on the Series A Junior Subordinated
Debentures; or (iii) UtiliCorp is in default on any of its payment of other
obligations under the Guarantee, under the terms of the Series A Preferred
Securities, the holders of outstanding Series A Preferred Securities will have
the rights referred to under "Description of the Series A Preferred Securities
- -- Voting Rights", including the right to appoint a Special Representative,
which Special Representative shall be authorized to exercise UtiliCorp Capital's
right to accelerate the principal amount
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of the Series A Junior Subordinated Debentures and to enforce UtiliCorp
Capital's other creditor rights under the Series A Junior Subordinated
Debentures. Notwithstanding the appointment of any such Special Representative,
UtiliCorp shall continue as General Partner and shall retain all rights under
the Indenture, including the right to extend the interest payment period from
time to time to a period not exceeding 60 consecutive months.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of UtiliCorp Capital as a result of the occurrence of a
Special Event, the Series A Junior Subordinated Debentures will be issued in the
form of one or more global certificates (each, a "Global Security") registered
in the name of the nominee of DTC. Except under the limited circumstances
described below, Series A Junior Subordinated Debentures represented by the
Global Security will not be exchangeable for, and will not otherwise be issuable
as, Series A Junior Subordinated Debentures in definitive form. The Global
Securities described above may not be transferred except by DTC to a nominee of
DTC or by a nominee of DTC to DTC or another nominee of DTC or to a successor
depository or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A Junior
Subordinated Debentures in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Junior Subordinated
Debentures shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of DTC or its nominee or to
a successor depository or its nominee. Accordingly, each beneficial owner must
rely on the procedures of DTC and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a Holder under the Indenture.
THE DEPOSITORY. For a description of DTC and the specific terms of the
depository arrangements, see "Description of the Series A Preferred Securities
- -- Book-Entry-Only Issuance -- The Depository Trust Company". As of the date of
this Prospectus Supplement, the description therein of DTC's book-entry system
and DTC's practices as they relate to purchases, transfers, notices and payments
with respect to the Series A Preferred Securities apply in all material respects
to any debt obligations represented by one or more Global Securities held by
DTC.
Neither UtiliCorp, the Trustee, any paying agent nor any other agent of
UtiliCorp or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Series A Junior Subordinated
Debentures or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITORY'S SERVICES. A Global Security shall be
exchangeable for Series A Junior Subordinated Debentures registered in the names
of the persons other than DTC or its nominee only if (i) DTC notifies UtiliCorp
that it is unwilling or unable to continue as a depository for such Global
Security and no successor depository shall have been appointed, 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 to act as such depository, (ii)
UtiliCorp in its sole discretion determines that such Global Security shall be
so exchangeable or (iii) there shall have occurred an Event of Default with
respect to such Series A Junior Subordinated Debentures. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for Series A Junior Subordinated Debentures registered in such names as the
Depository shall direct. It is expected that such instructions will be based
upon directions received by the Depository from its Participants with respect to
ownership of beneficial interests in such Global Security.
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MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Junior Subordinated Debentures held by UtiliCorp Capital, see
"Description of the Series A Preferred Securities -- Voting Rights".
EFFECT OF OBLIGATIONS UNDER THE
SERIES A JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
As set forth in the Limited Partnership Agreement, the sole purpose of
UtiliCorp Capital is to issue partnership interests in UtiliCorp Capital,
including, without limitation, the Series A Preferred Securities, and to use the
proceeds thereof to purchase the Series A Junior Subordinated Debentures or
other similar debt instruments of UtiliCorp.
As long as payments of interest and other payments are made when due on the
Series A Junior Subordinated Debentures, such payments will be sufficient to
cover dividends and payments due on the Series A Preferred Securities primarily
because (i) the aggregate principal amount of Series A Junior Subordinated
Debentures to be held by UtiliCorp Capital will be at least as great as the
aggregate stated liquidation preference of the Series A Preferred Securities;
(ii) the interest rate and interest and other payment dates on the Series A
Junior Subordinated Debentures will match the dividend rate and dividend and
other payment dates for the Series A Preferred Securities; (iii) the Limited
Partnership Agreement provides that UtiliCorp, as General Partner, shall pay
(without any obligation to first exhaust the assets of UtiliCorp Capital) for
costs and expenses of UtiliCorp Capital; (iv) the Limited Partnership Agreement
further provides that the General Partner shall not cause or permit UtiliCorp
Capital to, among other things, engage in any activity that is not consistent
with the purposes of UtiliCorp Capital. UtiliCorp Capital may lend to UtiliCorp
an amount up to the amount of UtiliCorp's capital contribution to UtiliCorp
Capital so long as such loan matures no later than, and is not subordinate in
interest to, the Junior Subordinated Debentures to which such capital
contribution relates.
If UtiliCorp fails to make interest or other payments on the Series A Junior
Subordinated Debentures when due, the Limited Partnership Agreement provides a
mechanism whereby the holders of the Series A Preferred Securities may appoint a
Special Representative to enforce the rights of UtiliCorp Capital under the
Series A Junior Subordinated Debentures. Payments of dividends and other
payments due on the Series A Preferred Securities out of moneys held by
UtiliCorp Capital are guaranteed by UtiliCorp to the extent set forth under
"Description of the Guarantee" in the accompanying Prospectus. The Limited
Partnership Agreement also provides, and UtiliCorp, under the Guarantee,
acknowledges, that a Special Representative may be appointed to enforce the
Guarantee if UtiliCorp is in default on any of its payment obligations under the
Guarantee. In addition, if the General Partner or the Special Representative
fails to enforce the Guarantee, a holder of a Series A Preferred Security may
institute a legal proceeding directly against UtiliCorp to enforce its rights
under the Guarantee without first instituting a legal proceeding against
UtiliCorp Capital or any other person or entity.
UtiliCorp and UtiliCorp Capital believe that the above mechanisms and
obligations, taken together, are equivalent to a full and unconditional
guarantee by UtiliCorp of payments due on the Series A Preferred Securities.
UNITED STATES TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Blackwell Sanders Matheny
Weary & Lombardi L.C., special tax counsel to UtiliCorp and UtiliCorp Capital,
insofar as it relates to matters of law and legal conclusions. This section is
based upon current provisions of the Internal Revenue Code of 1986, as amended
(the "Code"), existing and proposed
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regulations thereunder and current administrative rulings and court decisions,
all of which are subject to change. Subsequent changes may cause tax
consequences to vary substantially from the consequences described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion focuses on holders of Series A
Preferred Securities who are individual citizens or residents of the United
States that hold the Series A Preferred Securities as a capital asset and has
only limited application to corporations, estates, trusts or non-resident
aliens. Accordingly, each prospective purchaser of Series A Preferred Securities
should consult, and should depend on, his or her own tax advisor in analyzing
the federal, state, local and foreign tax consequences of the purchase,
ownership or disposition of Series A Preferred Securities.
INCOME FROM SERIES A PREFERRED SECURITIES
In the opinion of Blackwell Sanders Matheny Weary & Lombardi L.C., UtiliCorp
Capital will be a partnership for federal income tax purposes. Accordingly, each
holder of Series A Preferred Securities (a "Preferred Securityholder") will be
required to include in gross income the Preferred Securityholder's distributive
share of the net income of UtiliCorp Capital. If UtiliCorp Capital is merged
into a trust that is treated as a grantor trust, each Preferred Securityholder
will be treated as owning directly an allocable portion of the Series A Junior
Subordinated Debentures and as earning directly the income derived therefrom. In
either case, such income will not exceed for any calendar month the dividends
with respect to that month received on such Series A Preferred Securities,
except in limited circumstances as described below under "Potential Extension of
Interest Payment Period". No portion of such income will be eligible for the
dividends received deduction.
DISPOSITION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities,
including a redemption for cash, equal to the difference between the amount
realized and the Preferred Securityholder's tax basis for the Series A Preferred
Securities sold. Gain or loss recognized by a Preferred Securityholder on the
sale or exchange of a Series A Preferred Security held for more than one year
will generally be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF UTILICORP
CAPITAL
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Special Event Redemption or Distribution",
Series A Junior Subordinated Debentures may be distributed to the holders of the
Series A Preferred Securities in liquidation of UtiliCorp Capital. Under current
United States federal income tax law, such a distribution would be treated as a
non-taxable exchange to each holder of Series A Preferred Securities and would
result in the holder of Series A Preferred Securities receiving an aggregate tax
basis in the Series A Junior Subordinated Debentures equal to such holder's
aggregate tax basis in its Series A Preferred Securities. A holder's holding
period in the Series A Junior Subordinated Debentures so received in liquidation
of UtiliCorp Capital would include the period for which the Series A Preferred
Securities were held by such holder. In addition, a merger of UtiliCorp Capital
into, or the replacement of UtiliCorp Capital by, a trust that is treated as a
grantor trust would be treated in the same manner as a distribution of the
Series A Junior Subordinated Debentures to the holders of the Series A Preferred
Securities in liquidation of UtiliCorp Capital, followed by a contribution of
such Series A Junior Subordinated Debentures to the grantor trust. Under a
change in law, a change in legal interpretation or the other circumstances
giving rise to a Special Event, however, the dissolution could be a taxable
event to holders of the Series A Preferred Securities. In the judgment of
special tax counsel to UtiliCorp and UtiliCorp Capital, the series of events
which would result in the recognition of taxable gain by holders of the Series A
Preferred Securities, by reason of a dissolution of UtiliCorp Capital in
response to a Special Event, is unlikely to occur. There can be no assurance in
this regard, however.
S-23
<PAGE>
UTILICORP CAPITAL INFORMATION RETURNS AND AUDIT PROCEDURES
UtiliCorp, as the General Partner in UtiliCorp Capital, will furnish each
Series A Preferred Securityholder with a Schedule K-1 each year setting forth
such Series A Preferred Securityholder's allocable share of income for the prior
calendar year. UtiliCorp is required to furnish such Schedule K-1 as soon as
practicable following the end of the year, but in any event prior to March 31.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to UtiliCorp Capital (a) the name, address and
taxpayer identification number of the beneficial owner and the nominee; (b)
information as to whether the beneficial owner is (i) a person that is not a
United States person, (ii) a foreign government, an international organization
or any wholly-owned agency or instrumentality of either of the foregoing, or
(iii) a tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for their own accounts. A penalty of $50 per failure
(up to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to UtiliCorp Capital. The nominee is required
to supply the beneficial owners of the Series A Preferred Securities with the
information furnished to UtiliCorp Capital.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
Under the Indenture, UtiliCorp has the right to extend from time to time the
interest payment period on the Series A Junior Subordinated Debentures to a
period not exceeding 60 consecutive months. In the event that the interest
payment period is extended, UtiliCorp Capital will continue to accrue income
equal to the amount of the interest payment due at the end of the Extension
Period, on an economic basis over the length of the Extension Period.
Accrued income of UtiliCorp Capital will be allocated, but not distributed,
to holders of record on the Business Day preceding the last day of each calendar
month. As a result, holders of record during an Extension Period will include
interest in gross income in advance of the receipt of cash, and any such holders
who dispose of Series A Preferred Securities prior to the record date for the
payment of dividends following such Extension Period will include interest in
gross income but will not receive any cash related thereto from UtiliCorp
Capital. Similarly, holders of Series A Junior Subordinated Debentures received
upon a liquidation of UtiliCorp Capital or deemed to be owned by the Preferred
Securityholder upon merger of UtiliCorp Capital into a trust that is taxed as a
grantor trust, will include in income, interest on the Series A Junior
Subordinated Debentures as the interest accrues (regardless of the method of
accounting otherwise used), and thus will also recognize income in advance of
the receipt of cash. The tax basis of a Series A Preferred Security will be
increased by the amount of any interest that is included in income without a
receipt of cash, and will be decreased again when and if such cash is
subsequently received from UtiliCorp Capital.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
holder who or which is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of a Series A
Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) Payments by UtiliCorp Capital or any of its paying agents to any
holder of a Series A Preferred Security who or which is a United States
Alien Holder will not be subject to United States federal withholding tax
provided that (a) the beneficial owner of the Series A Preferred Security
does not actually or constructively own 10%, or more of the total combined
voting power of all classes of
S-24
<PAGE>
capital stock of UtiliCorp entitled to vote, (b) the beneficial owner of the
Series A Preferred Security is not a controlled foreign corporation that is
related to UtiliCorp through stock ownership and (c) either (x) the
beneficial owner of the Series A Preferred Security certifies to UtiliCorp
Capital or its agent, under penalties of perjury, that it is a United States
Alien Holder and provides its name and address or (y) the holder of the
Series A Preferred Security is a securities clearing organization, bank or
other financial institution that holds customers' securities in the ordinary
course of its trade or business ( a "financial institution"), and such
holder certifies to UtiliCorp Capital or its agent under penalties of
perjury that such statement has been received from the beneficial owner by
it or by a financial institution between it and the beneficial owner and
furnishes UtiliCorp Capital or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security will
generally not be subject to United States federal withholding tax on any
gain realized on the sale or exchange of a Series A Preferred Security
unless such a holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States or
certain other requirements are met.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder fails to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
S-25
<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, UtiliCorp
Capital has agreed to sell to each of the Underwriters named below, and each of
the Underwriters, for whom Goldman, Sachs & Co., Smith Barney Inc., Dean Witter
Reynolds Inc. and PaineWebber Incorporated, are acting as Representatives, has
severally agreed to purchase from UtiliCorp Capital the respective number of
Series A Preferred Securities set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF SERIES A
UNDERWRITER PREFERRED SECURITIES
- -------------------------------------------------------------- --------------------
<S> <C>
Goldman, Sachs & Co...........................................
Smith Barney Inc..............................................
Dean Witter Reynolds Inc......................................
PaineWebber Incorporated......................................
--------
Total.....................................................
--------
--------
</TABLE>
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers and
dealers. After the Series A Preferred Securities are released for sale to the
public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be used to purchase the Series A Junior Subordinated
Debentures, the Underwriting Agreement provides that UtiliCorp will pay as
compensation ("Underwriters' Compensation"), for the Underwriters' arranging the
investment therein of such proceeds, an amount in New York Clearing House (next
day) funds of $ per Series A Preferred Security ($ per Series A
Preferred Security sold to certain institutions) for the accounts of the several
Underwriters.
UtiliCorp and UtiliCorp Capital have agreed, during the period beginning
from the date of the Underwriting Agreement and continuing to and including the
earlier of (i) the date, after the closing date, on which the distribution of
the Series A Preferred Securities and the Guarantee ceases, as determined by the
Underwriters, or (ii) 90 days after the closing date, not to offer, sell,
contract to sell, or otherwise dispose of any Series A Preferred Securities or
any preferred or any other securities of UtiliCorp Capital or UtiliCorp which
are substantially similar to the Series A Preferred Securities including the
Guarantee, or any securities convertible into or exchangeable for Series A
Preferred Securities, preferred stock or such substantially similar securities
of either UtiliCorp Capital or UtiliCorp, without the prior written consent of
the Underwriters.
In compliance with Section 34 of the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. ("NASD"), no sales of the Series A
Preferred Securities may be made by any NASD member to a discretionary account
without the prior written approval of the transaction by the customer.
Prior to this offering, there has been no public market for the Series A
Preferred Securities. In order to meet one of the requirements for listing the
Series A Preferred Securities on the New York Stock Exchange, the Underwriters
will undertake to sell lots of 100 or more Series A Preferred Securities to a
minimum of 400 beneficial holders. Trading of the Series A Preferred Securities
on the New York Stock Exchange is expected to commence within the seven-day
period after the initial delivery of the Series A Preferred Securities. The
Representatives have advised UtiliCorp that they intend to make a market in the
Series A Preferred Securities prior to commencement of trading on the New York
Stock Exchange, but are not obligated to do so and may discontinue any such
market making at any time without notice.
UtiliCorp Capital and UtiliCorp have agreed to indemnify the Underwriters
against certain liabilities, including liabilities under the Securities Act of
1933, as amended.
S-26
<PAGE>
Certain of the Underwriters engage in transactions with, and from time to
time have performed services for, UtiliCorp and its subsidiaries in the ordinary
course of business.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Series A
Preferred Securities, the validity of the Limited Partnership Agreement and the
formation of UtiliCorp Capital are being passed upon by Richards, Layton &
Finger, P.A., special Delaware counsel to UtiliCorp and UtiliCorp Capital. The
validity of the Indenture, the Guarantee and the Series A Junior Subordinated
Debentures will be passed upon on behalf of UtiliCorp and UtiliCorp Capital by
Blackwell Sanders Matheny Weary & Lombardi L.C., and on behalf of the
Underwriters by Milbank, Tweed, Hadley & McCloy, counsel to the Underwriters.
Blackwell Sanders Matheny Weary & Lombardi L.C. will rely on Richards, Layton &
Finger, P.A. as to certain matters of Delaware law. Statements as to United
States taxation in the Prospectus Supplement in the second paragraph under the
caption "Investment Considerations -- Special Event Redemption or Distribution",
and under the caption "United States Taxation", have been passed upon for
UtiliCorp and UtiliCorp Capital by Blackwell Sanders Matheny Weary & Lombardi
L.C., special tax counsel to UtiliCorp Capital and UtiliCorp, and are stated
herein on their authority.
S-27
<PAGE>
UTILICORP CAPITAL L.P.
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT THE ISSUER HAS FUNDS AS SET FORTH HEREIN BY
UTILICORP UNITED INC.
------------------------
UtiliCorp Capital L.P. ("UtiliCorp Capital"), a Delaware special purpose
limited partnership in which UtiliCorp United Inc. ("UtiliCorp" or the
"Company"), a Delaware corporation, is the general partner, may offer, from time
to time, its preferred securities, representing limited partner interests (the
"Preferred Securities"), in one or more series. The payment of periodic cash
distributions ("dividends") with respect to Preferred Securities of any series,
out of moneys held by UtiliCorp Capital, and payments on liquidation or
redemption with respect to the Preferred Securities are guaranteed by UtiliCorp
to the extent described herein (the "Guarantee"). UtiliCorp's obligations under
the Guarantee are subordinate and junior in right of payment to all other
liabilities of UtiliCorp and PARI PASSU with the most senior preferred stock
issued by UtiliCorp. Junior Subordinated Debentures of UtiliCorp ("Junior
Subordinated Debentures") also may be issued and sold from time to time in one
or more series by UtiliCorp to UtiliCorp Capital in connection with the
investment of the proceeds from the offering of Preferred Securities. The Junior
Subordinated Debentures when issued will be unsecured and subordinate and junior
in right of payment to Senior Indebtedness (as defined herein) of UtiliCorp. The
Junior Subordinated Debentures subsequently may be distributed pro rata to
holders of Preferred Securities in connection with the dissolution of UtiliCorp
Capital upon the occurrence of certain events as may be described in an
accompanying Prospectus Supplement (the "Prospectus Supplement").
The Preferred Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Preferred Securities shall not exceed
$100,000,000. Certain specific terms of Preferred Securities of any series in
respect of which this Prospectus is being delivered will be set forth in the
Prospectus Supplement with respect to such series, including the specific
designation, the aggregate amount, dividend rate (or the method of determining
such rate), dates on which dividends will be payable, liquidation preference,
voting rights, redemption provisions, terms for any conversion or exchange into
other securities, the initial public offering price and any other rights,
preferences, privileges, limitations and restrictions.
The Prospectus Supplement will contain information concerning certain United
States federal income tax considerations, if applicable to the Preferred
Securities offered.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Preferred Securities will be sold directly, through agents, underwriters
or dealers as designated from time to time, or through a combination of such
methods. If agents of UtiliCorp or any dealers or underwriters are involved in
the sale of the Preferred Securities in respect of which this Prospectus is
being delivered, the names of such agents, dealers or underwriters and any
applicable commissions or discounts will be set forth in or may be calculated
from the Prospectus Supplement with respect to such Preferred Securities.
THE DATE OF THIS PROSPECTUS IS , 1995.
<PAGE>
AVAILABLE INFORMATION
UtiliCorp is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Office of
the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and
at the following Regional Offices of the Commission: 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material may be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Such reports, proxy statements and other information may also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, and the Pacific Stock Exchange, 301 Pine Street, San
Francisco, California 94104.
No separate financial statements of UtiliCorp Capital have been included
herein. UtiliCorp and UtiliCorp Capital do not consider that such financial
statements would be material to holders of Preferred Securities because
UtiliCorp Capital is a newly formed special purpose entity, has no operating
history, has no independent operations and is not engaged in, and does not
propose to engage in, any activity other than as set forth below. UtiliCorp
Capital is a limited partnership formed under the laws of the State of Delaware.
UtiliCorp is the sole general partner in UtiliCorp Capital and, as of the date
hereof, directly or indirectly beneficially owns all of UtiliCorp Capital's
partnership interests. See "UtiliCorp Capital".
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by UtiliCorp with the Commission pursuant to
the Exchange Act are incorporated in this Prospectus by reference:
(a) UtiliCorp's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994; and
(b) UtiliCorp's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995.
All documents filed by UtiliCorp pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein or in any
subsequently filed document which is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
UtiliCorp hereby undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, on the written or oral request of
any such person, a copy of any or all of the documents referred to above which
have been or may be incorporated in this Prospectus by reference, other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents. Such requests should be directed to Mr. Dale J.
Wolf, Vice President, Finance, Treasurer and Corporate Secretary, UtiliCorp
United Inc., 911 Main, P.O. Box 13287, Kansas City, Missouri 64199-3287,
telephone number (816) 421-6600.
2
<PAGE>
UTILICORP CAPITAL L.P.
UtiliCorp Capital is a limited partnership formed under the laws of the
State of Delaware. UtiliCorp Capital exists for the sole purpose of issuing its
partnership interests and investing the net proceeds thereof in Junior
Subordinated Debentures and investing the proceeds of all capital contributions
by its General Partner (as defined below) in specified investments. All of its
partnership interests, as of the date hereof, are beneficially owned, directly
or indirectly, by UtiliCorp. UtiliCorp is the sole general partner in UtiliCorp
Capital (the "General Partner"). UCU Finance Corp., a Delaware corporation and
wholly-owned subsidiary of UtiliCorp ("UCU Finance"), is, as of the date hereof,
the sole limited partner in UtiliCorp Capital. Upon the issuance of Preferred
Securities, which securities represent limited partner interests in UtiliCorp
Capital, UCU Finance will remain as a limited partner but will have no interest
in the profits and dividends or the assets of UtiliCorp Capital. UtiliCorp
Capital has a term of approximately 99 years, unless earlier dissolved.
UtiliCorp Capital's registered office in the State of Delaware is c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801, telephone: (302) 658-7581. All of
UtiliCorp Capital's business and affairs will be conducted by UtiliCorp, as the
sole general partner. The principal place of business of UtiliCorp Capital is
c/o UtiliCorp United Inc., 911 Main, Suite 3000, Kansas City, Missouri 64105,
telephone number (816) 421-6600.
UTILICORP UNITED INC.
UtiliCorp is a public utility company which supplies electric and gas
utility service through its seven operating divisions, Missouri Public Service,
Peoples Natural Gas, Kansas Public Service, Northern Minnesota Utilities,
Michigan Gas Utilities, West Virginia Power and WestPlains Energy, and through a
Canadian subsidiary, West Kootenay Power, Ltd. UtiliCorp also holds a 33%
interest through a majority-owned subsidiary in a New Zealand electric
distribution company. The Company has two non-regulated subsidiaries, Aquila
Energy Corporation and UtilCo Group Inc., which own utility and energy related
assets and engage in energy related businesses. The Company has its Executive
Offices at 911 Main, P. O. Box 13287, Kansas City, Missouri 64199-3287,
telephone number (816)421-6600.
The utility businesses of the Company are seasonal, with electric revenues
peaking in the summer and gas revenues peaking in the winter.
The Company is actively seeking expansion through the prudent acquisition of
utility and other energy related properties, including electric and gas
operating utilities, interests in electric generating assets, natural gas
gathering systems and proven reserves.
3
<PAGE>
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED AND PREFERENCE STOCK DIVIDENDS OF UTILICORP
For the twelve-month period ended March 31, 1995 and the last five fiscal
years, the ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred and preference stock dividends of UtiliCorp, computed as
set forth below, were as follows:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
TWELVE MONTHS ENDED -----------------------------------------------------
MARCH 31, 1995 1994 1993 1992 1991 1990
--------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.................. 2.09 2.21 1.99 1.73 2.27 2.02
Ratio of earnings to combined fixed charges and
preferred and preference stock dividends........... 2.04 2.13 1.82 1.58 2.00 1.73
</TABLE>
The ratio of earnings to fixed charges represents the number of times fixed
charges are covered by earnings. For purposes of computing this ratio, earnings
consist of income before income taxes, plus fixed charges. Fixed charges consist
of interest expense (before allowance for borrowed funds used for construction),
amortization of debt issuance costs and such portion of rental expense which the
Company estimates to be representative of the interest factor attributable to
such rental expense.
The ratio of earnings to combined fixed charges and preferred and preference
stock dividends represents the number of times combined fixed charges and
preference stock dividends are covered by earnings. For purposes of computing
this ratio, earnings consist of income before income taxes, plus fixed charges
and preferred and preference stock dividend requirements. Fixed charges consist
of interest expense (before allowance for borrowed funds used for construction),
amortization of debt issuance costs and such portion of rental expense which the
Company estimates to be representative of the interest factor attributable to
such rental expense. Preferred and preference stock dividend requirements are
computed by increasing preferred and preference stock dividends by an amount
representing the pre-tax earnings which would be required to cover such
preferred and preference stock dividend requirements.
USE OF PROCEEDS
UtiliCorp Capital will invest all proceeds received from the sale of
Preferred Securities in Junior Subordinated Debentures. Unless otherwise
specified in the Prospectus Supplement, the net proceeds to be received by
UtiliCorp from the sale of Junior Subordinated Debentures will be used to reduce
outstanding short-term borrowings incurred for construction and acquisitions and
for general corporate purposes. At March 31, 1995, UtiliCorp had outstanding
short-term borrowings (excluding current maturities of long-term debt) of $229.4
million with a weighted average interest rate of 6.58%.
As discussed under "UtiliCorp United Inc.", UtiliCorp is actively seeking to
make acquisitions of utility and other energy related properties. Such
acquisitions, if made, may require additional permanent financings. The nature
and amount of such financings will depend on, among other things, market
conditions at the time of the financings.
4
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
UtiliCorp Capital may issue, from time to time, Preferred Securities, in one
or more series, having terms described in the Prospectus Supplement relating
thereto. The agreement of limited partnership of UtiliCorp Capital will be
amended and restated (as so amended and restated, the "Limited Partnership
Agreement") to authorize the establishment of one or more series of Preferred
Securities, having such terms, including dividends, redemption, voting,
liquidation rights and such other preferred, deferred or other special rights or
such restrictions as shall be set forth therein or otherwise established by the
General Partner pursuant thereto. Reference is made to the Prospectus Supplement
relating to the Preferred Securities of a particular series for specific terms,
including (i) the distinctive designation of such series which shall distinguish
it from other series; (ii) the number of Preferred Securities included in such
series, which number may be increased or decreased from time to time unless
otherwise provided by the General Partner in creating the series; (iii) the
annual dividend rate (or method of determining such rate) for Preferred
Securities of such series and the date or dates upon which such dividends shall
be payable, provided, however, dividends on any series of Preferred Securities
shall be payable on a monthly basis to holders of such series of Preferred
Securities as of a record date in each month during which such series of
Preferred Securities are outstanding; (iv) whether dividends on Preferred
Securities of such series shall be cumulative, and, in the case of Preferred
Securities of any series having cumulative dividend rights, the date or dates or
method of determining the date or dates from which dividends on Preferred
Securities of such series shall be cumulative; (v) the amount or amounts which
shall be paid out of the assets of UtiliCorp Capital to the holders of Preferred
Securities of such series upon voluntary or involuntary dissolution, winding-up
or termination of UtiliCorp Capital; (vi) the price or prices at which, the
period or periods within which and the terms and conditions upon which Preferred
Securities of such series may be redeemed or purchased, in whole or in part, at
the option of UtiliCorp Capital or the General Partner; (vii) the obligation, if
any, of UtiliCorp Capital to purchase or redeem Preferred Securities of such
series and the price or prices at which, the period or periods within which and
the terms and conditions upon which Preferred Securities of such series shall be
purchased or redeemed, in whole or in part, pursuant to such obligation; (viii)
the voting rights, if any, of Preferred Securities of such series in addition to
those required by law, including the number of votes per Preferred Security and
any requirement for the approval by the holders of Preferred Securities, or of
Preferred Securities of one or more series, or of both, as a condition to
specified action or amendments to the Limited Partnership Agreement; and (ix)
any other relative rights, preferences, privileges, limitations or restrictions
of Preferred Securities of the series not inconsistent with the Limited
Partnership Agreement or with applicable law. All Preferred Securities offered
hereby will be guaranteed by UtiliCorp to the extent set forth below under
"Description of the Guarantee". Any applicable federal income tax considerations
applicable to any offering of Preferred Securities will be described in the
Prospectus Supplement relating thereto.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
will be executed and delivered by UtiliCorp for the benefit of the holders from
time to time of Preferred Securities. The summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Guarantee, which is filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
GENERAL
UtiliCorp will irrevocably and unconditionally agree, to the extent set
forth herein, to pay in full, to the holders of the Preferred Securities of each
series, the Guarantee Payments (as defined below) (except to the extent paid by
UtiliCorp Capital), as and when due, regardless of any defense, right of set-off
or counterclaim which UtiliCorp Capital may have or assert. The following
payments with respect to any series of Preferred Securities to the extent not
paid by UtiliCorp Capital (the "Guarantee Payments") will be subject to the
Guarantee (without duplication): (i) any accrued and unpaid dividends which are
required to be paid on the Preferred Securities of such series, to the extent
UtiliCorp Capital shall have
5
<PAGE>
funds legally available therefor, (ii) the redemption price, including all
accrued and unpaid dividends (the "Redemption Price"), payable out of funds
legally available therefor with respect to any Preferred Securities called for
redemption by UtiliCorp Capital and (iii) upon a liquidation of UtiliCorp
Capital, the lesser of (a) the aggregate of the liquidation preference and all
accrued and unpaid dividends on the Preferred Securities of such series to the
date of payment and (b) the amount of assets of UtiliCorp Capital remaining
available for distribution to holders of Preferred Securities of such series in
liquidation of UtiliCorp Capital. UtiliCorp's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by UtiliCorp
to the holders of Preferred Securities or by causing UtiliCorp Capital to pay
such amounts to such holders.
CERTAIN COVENANTS OF UTILICORP
In the Guarantee, UtiliCorp will covenant that, so long as any Preferred
Securities remain outstanding, UtiliCorp will not declare or pay any dividend
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payment with respect to the
foregoing if at such time UtiliCorp shall be in default with respect to its
payment or other obligations under the Guarantee or there shall have occurred
any event that would constitute an Event of Default under the Indenture.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required), the
Guarantee may be changed only with the prior approval of the holders of not less
than 66-2/3% in liquidation preference of the outstanding Preferred Securities.
The manner of obtaining any such approval of holders of the Preferred Securities
of each series will be as set forth in an accompanying Prospectus Supplement.
All guarantees and agreements contained in the Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of UtiliCorp and
shall inure to the benefit of the holders of the Preferred Securities then
outstanding.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect as to the
Preferred Securities of any series upon full payment of the Redemption Price of
all Preferred Securities of such series, and will terminate completely upon full
payment of the amounts payable upon liquidation of UtiliCorp Capital. The
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Preferred Securities of any series must restore
payment of any sums paid under such series of Preferred Securities or the
Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of UtiliCorp and will
rank (i) subordinate and junior in right of payment to all liabilities of
UtiliCorp, (ii) PARI PASSU with the most senior preferred or preference stock
now or hereafter issued by UtiliCorp and with any guarantee now or hereafter
entered into by UtiliCorp in respect of any preferred or preference stock of any
affiliate of UtiliCorp and (iii) senior to UtiliCorp's common stock. The Limited
Partnership Agreement provides that each holder of Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection.
The Guarantee will be deposited with the General Partner to be held for the
benefit of the holders of each series of the Preferred Securities. In the event
of the appointment of a Special Representative to, among other things, enforce
the Guarantee, the Special Representative may take possession of the Guarantee
for such purpose. If no Special Representative has been appointed to enforce the
Guarantee, the General Partner has the right to enforce the Guarantee on behalf
of the holders of each series of the Preferred Securities. The holders of not
less than 10% in aggregate liquidation preference of the Preferred Securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available in respect of the Guarantee, including the giving of
directions to the General Partner or the Special Representative, as the case may
be. If the General Partner or the Special Representative fails to enforce the
Guarantee as
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above provided, any holder of Preferred Securities may institute a legal
proceeding directly against UtiliCorp to enforce its rights under the Guarantee,
without first instituting a legal proceeding against UtiliCorp Capital or any
other person or entity. The Guarantee will not be discharged except by payment
of the Guarantee Payments in full to the extent not paid by UtiliCorp Capital
and by complete performance of all obligations under the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures may be issued from time to time in one or
more series under an Indenture, dated as of , 1995 (the
"Indenture"), between UtiliCorp and UMB Bank, N.A., as Trustee (the "Trustee").
The following summary does not purport to be complete and is subject in all
respects to the provisions of, and is qualified in its entirety by reference to,
the Indenture, which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Whenever particular provisions or defined
terms in the Indenture are referred to herein, such provisions or defined terms
are incorporated by reference herein. Section and Article references used herein
are references to provisions of the Indenture unless otherwise noted.
GENERAL
The Junior Subordinated Debentures will be unsecured, subordinated
obligations of UtiliCorp. The Indenture does not limit the aggregate principal
amount of Junior Subordinated Debentures which may be issued thereunder and
provides that the Junior Subordinated Debentures may be issued thereunder from
time to time in one or more series.
The Junior Subordinated Debentures are issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution of
UtiliCorp's Board of Directors or a special committee thereof (each, a
"Supplemental Indenture") (Sections 201 and 301). The aggregate principal amount
of Junior Subordinated Debentures relating to Preferred Securities of any series
will be set forth in the Prospectus Supplement for such series and will be equal
to the aggregate liquidation preference of the Preferred Securities for such
series. Junior Subordinated Debentures relating to Preferred Securities of any
series subsequently may be distributed pro rata to holders of Preferred
Securities of such series in connection with the dissolution of UtiliCorp
Capital upon the occurrence of certain events described in the Prospectus
Supplement relating to the Preferred Securities of such series.
Reference is made to the Prospectus Supplement which will accompany this
Prospectus for the following terms of the series of Junior Subordinated
Debentures being offered thereby: (i) the specific title of such Junior
Subordinated Debentures; (ii) any limit on the aggregate principal amount of
such Junior Subordinated Debentures; (iii) the date or dates on which the
principal of such Junior Subordinated Debentures is payable; (iv) the rate or
rates at which such Junior Subordinated Debentures will bear interest or the
method of determination of such rate or rates; (v) the date or dates from which
such interest shall accrue, the interest payment dates on which such interest
will be payable or the manner of determination of such interest payment dates
and the record dates for the determination of holders to whom interest is
payable on any such interest payment dates; (vi) the right, if any, to extend
the interest payment periods and the duration of such extension; (vii) the
period or periods within which, the price or prices at which and the terms and
conditions upon which such Junior Subordinated Debentures may be redeemed, in
whole or in part, at the option of UtiliCorp; (viii) the obligation, if any, of
UtiliCorp to redeem or purchase such Junior Subordinated Debentures pursuant to
any sinking fund or analogous provisions or at the option of the holder thereof
and the period or periods, the price or prices at which, and the terms and
conditions upon which, such Junior Subordinated Debentures shall be redeemed or
purchased, in whole or part, pursuant to such obligation; (ix) the form of such
Junior Subordinated Debentures; (x) if other than denominations of $25 or any
integral multiple thereof, the denominations in
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which such Junior Subordinated Debentures shall be issuable; (xi) any and all
other terms with respect to such series; and (xii) whether such Junior
Subordinated Debentures are issuable as a global security, and in such case, the
identity of the depository.
SUBORDINATION
The Indenture provides that the Junior Subordinated Debentures are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined below) of UtiliCorp as provided in the Indenture. No payment of
principal of (including redemption and sinking fund payments), premium, if any,
or interest on, the Junior Subordinated Debentures may be made if any Senior
Indebtedness is not paid when due, any applicable grace period with respect to
such default has ended and such default has not been cured or waived, or if the
maturity of any Senior Indebtedness has been accelerated because of a default.
Upon any distribution of assets of UtiliCorp to creditors upon any dissolution,
winding-up, liquidation or reorganization, whether voluntary or involuntary or
in bankruptcy, insolvency, receivership or other proceedings, all principal of,
and premium, if any, and interest due or to become due on, all Senior
Indebtedness must be paid in full before the holders of the Junior Subordinated
Debentures are entitled to receive or retain any payment. The rights of the
holders of the Junior Subordinated Debentures will be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions
applicable to Senior Indebtedness until all amounts owing on the Junior
Subordinated Debentures are paid in full. (Sections 1301 to 1303). However,
since the vast majority of UtiliCorp's Senior Indebtedness currently is not
secured and ranks PARI PASSU with other unsecured indebtedness of UtiliCorp,
rights of subrogation currently do not improve the position of the holders of
the Junior Subordinated Debentures in relation to the holders of any other
unsecured indebtedness of UtiliCorp.
The term "Senior Indebtedness" shall mean the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date of execution of the Indenture or thereafter incurred,
created or assumed:
(a) all indebtedness of UtiliCorp evidenced by notes, debentures, bonds
or other securities sold by UtiliCorp for money;
(b) all indebtedness of others of the kinds described in the preceding
clause (a) assumed by or guaranteed in any manner by UtiliCorp or in effect
guaranteed by UtiliCorp; and
(c) all renewals, extensions or refundings of indebtedness of the kinds
described in any of the preceding clauses (a) and (b);
unless, in the case of any particular indebtedness, renewal, extension or
refunding, the instrument creating or evidencing the same or the assumption or
guarantee of the same expressly provides that such indebtedness, renewal,
extension or refunding is not superior in right of payment to or is PARI PASSU
with the Junior Subordinated Debentures. Such Senior Indebtedness shall continue
to be Senior Indebtedness and entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness. (Section 101).
The Indenture does not limit the aggregate amount of Senior Indebtedness
which may be issued. As of March 31, 1995, Senior Indebtedness of UtiliCorp
aggregated approximately $1,239.7 million.
CERTAIN COVENANTS OF UTILICORP
UtiliCorp will covenant that it will not declare or pay any dividend on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its capital stock, if at such time (i) there shall have
occurred any event that would constitute an Event of Default under the
Indenture, (ii) UtiliCorp shall be in default with respect to its payment of any
obligations under the Guarantee or (iii) UtiliCorp shall have given notice of
its selection of an extended interest payment period as provided in the
Indenture and such period, or any extension thereof, shall be continuing.
(Section 1009). UtiliCorp will also covenant so long as UtiliCorp Capital does
not merge, consolidate, or amalgamate with or into, or is not replaced by, or
does not convey, transfer or lease to, a trust as permitted without the consent
of holders of the Preferred Securities under the Limited Partnership Agreement
(i) to remain the sole
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general partner of UtiliCorp Capital and maintain 100% ownership of the general
partner interests thereof; provided that any permitted successor of UtiliCorp
under the Indenture may succeed to UtiliCorp's duties as General Partner, (ii)
to contribute capital to the extent required to maintain its capital at an
amount equal to at least 3% of the total capital contributions to UtiliCorp
Capital, (iii) not to voluntarily dissolve, wind-up or terminate UtiliCorp
Capital, except in connection with the distribution of Junior Subordinated
Debentures to the holders of Preferred Securities in liquidation of UtiliCorp
Capital and in connection with certain mergers, consolidations, amalgamations,
replacements, conveyances, transfers or leases permitted by the Limited
Partnership Agreement, (iv) to timely perform all of its duties as the general
partner in UtiliCorp Capital (including the duty to pay dividends on the
Preferred Securities) and (v) to use its reasonable efforts to cause UtiliCorp
Capital to remain a limited partnership and otherwise continue to be treated as
a partnership for United States federal income tax purposes. (Section 1010)
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Junior Subordinated Debentures of each series will be issued in registered
form and in either certificated form or will be represented by one or more
global securities. If not represented by one or more global securities, Junior
Subordinated Debentures may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) or exchange, at the office of
the Debenture Registrar or at the office of any transfer agent designated by
UtiliCorp for such purpose with respect to any series of Junior Subordinated
Debentures and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the relevant Indenture. Such transfer or exchange will be effected
upon the Debenture Registrar or such transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. UtiliCorp has appointed the Trustee as Debenture Registrar with respect
to the Junior Subordinated Debentures. (Section 305). If a Prospectus Supplement
refers to any transfer agents (in addition to the Debenture Registrar) initially
designated by UtiliCorp with respect to any series of Junior Subordinated
Debentures, UtiliCorp may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that UtiliCorp will be required to maintain a
transfer agent in each Place of Payment for such series. (Section 1002).
UtiliCorp may at any time designate additional transfer agents with respect to
any series of Junior Subordinated Debentures.
In the event of any redemption in part, UtiliCorp shall not be required to
(i) issue, register the transfer of or exchange any Junior Subordinated
Debentures during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of Junior Subordinated Debentures
of the series selected for redemption and ending at the close of business on the
date of such mailing and (ii) register the transfer of or exchange any Junior
Subordinated Debentures so selected for redemption, in whole or in part, except
the unredeemed portion of any Junior Subordinated Debenture being redeemed in
part. (Section 305).
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium (if any) on any Junior Subordinated Debenture will
be made only against surrender to the Paying Agent of such Junior Subordinated
Debenture. Unless otherwise indicated in an applicable Prospectus Supplement,
principal of and any premium and interest, if any, on Junior Subordinated
Debentures will be payable, subject to any applicable laws and regulations, at
the office of such Paying Agent or Paying Agents as UtiliCorp may designate from
time to time, except that at the option of UtiliCorp payment of any interest may
be made by check mailed to the address of the person entitled thereto as such
address shall appear in the Debenture Register with respect to such Junior
Subordinated Debentures. (Section 1003). Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest on a Junior Subordinated
Debenture on any Interest Payment Date will be made to the person in whose name
such Junior Subordinated Debenture (or Predecessor Security) is registered at
the close of business on the Regular Record Date for such interest payment.
(Section 302).
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UtiliCorp may act as Paying Agent with respect to the Junior Subordinated
Debentures. UtiliCorp may at any time designate additional Paying Agents or
rescind the designation of any Paying Agents or approve a change in the office
through which any Paying Agent acts, except that UtiliCorp will be required to
maintain a Paying Agent in each Place of Payment for each series of the
respective Junior Subordinated Debentures. (Sections 1002 and 1003).
All moneys paid by UtiliCorp to a Paying Agent for the payment of the
principal of or premium or interest, if any, on any Junior Subordinated
Debenture of any series which remain unclaimed at the end of three years after
such principal, premium, if any, or interest shall have become due and payable
will be repaid to UtiliCorp and the holder of such Junior Subordinated Debenture
will thereafter look only to UtiliCorp for payment thereof. (Section 1003).
GLOBAL DEBENTURES
If any Junior Subordinated Debentures of a series are represented by one or
more global securities, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in any such
Global Debenture may exchange such interests for Junior Subordinated Debentures
of such series and of like tenor and principal amount in any authorized form and
denomination. Principal of and any premium and interest on a Global Debenture
will be payable in the manner described in the applicable Prospectus Supplement.
The specific terms of the depository arrangement with respect to any portion
of a series of Junior Subordinated Debentures to be represented by a Global
Debenture will be described in the applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting UtiliCorp and the Trustee, with
the consent of the holders of not less than a majority in principal amount of
the Junior Subordinated Debentures of each series which are affected by the
modification, to modify the Indenture or any supplemental indenture affecting
that series or the rights of the holders of that series of Junior Subordinated
Debentures; provided, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debenture affected thereby, (i)
change the maturity (whether fixed by its terms or by its terms extendible at
the option of the Company) of any Junior Subordinated Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Junior Subordinated Debenture
so affected or (ii) reduce the percentage of Junior Subordinated Debentures, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of each Junior Subordinated Debenture then
outstanding and affected thereby. (Section 902).
In addition, UtiliCorp and the Trustee may execute, without the consent of
any holder of Junior Subordinated Debentures, any supplemental indenture for
certain other usual purposes including the creation of any new series of Junior
Subordinated Debentures. (Sections 301, 801 and 901).
EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events, which has occurred and is continuing, constitutes an "Event of Default"
with respect to each series of Junior Subordinated Debentures:
(a) failure for 10 days to pay interest on the Junior Subordinated
Debentures of that series, including any Additional Interest in respect
thereof, when due; or
(b) failure to pay principal or premium, if any, on the Junior
Subordinated Debentures of that series when due whether at maturity, upon
redemption by declaration or otherwise, or to make any sinking or analogous
fund payment with respect to that series; or
(c) failure to observe or perform any other covenant (other than those
specifically relating to another series) contained in the Indenture for 90
days after notice; or
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(d) the dissolution, winding-up or termination of UtiliCorp Capital,
except in connection with the distribution of Junior Subordinated Debentures
to the holders of Preferred Securities in liquidation of UtiliCorp Capital
and in connection with certain mergers, consolidations, amalgamations,
replacements, conveyances, transfers or leases permitted by the Limited
Partnership Agreement; or
(e) certain events in bankruptcy, insolvency or reorganization of
UtiliCorp. (Section 501).
The holders of a majority in aggregate outstanding principal amount of any
series of the Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee for that series. (Section 512). The Trustee or the holders of not less
than 25% in aggregate outstanding principal amount of any particular series of
the Junior Subordinated Debentures may declare the principal due and payable
immediately on an Event of Default with respect to such series, but the holders
of a majority in aggregate outstanding principal amount of such series may annul
such declaration and waive the default if the default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee. (Sections 502 and 512).
The holders of a majority in aggregate outstanding principal amount of all
series of the Junior Subordinated Debentures affected thereby may, on behalf of
the holders of all the Junior Subordinated Debentures of such series, waive any
past default, except a default in the payment of principal, premium, if any, or
interest. (Section 513). UtiliCorp is required to file annually with the Trustee
a certificate as to whether or not UtiliCorp is in compliance with all the
conditions and covenants under the Indenture. (Section704(4)).
CONSOLIDATION, MERGER AND SALE
The Indenture contains a provision permitting UtiliCorp, without the consent
of the Holders of any of the Outstanding Securities under the Indenture, to
consolidate with or merge into any other corporation or transfer or lease its
assets substantially as an entirety to any person or to acquire or lease the
assets of any Person substantially as an entirety or to permit any corporation
to merge into UtiliCorp, provided that: (i) the successor is a corporation
organized under the laws of any domestic jurisdiction; (ii) the successor
corporation, if other than UtiliCorp, assumes UtiliCorp's obligations on the
Junior Subordinated Securities and under the Indenture; and (iii) after giving
effect to the transaction, no Event of Default, and no event which, after notice
or lapse of time, would become an Event of Default, shall have occurred and be
continuing. (Section 801).
Unless otherwise indicated in the Prospectus Supplement, certain of the
covenants described above would not necessarily afford the holders protection in
the event of a highly leveraged transaction involving UtiliCorp, such as a
leveraged buyout. However, issuance of debt securities by the Company requires
regulatory approval.
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, UtiliCorp will be discharged from any and
all obligations in respect of the Junior Subordinated Debentures of any series
(except in each case for certain obligations to register the transfer or
exchange of Junior Subordinated Debentures, replace stolen, lost or mutilated
Junior Subordinated Debentures, maintain paying agencies and hold moneys for
payment in trust) or need not comply with certain restrictive covenants if
UtiliCorp deposits with the Trustee, in trust, moneys or U.S. Government
Obligations, in an amount sufficient to pay all the principal of, and interest
on, the Junior Subordinated Debentures of such series on the dates such payments
are due in accordance with the terms of such Junior Subordinated Debentures.
(Sections 402, 403 and 1008).
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by,
and construed in accordance with, the laws of the State of New York. (Section
112).
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INFORMATION CONCERNING THE TRUSTEE
The Trustee, prior to an Event of Default, undertakes to perform only such
duties as are specifically set forth in the Indenture and, after an Event of
Default, shall exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. (Section 601). Subject to
such provision, the Trustee is under no obligation to exercise any of the powers
vested in it by the Indenture at the request of any holder of Junior
Subordinated Debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby.
(Section 603). The Trustee is not required to expand or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it. (Section 601).
UtiliCorp maintains a deposit account and banking relationship with the
Trustee. The Trustee serves as trustee under another indenture under which there
are no debt securities outstanding.
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PLAN OF DISTRIBUTION
UtiliCorp Capital may sell any series of Preferred Securities being offered
hereby in one or more of the following ways from time to time: (i) to
underwriters for resale to the public or to institutional investors; (ii)
directly to institutional investors; or (iii) through agents to the public or to
institutional investors. The Prospectus Supplement with respect to each series
of Preferred Securities will set forth the terms of the offering of such
Preferred Securities, including the name or names of any underwriters or agents,
the purchase price of such Preferred Securities and the proceeds to UtiliCorp
Capital, as the case may be, from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchanges on which such
Preferred Securities may be listed.
If underwriters are used in the sale, such Preferred Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase any series of Preferred Securities will be subject
to certain conditions precedent and the underwriters will be obligated to
purchase all of such series of Preferred Securities, if any are purchased. In
the event of a default of one or more of the underwriters involving not more
than one-eleventh of the aggregate number of Preferred Securities offered for
sale, the non-defaulting underwriters would be required to purchase the
Preferred Securities agreed to be purchased by such defaulting underwriter or
underwriters. In the event of a default in excess of one-eleventh of the
aggregate number of Preferred Securities, then UtiliCorp Capital may, at its
option, sell to the non-defaulting underwriters all of the Preferred Securities
which such underwriters have committed to purchase.
Underwriters and agents may be entitled under agreements entered into with
UtiliCorp and/or UtiliCorp Capital to indemnification by UtiliCorp and/or
UtiliCorp Capital against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribution with respect to payments which
the underwriters or agents may be required to make in respect thereof.
Underwriters and agents may be customers of, engage in transactions with, or
perform services for UtiliCorp in the ordinary course of business.
Each series of Preferred Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Preferred
Securities are sold by UtiliCorp Capital for public offering and sale may make a
market in such Preferred Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. The
Preferred Securities may or may not be listed on a national securities exchange.
EXPERTS
The consolidated financial statements and schedules included in UtiliCorp's
Annual Report on Form 10-K for the years ended December 31, 1994, 1993 and 1992
which are incorporated by reference in this Prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said reports.
LEGAL OPINIONS
Certain legal matters in connection with the Preferred Securities will be
passed upon for UtiliCorp by Blackwell Sanders Matheny Weary & Lombardi L.C.,
and for the purchasers or underwriters by Milbank, Tweed, Hadley & McCloy, New
York, New York. Certain matters of Delaware law relating to the validity of the
Preferred Securities will be passed upon by Richards, Layton & Finger, P.A., as
special Delaware counsel for UtiliCorp and UtiliCorp Capital. Blackwell Sanders
Matheny Weary & Lombardi L.C. will rely on the opinion of Richards, Layton &
Finger, P.A. as to certain matters of Delaware law.
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITY OTHER THAN SECURITIES DESCRIBED IN
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS OR AN OFFER TO SELL, OR THE
SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES TO ANY PERSON IN ANY
JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION TO
SUCH PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
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<S> <C>
UtiliCorp Capital.............................. S-3
UtiliCorp United Inc........................... S-3
Investment Considerations...................... S-4
Recent Developments............................ S-5
Summary Financial and Operating Information of
UtiliCorp..................................... S-6
Capitalization of UtiliCorp.................... S-8
Use of Proceeds................................ S-8
Description of the Series A Preferred
Securities.................................... S-8
Description of the Series A Junior Subordinated
Debentures.................................... S-18
Effect of Obligations under the Series A Junior
Subordinated Debentures and the Guarantee..... S-22
United States Taxation......................... S-22
Underwriting................................... S-26
Legal Matters.................................. S-27
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference..................................... 2
UtiliCorp Capital.............................. 3
UtiliCorp United Inc........................... 3
Consolidated Ratios of Earnings to Fixed
Charges and Earnings to Combined Fixed Charges
and Preferred and Preference Stock Dividends
of UtiliCorp.................................. 4
Use of Proceeds................................ 4
Description of the Preferred Securities........ 5
Description of the Guarantee................... 5
Description of the Junior Subordinated
Debentures.................................... 7
Plan of Distribution........................... 13
Experts........................................ 13
Legal Opinions................................. 13
</TABLE>
PREFERRED SECURITIES
UTILICORP CAPITAL L.P.
GUARANTEED TO THE EXTENT THE ISSUER
HAS FUNDS AS SET FORTH
HEREIN BY
UTILICORP UNITED INC.
% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES,
SERIES A
-----------------
PROSPECTUS SUPPLEMENT
-----------------
GOLDMAN, SACHS & CO.
SMITH BARNEY INC.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses to be paid by
the registrant in connection with the issuance and sale of the Securities being
registered.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 34,483
Accounting fees and expenses..................................... 20,000
Printing fees.................................................... 100,000
Trustees fees and expenses....................................... 5,000
Stock Exchange Listing Fees...................................... 45,000
Legal fees and expenses.......................................... 75,000
Blue Sky fees and expenses....................................... 12,000
Fees of rating agencies.......................................... 25,000
Miscellaneous.................................................... 8,517
---------
Total........................................................ $ 325,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law confers broad powers
upon corporations incorporated in that State with respect to indemnification of
any person against liabilities incurred by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation or other business entity. The provisions of
Section 145 are not exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement or otherwise.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
There is in effect for the Company a dual phase insurance policy providing
directors and officers with indemnification, subject to certain exclusions and
to the extent not otherwise indemnified by the Company, against loss (including
expenses incurred in the defense of actions, suits or proceedings in connection
therewith) arising from any negligent act, error, omission or breach of duty
while acting in their capacity as directors and officers of the Company. The
policy also reimburses the Company for liability incurred in the indemnification
of its directors and officers.
There is also in effect a Bylaw provision entitling officers and directors
to be indemnified by the Company against costs or expenses, attorneys' fees,
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred in connection with any action, suit or proceeding, including actions
brought by or in the right of the Company, to which such persons are made or
threatened to be made a party, by reason of their being a director or officer.
Such right, however, may be made only as authorized by (i) a majority vote of a
quorum of disinterested directors, or (ii) if such quorum is not obtainable or,
if obtainable, a majority thereof so directs, by independent legal counsel, or
(iii) by the stockholders of the Company, upon a determination that the person
seeking indemnification acted in good faith and in the manner that he reasonably
believed to be in or not opposed to the Company's best interest, or, if the
action is criminal in such person, upon a determination that the person seeking
indemnification had no reasonable cause to believe that such person's conduct
was unlawful. This provision also requires the Company, upon authorization by
the Board of Directors, to advance costs and expenses, including attorneys'
fees, reasonably incurred in defending such actions; provided, that any person
seeking such an advance first provide the Company with an undertaking to repay
any amount as to which it may be determined such person is not entitled.
II-1
<PAGE>
Pursuant to the Limited Partnership Agreement, to the fullest extent
permitted by applicable law, UtiliCorp Capital shall indemnify and hold harmless
the General Partner or any Special Representative, any affiliate of the General
Partner or any Special Representative or any officers, directors, shareholders,
partners, employees, representatives or agents of the General Partner or any
Special Representative, or any employee or agent of UtiliCorp Capital or its
affiliates (each, an "Indemnified Person") from and against any loss, damage or
claim incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
UtiliCorp Capital and in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Person by the Limited Partnership
Agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of gross negligence or willful misconduct with respect to such acts or
omissions; provided, however, that any such indemnity shall be provided out of
and to the extent of UtiliCorp Capital's assets only, and no General Partner or
limited partner (collectively, "Partners"), any affiliate of a Partner or any
officers, directors, shareholders, partners, employees, representatives or
agents of a Partner or its respective affiliates, or any employee or agent of
UtiliCorp Capital or its affiliates or any Special Representative shall have any
personal liability on account thereof. To the fullest extent permitted by
applicable law, expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by UtiliCorp Capital prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by UtiliCorp Capital
of an undertaking by or on behalf of the Indemnified Person to repay such amount
if it shall be determined that the Indemnified Person is not entitled to be
indemnified.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
- ----- -------------------------------------------------------------------------------------------------
<S> <C>
1 -- Form of Underwriting Agreement.
4(a) -- Form of Indenture between UtiliCorp and UMB Bank, N.A., as Trustee.
4(b) -- Form of First Supplemental Indenture to Indenture.
4(c) -- Certificate of Limited Partnership of UtiliCorp Capital.
4(d) -- Form of Amended and Restated Agreement of Limited Partnership of UtiliCorp
Capital.
4(e) -- Form of Action of General Partner of UtiliCorp Capital.
4(f) -- Form of Preferred Security (included in Exhibit 4(d) above).
4(g) -- Form of Guarantee Agreement with respect to Preferred Securities.
5(a) -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C.
5(b) -- Opinion of Richards, Layton & Finger, P.A.
8 -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C.
12 -- Computations of consolidated ratio of earnings to fixed charges and consolidated ratio of
earnings to combined fixed charges and preferred and preference stock dividend requirements.
23(a) -- Consent of Arthur Andersen LLP.
23(b) -- Consent of Blackwell Sanders Matheny Weary & L.C. (included in Exhibit 5(a) above).
23(c) -- Consent of Blackwell Sanders Matheny Weary & L.C. (included in Exhibit 8 above).
23(d) -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5(b) above).
24 -- Powers of Attorney executed by certain officers and the Board of Directors of UtiliCorp United
Inc.
25 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of UMB Bank, N.A., as
Trustee under the Indenture.
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(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
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by UtiliCorp 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 such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(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.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
UtiliCorp's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrants pursuant to the provision described under Item 15 above, or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, UtiliCorp Capital
L.P. 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 New York, State of New York on the 11th day of May,
1995.
UTILICORP CAPITAL L.P.
By: UtiliCorp United Inc.,
General Partner
By: /S/ DALE J. WOLF
-----------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, UtiliCorp
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 New York, State of New York, on the 11th day of May,
1995.
UTILICORP UNITED INC.
By: /S/ DALE J. WOLF
-----------------------------------
Dale J. Wolf
VICE PRESIDENT, FINANCE, TREASURER
AND CORPORATE SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 11th day of May, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
RICHARD C. GREEN, JR.* Chairman of the Board, President and Chief Executive
------------------------------------------- Officer (Principal Executive Officer)
Richard C. Green, Jr.
/s/ DALE J. WOLF Vice President, Finance, Treasurer and Corporate
------------------------------------------- Secretary (Principal Financial Officer)
Dale J. Wolf
JAMES S. BROOK*
------------------------------------------- Vice President (Principal Accounting Officer)
James S. Brook
RICHARD C. GREEN, JR.*
ROBERT K. GREEN*
JOHN R. BAKER*
AVIS G. TUCKER*
ROBERT F. JACKSON* The Board of Directors
L. PATTON KLINE*
DR. STANLEY O. IKENBERRY*
IRVINE O. HOCKADAY, JR.*
HERMAN CAIN*
*By: /S/ DALE J. WOLF As attorney-in-fact for the above-named officers and
-------------------------------------- directors pursuant to powers of attorney duly executed
Dale J. Wolf by such persons
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED PAGE
UPON WHICH
EXHIBIT DESCRIPTION EXHIBIT APPEARS
- ----- --------------------------------------------------------------------------------- ----------------
<S> <C> <C>
1 -- Form of Underwriting Agreement.
4(a) -- Form of Indenture between UtiliCorp and UMB Bank, N.A., as Trustee.
4(b) -- Form of First Supplemental Indenture to Indenture.
4(c) -- Certificate of Limited Partnership of UtiliCorp Capital.
4(d) -- Form of Amended and Restated Agreement of Limited Partnership of UtiliCorp
Capital.
4(e) -- Form of Action of General Partner of UtiliCorp Capital.
4(f) -- Form of Preferred Security (included in Exhibit 4(d) above).
4(g) -- Form of Guarantee Agreement with respect to Preferred Securities.
5(a) -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C.
5(b) -- Opinion of Richards, Layton & Finger, P.A.
8 -- Opinion of Blackwell Sanders Matheny Weary & Lombardi L.C.
12 -- Computations of consolidated ratio of earnings to fixed charges and consolidated
ratio of earnings to combined fixed charges and preferred and preference stock
dividend requirements.
23(a) -- Consent of Arthur Andersen LLP.
23(b) -- Consent of Blackwell Sanders Matheny Weary & L.C. (included in Exhibit 5(a)
above).
23(c) -- Consent of Blackwell Sanders Matheny Weary & L.C. (included in Exhibit 8 above).
23(d) -- Consent of Richards, Layton & Finger, P.A. (included in Exhibit 5(b) above).
24 -- Powers of Attorney executed by certain officers and the Board of Directors of
UtiliCorp United Inc.
25 -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of
UMB Bank, N.A., as Trustee under the Indenture.
</TABLE>
<PAGE>
UTILICORP CAPITAL L.P.
PREFERRED SECURITIES
GUARANTEED BY
UTILICORP UNITED INC.
UNDERWRITING AGREEMENT
____________, 1995
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
As Representatives of the
several Underwriters
c/o GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time UtiliCorp Capital L.P., a Delaware limited
partnership (the "Issuer"), as issuer, and UtiliCorp United Inc., a Delaware
company (the "Company"), as guarantor, propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, whereby the Issuer will
issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain preferred
securities representing limited partnership interests in the Issuer (the
"Preferred Securities"), specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Firm Securities") and, if set
forth in the applicable Pricing Agreement and solely for the purpose of covering
over-allotments, an additional number of Preferred Securities specified in
Schedule II to such Pricing Agreement (the "Option Securities"), guaranteed by
the Company as to the payment of cash distributions, out of moneys held by the
Issuer, and as to payments on liquidation or redemption and described in any
Prospectus (as defined in Section 2(a) hereof) (the "Guarantee") (the Firm
Securities and the Option Securities, if any, which the Underwriters elect to
purchase pursuant to Section
<PAGE>
4 hereof being referred to collectively as the "Securities", and the Securities
and the Guarantee being referred to collectively as the "Designated
Securities").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Issuer to sell any of
the Preferred Securities (including the Guarantee) or as an obligation of any of
the Underwriters to purchase any of the Preferred Securities (including the
Guarantee). The obligation of the Issuer to issue and sell any of the Preferred
Securities (including the Guarantee) and the obligation of any of the
Underwriters to purchase any of the Preferred Securities (including the
Guarantee) shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of Firm Securities, the aggregate numbers of Option
Securities, if any, the initial public offering price of such Firm and Option
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm and Option Securities and payment
therefor. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Each of the Issuer and the Company jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement or registration statements in respect of
the Preferred Securities, the Guarantee and the Junior Surbordinated
Debentures (as hereafter defined) has been filed with the Securities and
Exchange Commission (the "Commission") on Form S-3; such registration
statement or registration statements and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement or
registration statements, but including all
-2-
<PAGE>
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters have been declared
effective by the Commission in such form; no other document with respect to
such registration statement or registration statements or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement or registration statements has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or registration statements or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"); the various parts of such
registration statement or registration statements, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained therein at the time such part of the registration statement or
registration statements became effective, each as amended at the time such
part of registration statement or registration statements became effective,
being hereinafter called the "Registration Statement"; the prospectus
relating to the Preferred Securities and the Guarantee, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus, as amended or
supplemented, shall be deemed to refer to the Prospectus, as amended or
supplemented, in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
-3-
<PAGE>
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder 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 not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Issuer or the
Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus, as amended or
supplemented, relating to such Designated Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments of supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder, and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Issuer
or the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus, as amended or
supplemented, relating to such Designated Securities;
(d) The Issuer has no subsidiaries. Neither the Issuer nor the
Company (including all of its subsidiaries taken as a whole, each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Issuer or the Company and its Subsidiaries taken as a whole, or
sustained since the date of the latest audited financial
-4-
<PAGE>
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there has not been any material change in the capital
stock, or material increase in the short-term debt or long-term debt, of
the Company or any of its Subsidiaries or any material adverse change, or
any development involving, or which may reasonably be expected to involve,
a prospective material adverse change in or affecting the condition
(financial or other), results of operations, business, prospects, net worth
or assets of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(e) This Agreement and any applicable Pricing Agreement have been
duly authorized by the Issuer and the Company and conform in all material
respects to the descriptions thereof in the Prospectus, as amended or
supplemented, with respect to such Designated Securities;
(f) The Designated Securities, upon issuance and delivery and payment
therefor in the manner described herein and in any applicable Pricing
Agreement, will be, duly authorized, validly issued, fully paid and
nonassessable. The Designated Securities conform to the description thereof
in the Prospectus, as amended or supplemented, with respect to such
Designated Securities;
(g) The Issuer has been duly formed and is validly existing as a
limited partnership in good standing under the Delaware Revised Uniform
Limited Partnership Act, as amended (the "Partnership Act");
(h) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power
and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary. All of the
shares of capital stock of the Company outstanding and all of the
outstanding shares of capital stock of each Subsidiary, have been duly
authorized and validly issued, are fully paid and nonassessable. All of
the outstanding shares of capital stock of each Subsidiary are owned
directly or indirectly by the Company (except for United Gas Company
Limited, of which the Company owns seventy-five
-5-
<PAGE>
percent of the outstanding shares of capital stock), free and clear of any
claim, lien, encumbrance or security interest except as otherwise disclosed in
writing to the Representatives;
(i) The Indenture dated as of ________, 1995 between the Company and
___________, as trustee, as amended (the "Subordinated Indenture"), and the
junior subordinated debentures of the Company (the "Junior Subordinated
Debentures") to be issued thereunder, have been duly authorized; the
Subordinated Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, at the Time of
Delivery (as defined herein), will have been duly executed and delivered
and will constitute, and the Junior Subordinated Debentures, when duly
executed and authenticated in accordance with the Subordinated Indenture
and issued and delivered under the circumstances provided in the
Prospectus, as amended or supplemented, will constitute, valid and legally
binding obligations of the Company enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights and remedies generally, as
from time to time in effect, and by applicable principles of equity and
considerations of public policy (regardless of whether enforceability is
considered in a proceeding in equity or at law); and the Junior
Subordinated Debentures will conform to the description thereof in the
Prospectus;
(j) The limited partnership agreement of the Issuer, as amended and
restated (the "Limited Partnership Agreement"), constitutes a legal, valid
and binding agreement of the Company, in its capacity as the general
partner of the Issuer, and is enforceable against the Company in its
capacity as the general partner of the Issuer, in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting the enforcement of creditors' rights
and remedies generally, as from time to time in effect, by applicable
principles of equity and considerations of public policy (regardless of
whether enforceability is considered in a proceeding in equity or at law)
and by applicable law relating to fiduciary duties;
(k) The Guarantee has been duly authorized and when validly executed
and delivered by the Company will constitute a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
relating to or affecting
-6-
<PAGE>
the enforcement of creditors' rights and remedies generally, as from time
to time in effect, and by applicable principles of equity and
considerations of public policy (regardless of whether enforceability is
considered in a proceeding in equity or at law); and the Guarantee will
conform to the description thereof in the Prospectus;
(l) All of the limited partnership interests of the Issuer (other
than the Preferred Securities) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
each of the limited partners of the Issuer has been duly admitted as a
limited partner of the Issuer; and the Issuer is not a party to or
otherwise bound by any agreement other than those described in the
Prospectus, as amended or supplemented;
(m) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution or delivery hereof or of any Pricing
Agreement, the execution or delivery of the Guarantee, the execution or
delivery of the Subordinated Indenture or consummation of the transactions
contemplated hereby or by any Pricing Agreement result in a violation of,
or constitute a default under, the certificate of incorporation, by-laws or
other governing documents of the Company or any of its Subsidiaries, or any
agreement, indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or to which any
of their properties is subject, nor will the performance by the Company of
its obligations hereunder violate any law, rule, administrative regulation
or decree of any court or any governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their properties,
or result in the creation or imposition of any lien, charge, claim or
encumbrance upon any property or asset of the Company or any of its
Subsidiaries which would be material to the Company and its Subsidiaries
taken as a whole. Except for permits and similar authorizations required
under the Act, the Federal Power Act, the laws of the States of Colorado,
Michigan [and West Virginia] and the securities or Blue Sky laws of certain
jurisdictions, and except for such permits and authorizations as have been
obtained, no consent, approval, authorization or order of any court,
governmental agency or body or financial institution is required in
connection with the issue of the Guarantee or the Junior Subordinated
Debentures or the consummation of the transactions contemplated by this
Agreement and any applicable Pricing Agreement;
(n) The Issuer is not, or with the giving of notice or lapse of time
or both would not be, in violation of or in default under, and the
execution or delivery hereof or of any Pricing Agreement or consummation of
the transactions contemplated hereby or by any Pricing Agreement will not
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<PAGE>
result in a violation of, or constitute a default under, the certificate of
limited partnership or the Limited Partnership Agreement or other governing
documents of the Issuer, or any agreement, indenture or other instrument to
which the Issuer is a party or by which the Issuer is bound, or to which
the Issuer is subject, and the performance by the Issuer of its obligations
hereunder will not violate any law, rule, administrative regulation or
decree of any court or any governmental agency or body having jurisdiction
over the Issuer or any of its properties, or result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or
asset of the Issuer which would be material to the Issuer. Except for
permits and similar authorizations required under the Act, the Federal
Power Act, the laws of the States of Colorado, Michigan and [West Virginia]
and the securities or Blue Sky laws of certain jurisdictions, and except
for such permits and authorizations as have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body
or financial institution is required in connection with the consummation of
the transactions contemplated by this Agreement and any applicable Pricing
Agreement;
(o) The Issuer and the Company and its Subsidiaries have good and
marketable title to all material real and personal property owned by them,
in each case free and clear of all mortgages, liens, encumbrances and
defects, except such as are described or referred to in the Prospectus, as
amended or supplemented, or such as do not materially affect the values of
such property and do not interfere with the use made or proposed to be made
of such property by the Issuer or the Company or such Subsidiaries; and any
real property and buildings held under lease by the Issuer and the Company
and its Subsidiaries are held by them under valid, existing and enforceable
leases with such exceptions as are not material and do not interfere with
the use made or proposed to be made of such property and buildings by the
Issuer and the Company or such Subsidiaries;
(p) Except as described in the Prospectus, as amended or
supplemented, there is no litigation or governmental proceeding to which
the Issuer or the Company or any of its Subsidiaries is a party or to which
any property of the Issuer, or the Company or any of its Subsidiaries is
subject or which is pending or, to the knowledge of the Issuer or the
Company, contemplated against the Issuer or the Company or any of its
Subsidiaries which might result in any material adverse change in the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Issuer and the Company and its Subsidiaries
taken as a whole;
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(q) The Issuer, the Company and its Subsidiaries are not in violation
of any law, ordinance, governmental rule or regulation or court decree to
which it is subject which violation would have a material adverse effect on
the condition (financial or other), results of operations, business,
prospects, net worth or assets of the Issuer and the Company and its
Subsidiaries taken as a whole;
(r) The Company and the Issuer have not distributed and will not
distribute prior to the Time of Delivery or the Option Time of Delivery
(each as defined herein) any offering material in connection with the
offering and sale of the Designated Securities other than the Registration
Statement, the Prospectus, the Prospectus, as amended or supplemented, or
other materials, if any, permitted by the Act;
(s) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(t) The accountants who have audited and reported upon the financial
statements filed with the Commission as part of the Registration Statement
and the Prospectus, as amended or supplemented, are independent accountants
as required by the Act and the regulations thereunder. The consolidated
financial statements and schedules (including the related notes) included
or incorporated by reference in the Registration Statement or Prospectus,
as amended or supplemented, fairly present the consolidated financial
position, the results of operations and changes in financial condition of
the entity or entities to which such statements relate at the respective
dates and for the respective periods to which they apply. Such financial
statements have been prepared in accordance with generally accepted
accounting principles consistently applied, except as set forth in the
Registration Statement and Prospectus, as amended or supplemented. The
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus, as amended or supplemented, are
fairly presented and have been prepared on a basis consistent with such
financial statements and the books and records of the entities purported to
be shown thereby; and
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<PAGE>
(u) Neither the Issuer nor the Company is an "investment company"
required to register under, or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended, nor will be
required to so register, nor will be such after giving effect to the
transactions contemplated hereby.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the Prospectus,
as amended or supplemented.
4. Delivery to the Underwriters of and payment for the Firm
Securities shall be made at the place and time and date specified in the
applicable Pricing Agreement or at such other place and time and date as the
Representatives and the Issuer may agree upon in writing, such time and date
being herein called the "Time of Delivery" for the Firm Securities.
Delivery to the Underwriters of and payment for any Option Securities
shall be made at the place specified in the applicable Pricing Agreement at such
time and date (the "Option Time of Delivery"), which may be the same as the Time
of Delivery but shall in no event be earlier than the Time of Delivery nor
earlier than three nor later than ten business days after the giving of the
notice hereinafter referred to, as shall be specified in a written notice from
the Representatives on behalf of the Underwriters to the Issuer of the
determination of the Underwriters to purchase a number, specified in such
notice, of Option Securities. Such notice may be given to the Issuer within 30
days after the date of the applicable Pricing Agreement.
Except as set forth in the Pricing Agreement, one or more fully-
registered global certificates for the Firm Securities and Option Securities to
be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form registered in the name of the nominee of The
Depository Trust Company, shall be delivered by or on behalf of the Issuer to
The Depository Trust Company, which shall release such Firm Securities and
Option Securities to the accounts of the Representatives for the account of such
Underwriter, at the Time of Delivery or the Option Time of Delivery, as the case
may be, against payment by such Underwriter or on its behalf of the purchase
price therefor by certified or official bank check or checks, payable to the
order of the Issuer in the funds specified in such Pricing Agreement.
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<PAGE>
5. Each of the Issuer and the Company jointly and severally agrees
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus, as
amended or supplemented, after the date of the Pricing Agreement relating
to such Designated Securities and prior to the later of the Time of
Delivery or the Option Time of Delivery, if any, for the Designated
Securities which shall be disapproved by the Representatives for the
Designated Securities promptly after reasonable notice thereof; to advise
the Representatives promptly of any such amendment or supplement after the
Time of Delivery, if any, and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Designated Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Preferred Securities
and the Guarantee, of the suspension of the qualification of such Preferred
Securities or the Guarantee for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Preferred Securities and the Guarantee or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Preferred Securities
and the Guarantee for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein
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<PAGE>
in such jurisdictions for as long as may be necessary to complete the
distribution of such Preferred Securities, the Guarantee and the Junior
Subordinated Debentures provided that in connection therewith neither the
Issuer nor the Company shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus, as
amended or supplemented, in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Preferred Securities and the Guarantee and if at such time any event shall
have occurred as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange
Act, to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance;
(d) In the case of the Company, to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the date, after the later of the Time of Delivery or the
Option Time of Delivery, if any, on which the distribution of the
Designated Securities ceases as determined by Goldman Sachs & Co. and (ii)
the date which is 90 days after the later of the Time of Delivery or the
Option Time of Delivery, if any, for the Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any Preferred
Securities, any preferred stock or any other securities of the Issuer or
the Company which are substantially similar to such Designated Securities
or any securities convertible into or
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<PAGE>
exchangeable for Preferred Securities, preferred stock or substantially
similar securities of either the Issuer or the Company without the prior
written consent of the Representatives;
(f) To the extent necessary to comply with New York Stock Exchange
rules and regulations or the rules and regulations of any other exchange on
which the Preferred Securities are listed, to furnish to the holders of
Preferred Securities as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries audited by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the first such fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its Subsidiaries for such quarter
in reasonable detail;
(g) To cause the Designated Securities to be approved for listing
subject only to official notice of issuance on the New York Stock Exchange;
(h) To use its best efforts to list the Junior Subordinated
Debentures on the New York Stock Exchange in connection with the
distribution of such debentures to holders of Preferred Securities; and
(i) The Issuer will apply the net proceeds of the sale of the
Designated Securities as set forth in the Prospectus, as amended or
supplemented.
6. The Issuer and the Company jointly and severally covenant and
agree with the several Underwriters that the Issuer and the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Issuer's and the Company's counsel and accountants in connection with the
registration of the Preferred Securities, the Guarantee and the Junior
Subordinated Debentures under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Blue Sky and/or Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Designated Securities; (iii) all expenses in
connection with the qualification of the Preferred Securities, the Guarantee and
the Junior Subordinated Debentures for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the
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<PAGE>
Blue Sky and/or legal investment surveys; (iv) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Designated Securities; (v) the cost of preparing
certificates for the Preferred Securities, including all taxes on the transfer
and sale of the Preferred Securities; (vi) the fees and expenses of any transfer
agent and registrant for the Preferred Securities; (vii) any fees charged by
securities services for rating the Preferred Securities; (viii) all costs and
expenses incident to listing the Preferred Securities on the New York Stock
Exchange and the cost of registering the Preferred Securities under Section 12
of the Exchange Act; (ix) the cost of qualifying the Preferred Securities with
The Depository Trust Company; and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Issuer and the
Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery and the Option
Time of Delivery for the Designated Securities, true and correct, the condition
that the Issuer and the Company shall have performed all of their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus, as amended or supplemented, in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Designated Securities,
the Registration Statement, the Prospectus, as amended or supplemented, and
other related matters as the
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<PAGE>
Representatives may reasonably request, such counsel being able to rely on
the opinions, dated the Time of Delivery for the Designated Securities, of
Richards, Layton & Finger, P.A. or on the opinions, dated the Time of
Delivery for the Designated Securities, of local counsel, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Blackwell Sanders Matheny Weary & Lombardi L.C., counsel for the
Issuer and the Company, shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for the Designated Securities,
in form and substance satisfactory to the Representatives and their
counsel, to the effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, has
duly obtained or has succeeded to and holds all material franchises
and other governmental and corporate authority necessary to carry on
the public utility business in which it is engaged and to own, lease
and operate the properties in use in such business and the maintenance
of such franchises and other authority is not subject to any
burdensome restriction or condition of an unusual character (except as
described in the Registration Statement);
(ii) Each Subsidiary of the Company (other than West Kootenay
Power, Ltd., United Gas Company Limited, UtiliCorp British Columbia,
Ltd., UtiliCorp Energy Limited, UtiliCorp U.K., Limited and WEL Energy
Group Limited) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure so to qualify
would have a materially adverse effect on the condition (financial or
other), results of operations, business, prospects, net worth or
assets of the Company and its Subsidiaries taken as a whole;
(iii) All of the limited partnership interests of the Issuer
(other than the Preferred Securities) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) The Guarantee has been duly authorized and when validly
executed and delivered by the Company will constitute a legal, valid
and binding obligation of the Company, enforceable in accordance with
its terms,
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<PAGE>
except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting the enforcement of creditors'
rights and remedies generally, as from time to time in effect, and by
applicable principles of equity and considerations of public policy
(regardless of whether enforceability is considered in a proceeding in
equity or at law); and the Guarantee will conform to the description
thereof in the Prospectus, as amended or supplemented;
(v) The Subordinated Indenture and the Junior Subordinated
Debentures to be issued thereunder, have been duly authorized; the
Subordinated Indenture has been duly qualified under the Trust
Indenture Act, and, at the Time of Delivery will have been duly
executed and delivered and will constitute, and the Junior
Subordinated Debentures, when duly executed and authenticated in
accordance with the Subordinated Indenture and issued and delivered
under the circumstances provided in the Prospectus, as amended or
supplemented, will constitute, valid and legally binding obligations
of the Company enforceable in accordance with their terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights and remedies generally,
as from time to time in effect, and by applicable principles of equity
and considerations of public policy (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
the Subordinated Indenture conforms and the Junior Subordinated
Debentures, when duly executed, authenticated, issued and delivered,
will conform to the descriptions thereof in the Prospectus, as amended
or supplemented;
(vi) The Company has full corporate power and corporate authority
to enter into and perform its obligations under this Agreement and the
Pricing Agreement with respect to the Designated Securities and to
issue the Junior Subordinated Debentures and the Guarantee;
(vii) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by each of the Issuer and the Company;
(viii) The orders of the Federal Energy Regulatory Commission, the
Colorado Public Utilities Commission, the Public Service Commission
of West Virginia and the Michigan Public Service Commission
authorizing the issuance and sale of the Preferred Securities, the
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issuance and sale by the Company of the Junior Subordinated Debenture
and the Guarantee are in effect at the Time of Delivery and no other
approval, authorization, consent or order of any federal, state or
local commission or governmental authority (other than under state
securities or Blue Sky laws as to which such counsel is not called
upon to express an opinion) is required for the issuance and sale of
the Preferred Securities, the performance by the Issuer or the Company
of its other obligations under this Agreement or any applicable
Pricing Agreement, the issuance and sale of the Junior Subordinated
Debenture, the Contribution, the issuance and sale of the Short-Term
Junior Subordinated Debenture and the Guarantee, except such as are
specified, obtained and in effect, and the issuance and sale of the
Designated Securities hereunder, the issuance and sale of the Junior
Subordinated Debenture, the Contribution, the issuance and sale of the
Short-Term Junior Subordinated Debenture and the Guarantee, are in
conformity with each such approval, authorization, consent and order;
(ix) After due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the Issuer
or the Company or its Subsidiaries is a party or to which any of the
properties of the Issuer or the Company is subject that is required to
be described in the Registration Statement or the Prospectus, as
amended or supplemented, and is not so described or of any contract or
other document that is required to be described in the Registration
Statement or the Prospectus, as amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not
described or filed as required;
(x) The statements made in the Registration Statement and the
Prospectus, as amended or supplemented, under the captions,
"Description of the Series A Preferred Securities", "Description of
the Series A Junior Subordinated Debentures", "Description of the
Preferred Securities", "Description of the Junior Subordinated
Debentures" and "Plan of Distribution", in Item 15 of the Registration
Statement, in the Company's most recent Annual Report on Form 10-K
under the captions "Business" (but only as to fuel supply contracts)
and "Legal Proceedings", insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings;
(xi) The execution, delivery and performance by the Issuer and
the Company of this Agreement and the
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Pricing Agreement with respect to the Designated Securities, the
execution, delivery and performance by the Company of the Guarantee,
the Subordinated Indenture and the Junior Subordinated Debentures will
not contravene any provision of applicable law or the charter or the
by-laws of the Company or any agreement or other instrument binding
upon the Issuer or the Company;
(xii) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus,
as amended or supplemented;
(xiii) The documents incorporated by reference in the Prospectus,
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xiv) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending before or contemplated by the
Commission and all filings required by Rule 424 under the Act have
been made; the Registration Statement and the Prospectus, as amended
or supplemented, and any further amendments and supplements thereto
made by either the Issuer or the Company prior to the Time of Delivery
for the Designated Securities (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder; they
have no reason to believe that, as of its effective date,
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the Registration Statement or any further amendment thereto made by
either the Issuer or the Company prior to the Time of Delivery for the
Designated Securities (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus, as amended or supplemented, or any further amendment or
supplement thereto made by either the Issuer or the Company prior to
the Time of Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading or that, as of the Time of Delivery for the
Designated Securities, either the Registration Statement or the
Prospectus, as amended or supplemented, or any further amendment or
supplement thereto made by either the Issuer or the Company prior to
the Time of Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus, as amended or supplemented, or required to be
described in the Registration Statement or the Prospectus, as amended
or supplemented, which are not filed or incorporated by reference or
described as required; and
(xv) Under current law and interpretations of current law issued
by the Commission, neither the Issuer nor the Company is an
"investment company" required to register under, or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended, nor will be required to so register,
nor will be such after giving effect to the transactions contemplated
hereby.
In giving the foregoing opinions, such counsel may rely on (1) the
opinion of Richards, Layton & Finger, with respect to all matters of
Delaware law, (2) the opinions of local counsel, with respect to the
opinion set forth in
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paragraph (i) above, and (3) the opinions of local counsel and the opinion
of McCarthy, Sweeney & Harkaway, P.C., with respect to the opinion set
forth in paragraph (viii) above. Such counsel shall state that you and
they are justified in relying on such opinions, policies and certificates.
(d) Richards, Layton & Finger, P.A., special Delaware counsel for the
Issuer and the Company, shall have furnished to the Representatives their
written opinion, limited to the laws of the State of Delaware and dated the
Time of Delivery for the Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Issuer has been duly formed and is validly existing in
good standing as a limited partnership under the Partnership Act, and
all filings required as of the Time of Delivery for the Designated
Securities under the Partnership Act with respect to the formation and
valid existence of the Issuer as a limited partnership have been made;
(ii) Under the Limited Partnership Agreement and the Partnership
Act, the Issuer has all necessary partnership power and authority to
own its properties and conduct its business, all as described in the
Prospectus, as amended or supplemented;
(iii) Assuming that the limited partners of the Issuer that hold
the Preferred Securities (the "Preferred Security Holders"), as
limited partners of the Issuer, do not participate in the control of
the business of the Issuer, the Preferred Securities issued to the
Preferred Security Holders have been duly and validly authorized and
are validly issued and, subject to the qualifications set forth
herein, are fully paid and nonassessable limited partner interests in
the Issuer, as to which the Preferred Security Holders, as limited
partners of the Issuer, will have no liability in excess of their
obligations to make payments provided for in the Limited Partnership
Agreement and their share of the Issuer's assets and undistributed
profits (subject to the obligation of a Preferred Security Holder to
repay any funds wrongfully distributed to it);
(iv) There are no provisions in the Limited Partnership Agreement
the inclusion of which, subject to the terms and conditions therein,
or, assuming that the Preferred Security Holders, as limited partners
of the Issuer, take no action other than actions permitted by the
Limited Partnership Agreement, the exercise of which, in accordance
with the terms and conditions therein, would cause the Preferred
Security Holders, as limited partners of the Issuer, to be deemed to
be
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participating in the control of the business of the Issuer;
(v) Under the Partnership Act and the Limited Partnership
Agreement, the execution and delivery by the Issuer of this Agreement
and the Pricing Agreement, and the performance by the Issuer of its
obligations under this Agreement and the Pricing Agreement, have been
duly authorized by all necessary partnership action on the part of the
Issuer;
(vi) Under the Partnership Act and the Limited Partnership
Agreement, the Company, as general partner of the Issuer, has all
necessary power and authority to execute and deliver this Agreement
and the Pricing Agreement on behalf of the Issuer;
(vii) Under the Partnership Act and the Limited Partnership
Agreement, the Company, as general partner of the Issuer, has executed
and delivered this Agreement and the Pricing Agreement on behalf of
the Issuer;
(viii) The issue and sale by the Issuer of the Preferred Securities,
the compliance by the Issuer with all of the provisions of this
Agreement and the Pricing Agreement, and the consummation of the
transactions herein and therein contemplated, will not violate (a) the
Certificate of Limited Partnership of the Issuer or the Limited
Partnership Agreement or (b) any Delaware statute, rule or regulation;
(ix) Assuming that the Issuer derives no income from or connection
with sources within the State of Delaware and has no assets,
activities (other than the maintenance of a registered office and
registered agent in the State of Delaware and the filing of documents
with the Secretary of State) or employees in the State of Delaware, no
consent, approval, authorization, order, registration or qualification
of or with any Delaware court or Delaware governmental agency or body
is required to be obtained by the Issuer solely in connection with the
issuance and sale by the Issuer of the Preferred Securities pursuant
to this Agreement and the Pricing Agreement;
(x) The Limited Partnership Agreement constitutes a legal, valid
and binding agreement of the Company, and is enforceable against the
Company, in its capacity as general partner of the Issuer, in
accordance with its terms, subject to the effect upon the Limited
Partnership Agreement of (i) bankruptcy, insolvency, reorganization,
moratorium, receivership, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights of creditors
generally, and
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(ii) principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law); provided, however, that
such counsel shall not be required to express any opinion on the
effect upon the Limited Partnership Agreement of applicable law
relating to fiduciary duties;
(xi) The execution and delivery by the Issuer of this Agreement
and the Pricing Agreement, and the performance by the Issuer of its
obligations under this Agreement and the Pricing Agreement, do not
violate the Limited Partnership Agreement or the Partnership Act;
(xii) Such counsel has reviewed the statements in the Prospectus,
as amended or supplemented, under the caption "UtiliCorp Capital"
and, insofar as it contains statements of Delaware law, such
statements are fairly presented; and
(xiii) Under the Limited Partnership Agreement and the Partnership
Act, the Issuer has all necessary partnership power and authority to
execute and deliver, and to perform its obligations under this
Agreement and the Pricing Agreement.
(e) Blackwell Sanders Matheny Weary & Lombardi L.C., special tax
counsel for the Issuer and the Company, shall have furnished to the
Representatives at each Time of Delivery their written opinion confirming
their opinion as to tax matters set forth in the Prospectus, as amended or
supplemented.
(f) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for the Designated Securities,
Arthur Andersen LLP and any of the other independent accountants of the
Company or the Subsidiaries who have certified the financial statements of
the Company and/or the Subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to the Representatives a
letter, dated the date of the Pricing Agreement, and a letter, dated such
Time of Delivery, respectively, to the effect set forth in Annex II hereto,
and as to such other matters as the Representatives may reasonably request
and in form and substance satisfactory to the Representatives;
(g) (i) The Issuer, the Company or any of the Subsidiaries shall not
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, as amended or
supplemented, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus, as amended
or
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supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus, as amended or supplemented, there shall not
have been any material change in the capital stock, or material increase
in the short-term debt or long-term debt, of the Company or any of its
Subsidiaries or any change, or any development involving, or which may
reasonably be expected to involve, a prospective change in or affecting the
condition (financial or other), results of operations, business, prospects,
net worth or assets of the Company and its Subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, as amended
or supplemented, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus, as amended or
supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preference stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implication, its rating of
any of the Company's debt securities or preference stock;
(i) There shall have been furnished to you the opinion (addressed to
you, as Representatives of the several Underwriters) of McCarthy, Sweeney &
Harkaway, P.C., special regulatory counsel for the Company, dated the Time
of Delivery for the Designated Securities and in form and substance
satisfactory to the Representatives and their counsel, to the effect that
the statements in the Company's most recent Annual Report on Form 10-K
under the caption "Regulation" which relate to Federal Energy Regulatory
Commission matters insofar as such statements constitute a summary of the
legal matters, documents and proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings;
(j) The Federal Energy Regulatory Commission, the Colorado Public
Utilities Commission, the Public Service Commission of West Virginia and
the Michigan Public Service Commission and any other commission or
governmental authority having jurisdiction over any of the Company's public
utility businesses shall have issued all approvals, authorizations,
consents and orders (the "Regulatory Actions") required thereby for the
issuance and sale of the Preferred Securities, the performance by the
Issuer and the Company of its other obligations under this Agreement and
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the Pricing Agreement relating to such Designated Securities, the issuance
and sale by the Company of the Junior Subordinated Debenture, the
Contribution, the issuance and sale by the Company of the Short-Term Junior
Subordinated Debenture, and the Guarantee; each Regulatory Action shall be
in effect; no proceedings to suspend the effectiveness of any Regulatory
Actions shall be pending or threatened; no Regulatory Action shall contain
any provision or condition that is unacceptable to the Underwriters; and
the issuance and sale of the Preferred Securities to the Underwriters
hereunder, the issuance and sale of the Junior Subordinated Debentures, the
Contribution, the issuance and sale of the Short-Term Junior Subordinated
Debentures and the Guarantee shall be in conformity with each Regulatory
Action;
(k) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of the general partner of the Issuer and of the
chief executive officer or the chief financial officer of the Company (or
such other officer as is acceptable to you) satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Issuer and the Company herein at and as of such Time of Delivery, as to
the performance by the Issuer and the Company of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a), (g) and (j) of this Section and as to
such other matters as the Representatives may reasonably request;
(l) The Preferred Securities shall have been approved for listing,
subject only to official notice of issuance, on the New York Stock
Exchange; and
(m) A Special Event (as defined in the Prospectus, as amended or
supplemented) shall not have occurred and be continuing; provided that it
shall also be a condition of the obligations of the Company and the Issuer
hereunder to issue and sell the Designated Securities that a Special Event
shall not have occurred and be continuing.
The several obligations of the Underwriters to purchase Option
Securities pursuant to a Pricing Agreement are subject to the satisfaction
on and as of the Option Time of Delivery specified therein of the
conditions set forth in this Section 7, except that, if the Option Time of
Delivery is other than the Time of Delivery, the certificates, opinions and
letters referred to in paragraphs (b), (c), (d), (e), (f), (i) and (k)
shall be dated the Option Time of Delivery and the opinions called for by
paragraphs (b), (c), (e), (f) and (i) shall be revised to reflect the sale
of the Option Securities.
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8. (a) The Issuer and the Company will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, as amended or
supplemented, and any other prospectus relating to the Preferred Securities
and the Guarantee, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that neither the Issuer nor the
Company shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, as amended or supplemented, and any
other prospectus relating to the Preferred Securities and the Guarantee, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Issuer and the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus, as amended or supplemented, relating to such
Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the Issuer and
the Company against any losses, claims, damages or liabilities to which the
Issuer and the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, as amended or supplemented, and any other
prospectus relating to the Preferred Securities and the Guarantee, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
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supplemented and any other prospectus relating to the Preferred Securities
and the Guarantee, or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Issuer and the
Company by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Issuer and the Company for any legal or
other expenses reasonably incurred by the Issuer and the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer and the
Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each indemnifying
party
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shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Issuer and the Company on the
one hand and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits
received by the Issuer and the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from such offering (before deducting expenses)
received by the Issuer and the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Issuer and the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Issuer, the Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Designated Securities and not joint.
(e) The obligations of the Issuer and the Company under this
Section 8 shall be in addition to any liability
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which the Issuer and the Company may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Issuer
and the Company and to each person, if any, who controls the Issuer and the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Firm Securities or Option Securities which it
has agreed to purchase under the Pricing Agreement relating to the
Designated Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties, to purchase such Firm
Securities or Option Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Firm Securities or Option
Securities, then the Issuer and the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Firm
Securities or Option Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Issuer and
the Company that they have so arranged for the purchase of such Firm
Securities or Option Securities, or the Issuer or the Company notifies the
Representatives that it has so arranged for the purchase of such Firm
Securities or Option Securities, the Representatives or the Issuer or the
Company shall have the right to postpone the Time of Delivery or the Option
Time of Delivery, as the case may be, for such Firm Securities or Option
Securities for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, as amended or supplemented, or in any other
documents or arrangements, and the Issuer and the Company agree to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to
the Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Securities or Option Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Issuer and the Company as
provided in subsection (a) above, the aggregate number of shares of such
Firm Securities or Option Securities which remains unpurchased does not
exceed one-eleventh of the aggregate
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number of Firm Securities or the Option Securities, as such case may be,
then the Issuer and the Company shall have the right to require each non-
defaulting Underwriter to purchase the number of Firm Securities or Option
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to the Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of shares of the Firm Securities or Option Securities
which such Underwriter agreed to purchase under such Pricing Agreement) of
the Firm Securities or the Option Securities, as such case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Securities or Option Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Issuer and the Company as
provided in subsection (a) above, the aggregate number of Firm Securities
or Option Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Firm Securities or the Option Securities,
as the case may be, as referred to in subsection (b) above, or if the
Issuer and the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Firm
Securities or Option Securities, as the case may be, of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Firm or Option Securities shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Issuer or the Company,
except for the expenses to be borne by the Issuer, the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. This Agreement and any applicable Pricing Agreement shall be
subject to termination in the absolute discretion of the Representatives,
without liability on the part of any Underwriter of the Designated Securities
relating to such Pricing Agreement by notice to the Issuer and the Company, if
prior to the Time of Delivery for the Designated Securities or the Option Time
of Delivery (if different from the Time of Delivery and then only as to the
Option Securities), as the case may be, there shall have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York or Missouri declared by either Federal
or New York State or Missouri State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war if the effect of any
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such event specified in this Clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Issuer and the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Issuer, the Company, or any officer or director or
controlling person of the Issuer or the Company, and shall survive delivery of
and payment for the Designated Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Issuer and the Company shall not then be under any liability to
any Underwriter with respect to the Firm Securities or Option Securities covered
by such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Designated Securities are not delivered by or on
behalf of the Issuer (or the Guarantee is not concurrently issued by the
Company) as provided herein, the Issuer and the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Issuer and the Company
shall then be under no further liability to any Underwriter
with respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
13. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Issuer, shall be delivered c/o UtiliCorp United
Inc., 911 Main, P.O. Box 13287, Kansas City, Missouri 64199-3287, Attention:
President, and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to UtiliCorp United Inc., 911 Main, P.O. Box 13287,
Kansas City, Missouri 64199-3287, Attention: President; provided, however,
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that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Issuer or
the Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Issuer and the
Company and, to the extent provided in Section 8 and Section 11 hereof the
officers and directors of the Company and each person who controls the Issuer or
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Designated Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original but all such respective
counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us five (5) counterparts hereof.
Very truly yours,
UTILICORP CAPITAL L.P.
By: UTILICORP UNITED INC.,
General Partner
By:
------------------------
Name:
Title:
UTILICORP UNITED INC.
By:
------------------------
Name:
Title:
Confirmed as of the date first above mentioned.
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
As Representatives of the
several Underwriters
By:
-----------------------
(Goldman, Sachs & Co.)
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ANNEX I
PRICING AGREEMENT
________________, 1995
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
As Representatives of the
several Underwriters
c/o GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
UtiliCorp Capital L.P., a Delaware limited partnership (the "Issuer"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ______________, 1995 (the "Underwriting
Agreement"), between the Issuer and Utilicorp United Inc., a Delaware
corporation (the "Company") on the one hand and Goldman, Sachs & Co., Dean
Witter Reynolds Inc., PaineWebber Incorporated and Smith Barney Inc. on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Preferred Securities (including the Guarantee)
specified in Schedule II hereto (the "Firm Securities"). In addition, solely
for the purpose of covering over-allotments, the Issuer proposes to issue and
sell to the Underwriters, subject to the terms and conditions stated herein and
in the Underwriting Agreement, its Preferred Securities specified in Schedule II
hereto (the "Option Securities"). The Firm Securities, the Option Securities
and the Guarantee are hereinafter collectively called the "Designated
Securities". Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus,
as amended or supplemented, relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of
<PAGE>
the Underwriters of the Designated Securities pursuant to Section 13 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 13 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Issuer agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Issuer, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the number of Firm Securities set forth opposite the names of such Underwriter
in Schedule I hereto. Subject to the terms and conditions set forth herein and
in the Underwriting Agreement incorporated herein by reference, the Issuer also
agrees to issue and sell to each of the Underwriters, and the Underwriters shall
have the right to purchase from the Issuer, up to the number of Option
Securities set forth in Schedule II hereto. The Option Securities may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Securities. If any Option Securities are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Issuer the number of Option Securities (subject to such adjustments as you
may determine in order to avoid fractional shares) which bears the same
proportion to the number of Option Securities to be sold by the Issuer as the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Securities increased as set forth in
Section 9 hereof) bears to the total number of Firm Securities.
The Company hereby guarantees the timely performance by the Issuer of
its obligations under this Pricing Agreement and the Underwriting Agreement. As
compensation to the Underwriters for their commitments hereunder, and in view of
the fact that the proceeds of the sale of the Preferred Securities will be
invested in Junior Subordinated Debentures, the Company hereby agrees to pay at
the Time of Delivery of the Designated Securities to the Representatives for the
accounts of the several Underwriters an amount or amounts set forth in Schedule
II hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us five (5) counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Issuer and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the
-2-
<PAGE>
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Issuer and the Company for examination upon request,
but without warranty on the part of the Representatives as to the authority of
the signers thereof.
Very truly yours,
UTILICORP CAPITAL L.P.
By: UTILICORP UNITED INC.
General Partner
By:
------------------------------
Name:
Title:
UTILICORP UNITED INC.
By:
------------------------------
Name:
Title:
Confirmed as of the date
first above mentioned on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
PAINEWEBBER INCORPORATED
SMITH BARNEY INC.
As Representatives of the
several Underwriters
By:
------------------------------------
(Goldman, Sachs & Co.)
-3-
<PAGE>
SCHEDULE I
Maximum Number
of Option
Securities to be
Number of Purchased if
Firm Securities Maximum Option
Underwriter Purchased to be Purchased Exercised
--------------------- --------------- ----------------
Goldman, Sachs & Co. . . . . .
Dean Witter Reynolds Inc.. . .
PaineWebber Incorporated . . .
Smith Barney, Inc... . . . . .
____________
Total . . . . . . . . . .
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
REGISTRATION STATEMENT:
Registration Statement No. 33-
NUMBER OF FIRM SECURITIES:
NUMBER OF OPTION SECURITIES:
GUARANTEE:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
COMMISSION PAYABLE TO UNDERWRITERS:
$____ Per Designated Security ($____ Per Designated Security Sold to Certain
Institutions)
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
DIVIDEND RATE:
__% of the stated liquidation preference of $25 per Designated Security per
annum
DIVIDEND PAYMENT DATES:
DIVIDEND RIGHTS:
VOTING RIGHTS:
LIQUIDATION RIGHTS:
REDEMPTION PROVISIONS:
STOCK EXCHANGE LISTING:
New York Stock Exchange
TIME OF DELIVERY:
CLOSING LOCATION:
<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVES:
Goldman, Sachs & Co.
Dean Witter Reynolds Inc.
PaineWebber Incorporated
Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
[OTHER TERMS]:
<PAGE>
ANNEX II
Pursuant to Section 7(f), of the Underwriting Agreement, each of the
independent accountants shall furnish letters to the Underwriters to the effect
that, severally:
(i) They are independent certified public accountants with respect to
the Company and/or its Subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and/or the Subsidiaries audited and
reported upon by such accountants and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the regulations
thereunder with respect to registration statements on Form S-3 and the
Exchange Act and the regulations thereunder;
(iii) With respect to the entity and entities for which such
accountants have certified the financial statements of the Company and/or
the Subsidiaries included or incorporated by reference in the Registration
Statement (hereinafter, with respect to each of such accountants severally
referred to as an "Audited Entity"), they have performed specified
procedures, not constituting an audit, including a reading of all of the
available interim consolidated financial statements of the Audited Entity
since the end of the most recent fiscal year with respect to which an audit
report has been issued, inquiries of and discussions with certain officials
of the Audited Entity and certain of its subsidiaries responsible for
financial and accounting matters with respect to the unaudited consolidated
financial statements incorporated by reference in the Registration
Statement and Prospectus, as amended or supplemented, and all of the
available interim unaudited consolidated financial statements of the
Audited Entity since the end of the most recent fiscal year, and such other
inquiries and procedures as may be specified in such letter, and on the
basis of such inquiries and procedures nothing came to such accountants'
attention that caused them to believe that: (A) the unaudited consolidated
financial statements of the Audited Entity incorporated by reference in the
Registration Statement and Prospectus, as amended or supplemented, do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations thereunder
or were not fairly presented on a basis substantially consistent with that
of the corresponding audited financial statements incorporated by reference
therein, or (B) at a specified date not more than five days prior to the
date of such letter, there was any change in the outstanding capital stock
(in the
<PAGE>
case of a corporation) of the Audited Entity or consolidated long-term debt
of the Audited Entity, or any increase in preferred stock of the Audited
Entity, in each case as compared with the amounts shown on the most recent
consolidated balance sheet of the Audited Entity incorporated by reference
in the Registration Statement and Prospectus, as amended or supplemented,
except in each such case as set forth in or contemplated by the
Registration Statement and Prospectus, as amended or supplemented, or
except for such exceptions enumerated in such letter as shall have been
agreed to by the Underwriters, the Issuer and the Company; and
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented, and the limited procedures referred
to in clause (iii) above, such accountants have carried out certain other
specified procedures, not constituting an audit, with respect to certain
financial information which is included or incorporated by reference in the
Registration Statement and Prospectus, as amended or supplemented, which
are specified by the Underwriters or their counsel, and have found such
financial information to be in agreement with the relevant accounting,
financial and other records of the Audited Entity identified in such
letter.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus, as amended or supplemented (including the documents
incorporated by reference therein), in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
-2-
<PAGE>
=======================================================
UTILICORP UNITED INC.
and
UMB BANK, N.A.,
Trustee
___________________
INDENTURE
Dated as of , 1995
___________________
Junior Subordinated Debentures
=======================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939, as
amended and Indenture, dated as of ________________, 1995
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a) ................................ 609
(b) ................................ 608, 610
(c) ................................ Not Applicable
Section 311(a) ................................ 613(a)
(b) ................................ 613(b)
(c) ................................ Not Applicable
Section 312(a) ................................ 701, 702(a)
(b) ................................ 702(b)
(c) ................................ 702(c)
Section 313(a) ................................ 703(a)
(b) ................................ 703(b)
(c) ................................ 703(a), 703(b)
(d) ................................ 703(c)
Section 314(a) ................................ 704
(b) ................................ Not Applicable
(c) ................................ 102
(d) ................................ Not Applicable
(e) ................................ 102
Section 315(a) ................................ 601(a)
(b) ................................ 602, 703(a)(8)
(c) ................................ 601(b)
(d) ................................ 601(c)
(e) ................................ 514
Section 316(a) ................................ 502, 512,513
(b) ................................ 508
(c) ................................ 104(e)
Section 317(a) ................................ 503, 504
(b) ................................ 1003
Section 318(a) ................................ 107
- ----------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
----------
Page
----
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION. . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request" or "Company Order . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 3
corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Debenture Register" and "Debenture Registrar" . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . . . 4
Limited Partnership Agreement. . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Debenture. . . . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Debenture. . . . . . . . . . . . . . . . . . . . . . . 6
Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . 6
- ---------------
*NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
Regular Record Date. . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer. . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations. . . . . . . . . . . . . . . . . . . . 7
UtiliCorp Capital. . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 11
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . 12
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . 12
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . 12
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . 12
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 12
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 12
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
DEBENTURE FORMS . . . . . . . . . . . . . . 13
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE. . . . . . . . . . . . . . . 14
THE DEBENTURES. . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . 16
SECTION 304. Temporary Debentures. . . . . . . . . . . . . . . . . . 18
SECTION 305. Registration, Registration of Transfer and Exchange . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debentures. . . . 21
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . 21
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 23
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 24
ii
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE. . . . . . . . . . . . 24
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . 24
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . 25
SECTION 403. Satisfaction, Discharge and Defeasance of Debentures
of any Series . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . 28
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 28
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . 30
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . 32
SECTION 505. Trustee May Enforce Claims Without Possession of
Debentures. . . . . . . . . . . . . . . . . . . . . . 33
SECTION 506. Application of Money Collected. . . . . . . . . . . . . 34
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. . . . . . . . . . . . . . . . . 35
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . 36
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . 36
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . 36
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 37
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . 38
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . 38
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . 39
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 40
SECTION 604. Not Responsible for Recitals or Issuance of
Debentures. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 605. May Hold Debentures . . . . . . . . . . . . . . . . . . 41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . 42
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . 49
iii
<PAGE>
SECTION 610. Resignation and Removal; Appointment of Successor . . . 49
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . 51
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 613. Preferential Collection of Claims Against Company . . . 52
SECTION 614. Authenticating Agents . . . . . . . . . . . . . . . . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . 59
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 702. Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . 60
SECTION 704. Reports by Company. . . . . . . . . . . . . . . . . . . 62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE . . . . . . 63
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. . 63
SECTION 802. Successor Corporation to be Substituted . . . . . . . . 64
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 64
SECTION 901. Supplemental Indentures without Consent of Holders. . . 64
SECTION 902. Supplemental Indentures with Consent of Holders . . . . 66
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . 67
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 67
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 68
SECTION 906. Reference in Debentures to Supplemental Indentures. . . 68
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . 68
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . 68
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 68
iv
<PAGE>
SECTION 1003. Money for Debentures Payments to Be Held in Trust . . . 69
SECTION 1004. Corporate Existence . . . . . . . . . . . . . . . . . . 70
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . 71
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . 71
SECTION 1007. Statement by Officers as to Default . . . . . . . . . . 71
SECTION 1008. Defeasance of Certain Obligations . . . . . . . . . . . 72
SECTION 1009. Distributions and Payment of Dividends. . . . . . . . . 73
SECTION 1010. Required Capital Contributions. . . . . . . . . . . . . 73
ARTICLE ELEVEN
REDEMPTION OF DEBENTURES . . . . . . . . . . . . 74
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . 74
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . 74
SECTION 1103. Selection by Trustee of Debentures to Be Redeemed . . . 74
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . 75
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . 76
SECTION 1106. Debentures Payable on Redemption Date . . . . . . . . . 76
SECTION 1107. Debentures Redeemed in Part . . . . . . . . . . . . . . 76
ARTICLE TWELVE
SINKING FUNDS. . . . . . . . . . . . . . . 77
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . 77
SECTION 1202. Satisfaction of Sinking Fund Payments with Debentures . 77
SECTION 1203. Redemption of Debentures for Sinking Fund . . . . . . . 78
ARTICLE THIRTEEN
SUBORDINATION OF DEBENTURES . . . . . . . . . . . 79
SECTION 1301. Agreement of Subordination. . . . . . . . . . . . . . . 79
SECTION 1302. Limitations on Payments to Holders. . . . . . . . . . . 79
SECTION 1303. Payments in Bankruptcy. . . . . . . . . . . . . . . . . 80
SECTION 1304. Subrogation of Debentures . . . . . . . . . . . . . . . 81
SECTION 1305. Authorization by Holders. . . . . . . . . . . . . . . . 82
SECTION 1306. Notice to Trustee . . . . . . . . . . . . . . . . . . . 82
SECTION 1307. Trustee's Relation to Senior Indebtedness . . . . . . . 83
SECTION 1308. Acts of Holders of Senior Indebtedness. . . . . . . . . 84
v
<PAGE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
vi
<PAGE>
INDENTURE, dated as of ______________, 1995, between UTILICORP UNITED
INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 911 Main,
Kansas City, Missouri 64105, and UMB Bank, N.A., a national banking association
duly organized and existing under the laws of the United States, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of certain of its junior
subordinated debentures (herein called the "Debentures"), to be issued in one or
more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration
of the premises and the purchase of the Debentures by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Debentures or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as applied in the United States and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or
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permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized to authenticate and
deliver Debentures on behalf of the Trustee pursuant to Section 614.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", means any day other than a day on which banking
institutions in the Borough of Manhattan, the City and State of New York, as the
case may be (depending on whether an office or agency of the Company is being
maintained in either such borough, city or state with respect to the
Debentures), are authorized or obligated by law to remain closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor
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corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, or, if authorized by a power of attorney executed by any of
such officers, by such other person as may be authorized in such power of
attorney, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which at the date hereof is The UMB Bank, N.A., 928 Grand Avenue, Kansas City,
Missouri 64106.
"corporation" includes corporations, associations, companies and
business trusts.
"Debenture" or "Debentures" has the meaning stated in the first
recital of this Indenture and more particularly means any Debenture
authenticated and delivered under this Indenture.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Debentures of any series
issuable or issued in whole or in part in the form of one or more Global
Debentures, the Person designated as Depository by the company pursuant to
Section 301, which must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided pursuant to Section 301
with respect to the Debentures of a series, any successor to such Person. If at
any time there is more than one such Person, "Depository" shall mean, with
respect to any series of Debentures, the qualifying entity which has been
appointed with respect to the Debentures of that series.
"Event of Default" has the meaning specified in Section 501.
"Global Debenture" means a Debenture evidencing all or part of a
series of Debentures, issued to the Depository for such series or its nominee
and registered in the name of such Depository or nominee.
"Guarantee" means any guarantee that the Company may enter into with
UtiliCorp Capital or other Persons that operate directly or indirectly for the
benefit of holders of limited partnership interests issued by UtiliCorp Capital.
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"Holder" means a Person in whose name a Debenture is registered in the
Debenture Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Debentures established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Debenture which by its terms bears interest only at Maturity, means interest
payable at Maturity.
"Interest Payment Date", when used with respect to any Debenture,
means the Stated Maturity of an installment of interest on such Debenture.
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership of UtiliCorp Capital L.P. dated as of May __,
1995.
"Maturity", when used with respect to any Debenture, means the date on
which the principal of such Debenture or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or regular counsel for the Company, or may be other counsel
satisfactory to the Trustee.
"Original Issue Discount Debenture" means any Debenture which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Debentures, means, as of the
date of determination, all Debentures theretofore authenticated and delivered
under this Indenture, except:
(i) Debentures theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set
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aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Debentures; PROVIDED
that, if such Debentures are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Debentures which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debentures have been
authenticated and delivered pursuant to this Indenture, other than any
such Debentures in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Debentures are held by
a bona fide purchaser in whose hands such Debentures are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debentures have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Debenture that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502, and (b)
Debentures owned by the Company or any other obligor upon the Debentures or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which the Trustee knows to
be so owned shall be so disregarded. Debentures so owned as described in (b)
above which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debentures and that the pledgee is not the
Company or any other obligor upon the Debentures or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debentures on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debentures of any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on the
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Debentures of that series are payable as specified in or as contemplated by
Section 301.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"Preferred Securities" means the preferred securities issued from time
to time by UtiliCorp Capital representing limited partnership interests in
UtiliCorp Capital.
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Debentures of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee, which in each case is assigned to its Corporate Trust
Department, and also means, with respect to a particular corporate trust matter,
any other officer or class of officer authorized by resolution of the board of
the Trustee, or any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Senior Indebtedness" of the Company means the principal of, premium,
if any, interest on and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of this Indenture or thereafter
incurred, created or assumed: (a) all indebtedness of the Company evidenced by
notes, debentures, bonds, or other securities sold by the Company for money, (b)
all indebtedness of others of the kinds described in the preceding clause (a)
assumed by or guaranteed in any manner by the Company or in effect guaranteed by
the Company through an agreement to purchase, contingent or otherwise, and (c)
all renewals, extensions or refundings of indebtedness of the kinds described in
any of the preceding clauses (a) and (b); unless, in the case of any particular
indebtedness, renewal,
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extension or refunding, the instrument creating or evidencing the same or the
assumption or guarantee of the same expressly provides that such indebtedness,
renewal, extension or refunding is not superior in right of payment to or is
pari passu with the Debentures.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means the date specified
in such Debenture as the date on which the principal of such Debenture or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debentures of any series shall mean the Trustee with respect to
Debentures of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of a
holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of
interest on or
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principal of the U.S. Government Obligation evidenced by such depository
receipt.
"UtiliCorp Capital" means UtiliCorp Capital L.P., a Delaware limited
partnership.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president or assistant vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president" or "assistant vice president".
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the Certificate
provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with;
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with; and
(5) a statement that no Event of Default exists under this Indenture.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
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Without limiting the generality of the foregoing, unless otherwise
established in or pursuant to a Board Resolution or set forth or determined in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, pursuant to Section 301, a Holder, including a Depository that is a
Holder of a Global Debenture, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a Depository that is a Holder of a Global
Debenture may provide its proxy or proxies to the beneficial owners of interests
in any such Global Debenture through such Depository's standing instructions and
customary practices.
(b) The fact and date of the execution by any Person of any such
instrument, writing or proxy may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument, writing or proxy acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument, writing or proxy, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Debentures shall be proved by the Debenture
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
(e) If the Company shall solicit from the Holders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding
Debentures of that series have authorized or agreed
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or consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Debentures of that
series shall be computed as of the record date; provided that no such
authorization, agreement or consent by such Holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee upon receipt at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class mail postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Debenture Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable
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to give such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debentures shall be governed by and construed
in accordance with the laws of the State of New York.
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SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Debentures) payment of interest, if
any, or principal (and premium, if any) need not be made on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such date.
ARTICLE TWO
DEBENTURE FORMS
SECTION 201. FORMS GENERALLY.
The Debentures of each series shall be in substantially the form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officer or officers executing such
Debentures, as evidenced by the officer's or officers' execution of the
Debentures. If the form of Debentures of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or Assistant Secretary of the
Company, or any other authorized officer of the Company, and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Debentures.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Debentures shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officer or officers executing such Debentures, as evidenced by
the officer's or officers' execution of such Debentures.
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ARTICLE THREE
THE DEBENTURES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto. There shall be established in or pursuant to a Board
Resolution, and, subject to Section 303, set forth or determined in the manner
provided, in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Debentures of any series:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the Debentures
of the series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of the
series pursuant to Sections 304, 305, 306, 906, or 1107 and except for any
Debentures which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Debenture of the series
shall be payable, if other than the Person in whose name the Debenture (or
one or more Predecessor Debentures) is registered at the close of business
on the regular Record Date for such interest;
(4) the date or dates on which the principal of the Debentures of the
series is payable;
(5) the rate or rates at which the Debentures of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension;
(7) the place or places, if any, in addition to or in the place of
the office of the Trustee in New York, New
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York, where the principal of and premium, if any, and interest, if any, on
Debentures of the series shall be payable and where such Debentures may be
registered or transferred;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which Debentures of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Debentures of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) the form of the Debentures of the series including the form of
Certificate of Authentication for such series;
(11) if other than denominations of $25 or any integral multiple
thereof, the denominations in which Debentures of the series shall be
issuable;
(12) if other than the principal amount thereof, the portion of the
principal amount of Debentures of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies such as
the European Currency Unit, in which payment of the principal of (and
premium, if any) and interest, if any, on the Debentures of the series
shall be payable;
(14) if the principal of and premium, if any, or interest, if any, on
the Debentures of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency other than that in which
the Debentures are stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be made;
(15) if the amount of payments of principal of and premium, if any,
or interest, if any, on the Debentures of the series may be determined with
reference to an index based on a coin or currency other than that in which
the Debentures are stated to be payable, the manner in which such amounts
shall be determined;
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(16) any provisions permitted by this Indenture relating to Events of
Default or covenants of the Company with respect to such series of
Debentures; and
(17) if the Debentures of the series shall be issued in whole or in
part in the form of one or more Global Debentures, (i) whether beneficial
owners of interests in any such Global Debenture may exchange such
interests for Debentures of such series of like tenor and of authorized
form and denomination and the circumstances under which any such changes
may occur, if other than in the manner provided in Section 305 and (ii) the
Depository for such Global Debenture or Debentures; and
(18) any and all other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series, including the form of Debenture of
such series, are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the Secretary
or an Assistant Secretary or other authorized officer of the Company, and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such series
of Debentures.
SECTION 302. DENOMINATIONS.
The Debentures of each series shall be issuable in registered form
without coupons, except as otherwise expressly provided in a supplemental
indenture hereto, in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Debentures of any series, the Debentures of such series shall be issuable in
denominations of $25 or in integral multiples thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debentures shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon, and which need not be attested. The
Debentures of any series shall be executed by such additional officer, if any,
as shall be
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specified pursuant to Section 301. The signature of any of these officers on
the Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signature of any individual
who was at any time the proper officer of the Company shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Debentures or did not hold such office at
the date of authentication of such Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Debentures, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Debentures. If the
form or terms of the Debentures of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Debentures, and accepting the additional responsibilities
under this Indenture in relation to such Debentures, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Debentures has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Debentures have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Debentures, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Debentures if the issue of such Debentures
pursuant to this Indenture will affect the Trustee's own rights, duties,
protections or immunities under the Debentures and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Debentures of a series are not to
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be originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each Debenture of such
series if such documents are delivered at or prior to the time of authentication
upon original issuance of the first Debenture of such series to be issued.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Debenture
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Debenture to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Debenture has never been issued and sold by the
Company, for all purposes of this Indenture such Debenture shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Debentures which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officer or officers executing such Debentures may
determine, as evidenced by their execution of such Debentures.
If temporary Debentures of any series are issued, the Company will
cause definitive Debentures of that series to be prepared without unreasonable
delay. After the preparation of definitive Debentures of such series, the
temporary Debentures of such series shall be exchangeable for definitive
Debentures of such series upon surrender of the temporary Debentures of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon
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surrender for cancellation of any one or more temporary Debentures of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debentures of the same
series and of like tenor of authorized denominations. Until so exchanged the
temporary Debentures of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debentures of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Trustee is
hereby appointed "Debenture Registrar" for the purpose of registering Debentures
and transfers of Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Debentures of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, any Debenture or Debentures of any
series, other than a Global Debenture may be exchanged for other Debentures of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Debentures to be exchanged at
such office or agency. Whenever any Debentures are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Debentures which the Holder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, a Global Debenture of any series shall be
exchangeable pursuant to this Section for Debentures registered in the names of
Persons other than the Depository with respect to such series or its nominee
only as provided in this paragraph. A Global Debenture shall be
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exchangeable pursuant to this Section if (x) such Depository notifies the
Company that it is unwilling or unable to continue as Depository for such series
or at any time ceases to be a clearing agency registered as such under the
Securities Exchange Act of 1934 and a successor Depository for such series is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, (y) the Company
executes and delivers to the Trustee an Officers' Certificate providing that
such Global Debenture shall be so exchangeable or (z) there shall have occurred
and be continuing an Event of Default with respect to the Debentures of such
series. Debentures so issued in exchange for a Global Debenture shall be of the
same series, of like tenor, in authorized denominations and in the aggregate
having the same principal amount as the Global Debenture to be exchanged, and
shall be registered in such names as the Depository for such Global Debenture
shall direct.
Notwithstanding any other provision of this Section, a Global
Debenture may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any nominee to a
successor of such Depository or a nominee of such successor.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Debentures, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Debentures, other
than exchanges pursuant to Sections 304, 906 or 1107 not involving any transfer,
including any penalty for failure to provide requested tax information.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debentures of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Debentures of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Debenture so selected for redemption in whole or in
part, except the unredeemed portion of any Debenture being redeemed in part.
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SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If any mutilated Debenture is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Debenture of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Debenture has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Debenture shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debentures of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest.
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Any interest on any Debenture of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures of such series (or their
respective Predecessor Debentures) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Debenture of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class mail postage prepaid, to each Holder of Debentures
of such series at his address as it appears in the Debenture Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Debentures of such series (or their
respective Predecessor Debentures) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Debentures of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
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Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debenture is registered in the Debenture Register
maintained by the Trustee as the owner of such Debenture for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307) interest, if any, on such Debenture and for all other purposes whatsoever,
whether or not such Debenture be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such person, or upon such person's
order, shall be valid, and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debenture.
No holder of any beneficial interest in any Global Debenture held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Debenture, and such Depository may be treated by the
Company, the Trustee, and any agent of the Corporation or the Trustee as the
owner of such Global Debenture for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depository as holder of any Debenture.
SECTION 309. CANCELLATION.
All Debentures surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Debentures previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Debentures so delivered shall be promptly cancelled by the
Trustee. No Debentures shall be authenticated in lieu of or in exchange for any
Debentures cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Debentures held by the Trustee shall be
disposed of as directed by a Company Order and in accordance with Securities and
Exchange Commission or other applicable regulation pertaining to retention of
cancelled securities.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Debentures of any series, interest, if any, on the Debentures of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Debentures herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (A) all Debentures theretofore authenticated and delivered
(other than (i) Debentures which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Debentures for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Debentures not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, or
(iv) are deemed paid and discharged pursuant to Section 403, as
applicable,
and the Company, in the case of (i), (ii), (iii) or (iv) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount of (a) money in the currency or units of
currency in which such Debentures are payable, or (b) in the case of (ii)
or (iii) above and (except as provided in an indenture supplemental
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hereto) if no Debentures of any series Outstanding are subject to
repurchase at the option of Holders (I) U.S. Government Obligations
(denominated in the same currency or units of currency in which such
Debentures are payable) which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than one day before the Stated Maturity or Redemption Date, as the case may
be, money in an amount, or (II) a combination of money or U.S. Government
Obligations as provided in (I) above, in each case, sufficient to pay and
discharge the entire indebtedness on such Debentures not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the case of
Debentures which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section or if money or U.S. Government Obligations shall have been
deposited with or received by the Trustee pursuant to Section 403, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
(a) Subject to the provisions of the last paragraph of Section 1003,
all money or U.S. Government Obligations deposited with the Trustee pursuant to
Section 401, 403 or 1008 and all money received by the Trustee in respect of
U.S. Government Obligations deposited with the Trustee pursuant to Section 401,
403 or 1008, shall be held in trust and applied by it, in accordance with the
provisions of the Debentures and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent), to the persons entitled thereto, of the principal (and premium, if any)
and interest, if any, for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Section 401, 403 or 1008.
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(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 401, 403 or 1008 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Section 401, 403 or 1008 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited for the
purpose for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the Trustee of any
U.S. Government Obligations held under this Indenture.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF
DEBENTURES OF ANY SERIES.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debentures of any series on the 91st day
after the date of the deposit referred to in subparagraph (e) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Debentures of
such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Debentures of such series to receive,
from the trust funds described in subparagraph (e) hereof, (i) payment of
the principal of (and premium, if any) and each installment of principal of
(and premium, if any) or interest, if any, on the Outstanding Debentures of
such series on the Stated Maturity of such principal or installment of
principal or interest or to and including the Redemption Date irrevocably
designated by the Company pursuant to subparagraph (i) hereof and (ii) the
benefit of any mandatory sinking fund payments applicable to the Debentures
of such series on the day of which such payments are due and payable in
accordance with the terms of this Indenture and the Debentures of such
series;
(b) the Company's obligations with respect to such Debentures of such
series under Sections 305, 306, 1002 and 1003, if the Company shall have
irrevocably designated a Redemption Date pursuant to subparagraph (i)
hereof, Sections 1101, 1104 and 1106 as they apply to such Redemption Date;
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(c) the Company's obligations with respect to the Trustee under
Section 607; and
(d) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 402 and, if the Company shall
have irrevocably designated a Redemption Date pursuant to subparagraph (i)
hereof, Article Eleven and the duty of the Trustee to authenticate
Debentures of such series on registration of transfer or exchange;
PROVIDED that, the following conditions shall have been satisfied:
(e) the Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) and the last paragraph of Section
1003) with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Debentures of such series, (i) money, in the currency or units of currency
in which such Debentures are payable, in an amount, or (ii) (except as
provided in a supplemental indenture with respect to such series) if
Debentures of such series are not subject to repurchase at the option of
Holders, (A) U.S. Government Obligations (denominated in the same currency
or units of currency in which such Debentures are payable) which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the due date of any
payment referred to in clause (x) or (y) of this subparagraph (e) money in
an amount or (B) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest, if any, on the
Outstanding Debentures of such series on the Stated Maturity of such
principal or installment of principal or interest or to and including the
Redemption Date irrevocably designated by the Company pursuant to
subparagraph (i) hereof and (y) any mandatory sinking fund payments
applicable to the Debentures of such series on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and of the Debentures of such series;
(f) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that such provision would not cause any Outstanding Debentures
of such series then listed on any national securities exchange to be
delisted as a result thereof;
(g) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by
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reason of such deposit) with respect to the Debentures of such series shall
have occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(h) the Company has delivered to the Trustee an unqualified opinion,
in form and substance satisfactory to the Trustee, of independent counsel
selected by the Company and satisfactory to the Trustee to the effect that
(i) Holders of the Debentures will not recognize income, gain or loss for
Federal income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts and
in the same manner and at the same times as would have been the case if
that deposit, defeasance and discharge had not occurred and (ii) the
defeasance trust is not, or is registered as, an investment company under
the Investment Company Act of 1940;
(i) if the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Debentures of a
series to and including a Redemption Date on which all of the Outstanding
Debentures of such series are to be redeemed, such Redemption Date shall be
irrevocably designated by a Board Resolution delivered to the Trustee on or
prior to the date of deposit of such money or U.S. Government Obligations,
and such Board Resolution shall be accompanied by an irrevocable Company
Request that the Trustee give notice of such redemption in the name and at
the expense of the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with Section 1104; and
(j) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
Debentures have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Debentures of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be affected
by operation of law or pursuant to any judgment, decree or order of any court
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or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Debenture of that
series when it becomes due and payable, and continuance of such default for
a period of 10 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Debenture of that series at its Maturity upon redemption, by
declaration or otherwise; or
(3) default in the payment of any sinking fund installment, when and
as due by the terms of a Debenture of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Debentures other than
that series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Debentures of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under applicable United States Federal or State law,
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency or other
similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company in an involuntary
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case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) so long as any series of Debentures issued in connection with the
application of the proceeds from the issuance and sale of a series of
Preferred Securities of UtiliCorp Capital remain outstanding, UtiliCorp
Capital shall have dissolved, wound up its business or otherwise terminated
its existence except in connection with the distribution of Debentures to
limited partners of UtiliCorp Capital in liquidation of their interest in
UtiliCorp Capital and in connection with certain mergers, consolidations,
amalgamations, replacements, conveyances, transfers or leases permitted by
the Limited Partnership Agreement.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debentures of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Debentures of that series may declare the principal amount (or, if
any of the Debentures of that series are Original Issue Discount Debentures,
such portion of the principal amount of such Debentures as may be specified in
the terms thereof) of all of the Debentures of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Debentures of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debentures of that series, by written notice to the Company and
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the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, if any, on all Debentures of that
series,
(B) the principal of and premium, if any, on any Debentures of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Debentures,
(C) to the extent that payment of such interest is lawful,
interest upon any overdue interest at the rate or rates prescribed
therefor in such Debentures, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debentures of that series,
other than the non-payment of the principal of and accrued interest on
Debentures of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Debentures shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Debentures shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Debentures.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Debenture
when such interest becomes due and payable, or in any payment required by
any sinking fund with respect to that series, and such default continues
for a period of 10 days, or
(2) default is made in the payment of the principal of or premium, if
any, on any Debenture at the Maturity, upon redemption, by declaration or
otherwise, thereof,
the Company will, upon written demand of the Trustee, pay to it, for the benefit
of the Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal (and premium, if any) and interest, if any, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Debentures, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Debentures and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Debentures, wherever
situated.
If any Event of Default with respect to Debentures of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debentures of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
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the Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Debentures and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBENTURES.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order with respect to the Debentures of any series, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Debentures and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: In case the principal and premium, if any, of the Debentures
of such series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of interest, if
any, on the Debentures of such series in default in the order of the
maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee and to the extent
permitted by law) upon the overdue installments of interest at the rate
prescribed therefor in such Debentures, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Debentures of
such series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Debentures of such series for
principal and premium, if any, and interest, if any, with interest upon the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the rate prescribed therefor
in the Debentures of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debentures of such series, then to the payment of such principal and any
premium and interest, without preference or priority of principal over
interest, or of interest over principal or premium, or of any installment
of interest over any other installment of interest, or of any Debenture of
such series over any other Debenture of such series, ratably to the
aggregate of such principal and any premium and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
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SECTION 507. LIMITATION ON SUITS.
No Holder of any Debenture of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debentures of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debentures of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Debentures of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debenture shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Debenture on the Stated Maturity or
Maturities expressed in such Debenture (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Debentures
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Debentures of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debentures of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures of any series affected thereby may on behalf of
the Holders of all the Debentures of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or premium, if any, or
interest, if any, on any Debenture of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debenture of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debentures of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or premium, if any, or interest, if any, on any
Debenture on or after the Stated Maturity or Maturities expressed in such
Debenture (or, in the case of redemption, on or after the Redemption Date).
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SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with respect
to the Debentures of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Debentures of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Debentures of such
series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial or other
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Article VI.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Debentures of any series, the Trustee shall transmit by mail,
first class postage prepaid, to all Holders of Debentures of such series, as
their names and addresses appear in the Debenture Register, notice of such
default hereunder known to the Trustee and of which the Trustee is required
to take notice, unless such default shall have been cured or waived;
PROVIDED, HOWEVER, that, except in the case of a default in the payment of
the principal of (or premium, if any) or interest, if any, on any Debenture
of such series or in the payment of any sinking fund installment with respect
to Debentures of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Debentures of such series; and PROVIDED, FURTHER, that in the case
of any default of the character specified in Section 501(4) with respect to
Debentures of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of
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time or both would become, an Event of Default with respect to Debentures of
such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend or risk its
own funds or to exercise, at the request or direction of any of the Holders, any
of the rights or powers vested in it by this Indenture pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled upon reasonable
request to examine the books, records and premises of the Company, personally or
by agent or attorney; and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(h) the permissive right of the Trustee to do things enumerated in
this Indenture should not be construed as a duty.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debentures. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company or the Holders or any other party of Debentures or
the proceeds thereof.
SECTION 605. MAY HOLD DEBENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Debenture
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Debenture
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
(a) The Company agrees
(1) to pay to the Trustee from time to time such compensation as is
agreed upon in writing, or, if no such agreement exists, reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable
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expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel,
which compensation, expenses and disbursements shall be set forth in
sufficient detail), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all costs, loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Debentures.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Debentures of any series, and if
the default to which such conflicting interest relates has not been cured, duly
waived or otherwise eliminated, within 90 days after ascertaining that it has
such conflicting interest, it shall either eliminate such conflicting interest,
except as otherwise provided herein, or resign with respect to the Debentures of
that series in the manner and with the effect hereinafter specified in this
Article and the Company shall promptly appoint a Successor Trustee in the manner
provided herein.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Debentures of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail first class, postage prepaid to all Holders
of Debentures of that series, as their names and addresses appear in the
Debenture Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to
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the Debentures of any series if a default has occurred and is continuing and:
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Debentures of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Debentures issued under this
Indenture, PROVIDED that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Debentures of any series other
than that series or any indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and rank equally and such other indenture or
indentures (and such series) are hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found and declared by
order pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of this
Indenture with respect to Debentures of that series and one or more
other series or the provisions of such other indenture or indentures
(or such series) which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Debentures of that series and
such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Debentures of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Debentures of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or
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indirect common control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) of the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company, but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
an underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depository, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such Persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company, not including the
Debentures issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any Person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
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(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any Person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of default upon the Debentures of
any series or any anniversary of such default while such default upon the
Debentures issued under this Indenture remains outstanding, in the capacity
of executor, administrator, testamentary or INTER VIVOS trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
Person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the dates of any default upon the Debentures
issued under this Indenture and annually in each succeeding year that the
Debentures issued under this Indenture remain in default, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest, if
any, on any of the Debentures when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the above-
mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection; or
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of this Subsection, the Trustee shall be or shall become a
creditor of the Company.
For purposes of paragraph (1) of this Subsection, and of Section 513, the
term "series of securities or "series" means a series, class or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the indenture trustee, or otherwise take action
pursuant
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to a vote of such holders, separately from holders of another such series;
provided, that "series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank equally and
are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depository, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
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(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Debentures.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following
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securities shall not be deemed outstanding within the meaning of this
definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
PROVIDED, HOWEVER, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; PROVIDED, HOWEVER, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and PROVIDED, FURTHER, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Debentures issued under this
Indenture, or in the payment of any sinking or analogous fund installment, the
Trustee shall not be required to resign as provided by this Subsection if such
Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that (i) the default under
the Indenture may be cured or waived during a reasonable period and under the
procedures described in such application and (ii) a stay of the Trustee's duty
to resign will not be inconsistent wit the interests of the Holders. The filing
of such an application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise.
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Any resignation of the Trustee shall become effective upon the
appointment of a successor trustee and such successor's acceptance of such an
appointment.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign promptly in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Debentures
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures of such series.
(c) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debentures of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by
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any Holder who has been a bona fide Holder of a Debenture for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debentures, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Debenture for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Debentures and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debentures of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Debentures of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Debentures of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Debentures of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debentures of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debentures of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Debentures of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Debentures of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Debenture of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Debentures of such
series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debentures of any series and each
appointment of a successor Trustee with respect to the Debentures of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Debentures of such series as their names and addresses appear in
the Debenture Register. Each notice shall include the name of the successor
Trustee with respect to the Debentures of such series and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Debentures, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debentures of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Debentures, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Debentures of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such
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Trustee; and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debentures of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Debentures of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated with the same
effect as if such successor Trustee had itself authenticated such Debentures.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company within three months prior to a default, as defined in Subsection (c)
of this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually,
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the Holders of the Debentures and the holders of other indenture securities, as
defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, SUBJECT, HOWEVER, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property
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held as security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as
security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to
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liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
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(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of (or premium, if any) or interest on any of the Debentures
or upon the other indenture securities when and as such principal (or
premium, if any) or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to the
provisions of this Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property held in such special
account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Debentures; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Code or
Title 11 of the United States Code.
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SECTION 614. AUTHENTICATING AGENTS.
From time to time the Trustee, in its sole discretion, may appoint one
or more Authenticating Agents with respect to one or more series of Debentures
with power to act on the Trustee's behalf and subject to its direction in the
authentication and delivery of Debentures of such series or in connection with
transfers and exchanges under Sections 304, 305, 306, and 1107 as fully to all
intents and purposes as though the Authenticating Agent had been expressly
authorized by those Sections of this Indenture to authenticate and deliver
Debentures of such series. For all purposes of this Indenture, the
authentication and delivery of Debentures by an Authenticating Agent pursuant to
this Section shall be deemed to be authentication and delivery of such
Debentures "by the Trustee". Each such Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least annually pursuant to
law or the requirements of such authority, then for the purposes of this Section
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation or to which any Authenticating Agent shall be a party, or any
corporation succeeding to the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent hereunder, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
An Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail notice of such appointment to all Holders of
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Debentures of the series with respect to which such Authenticating Agent will
serve, as the names and addresses of such Holders appear on the Debenture
Register. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The Trustee shall incur no liability for the appointment of any
Authenticating Agent with respect to the Debentures of one or more series or for
any misconduct or negligence of such Authenticating Agent, including without
limitation, its authentication of the Debentures upon original issuance or
pursuant to Section 306. In the event the Trustee does incur liability for any
such misconduct or negligence of the Authenticating Agent, the Company agrees to
indemnify the Trustee for, and hold it harmless against, any such liability,
including the costs and expenses of defending itself against any liability in
connection with such misconduct or negligence of the Authenticating Agent.
If an appointment with respect to one or more series of Debentures is
made pursuant to this Section, the Debentures of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Debentures of the series designated herein referred
to in the within-mentioned Indenture.
By
----------------------------------
As Trustee
By
----------------------------------
As Authenticating Agent
By
----------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company, will furnish or cause to be furnished to the Trustee with
respect to the Debentures of each series
(a) monthly, on each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished; PROVIDED, HOWEVER, that so long as the Trustee
is Debenture Registrar for any series of Debentures, no list otherwise
required by this Section 701 shall be required to be furnished with respect
to any such series.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Debenture
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Debenture for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Debentures and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the
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information preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail by first class mail, postage prepaid, to each Holder whose
name and address appear in the information preserved at the time by the
Trustee in accordance with Section 702(a) a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Holders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) On or before July 15 in each year in which any of the Debentures
are outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Holders, as their names and addresses appear upon the Debenture
Register, a brief report dated as of the preceding May 15, with respect to any
of the following events which may have occurred within the previous
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twelve months (but if no such event has occurred within such period no report
need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section 608;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Debentures, on any property or funds held or collected
by it as Trustee if such advances so remaining unpaid aggregate more than
1/2 of 1% of the principal amount of the Debentures outstanding on the date
of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Debentures, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b) (2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any change to any release, or release and substitution, of
property subject to the lien of this Indenture (and the consideration
thereof, if any) which the Trustee has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Debenture Register, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the
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circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Debentures, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Debentures Outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debentures are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Debentures are listed on any stock
exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail, first class postage prepaid, to all Holders, as
their names and addresses appear in the
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Debenture Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission; and
(4) furnish to the Trustee, on or before May 15 in each calendar year
in which any of the Debentures are outstanding, or on or before such other
day in each calendar year as the Company and the Trustee may from time to
time agree upon, a certificate as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this Subsection, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Debentures and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
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such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Debentures equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. SUCCESSOR CORPORATION TO BE SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Debentures.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or
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more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Debentures;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debentures (and if such covenants are to be
for the benefit of less than all series of Debentures, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Debentures in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Debentures in uncertificated form, or to permit or facilitate
the issuance of extendible Debentures;
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only as
to the Debentures of any series created by such supplemental indenture and
Debentures of any series subsequently created to which such change or
elimination is made applicable by the subsequent supplemental indenture
creating such series;
(6) to secure the Debentures;
(7) to establish the form or terms of Debentures of any series as
permitted by Sections 201 and 301;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debentures of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b);
(9) to provide for any rights of the Holders of Debentures of any
series to require the repurchase of Debentures of such series by the
Company;
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this
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Indenture, PROVIDED such action shall not adversely affect the interests of
the Holders of Debentures of any series in any material respect; or
(11) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to Holders, which does not involve
a change described in clause (1), (2) or (3) of Section 902 hereof and
which, in the judgment of the Trustee, is not to the prejudice of the
Trustee, including, without limitation, to provide for the duties,
responsibilities and compensation of the Trustee as a transfer agent in the
event one registered Debenture of any series is issued in the aggregate
principal amount of all Outstanding Debentures of such series in which
Holders will hold an interest.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debentures of all series affected by such
supplemental indenture (voting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Debentures of such series
under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debenture affected
thereby,
(1) change the Stated Maturity (whether fixed by its terms or by its
terms extendible at the option of the Company) of the principal of, or any
installment of principal of or interest, if any, on, any Debenture, or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Debenture that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change any Place of Payment where, or the coin or
currency in which, any Debenture or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Debentures of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
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certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Section 513
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Debenture affected thereby,
PROVIDED, HOWEVER, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debentures, or which modifies the
rights of the Holders of Debentures of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debentures of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debentures of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debentures of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Debentures that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Debentures of that series in accordance
with the terms of the Debentures and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Debentures an office or agency where Debentures of that series may be presented
or surrendered for payment, where Debentures of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Debentures of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and, in such event, the Trustee shall act
as the Company's agent to receive all such presentations, surrenders, notices
and demands.
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The Company may also from time to time designate one or more other
offices or agencies where the Debentures of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Debentures of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. MONEY FOR DEBENTURES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debentures, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of the Debentures
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Debentures, it will, on, in case the payment referred to below is made
in same day funds, or, in all other cases, prior to, each due date of the
principal of (and premium, if any) or interest, if any, on any Debentures of
that series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its failure so to act.
The Company will cause each Paying Agent for any series of Debentures
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Debentures of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures of that series) in the making of any
payment of principal (and
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premium, if any) or interest, if any, on the Debentures of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Debenture of any series and remaining unclaimed
for three years after such principal (and premium, if any) or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Debenture shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the City, County and State of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and will use its best efforts to do or cause to be done all things
necessary to preserve and keep in full force and effect its rights (charter and
statutory) and franchises; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the
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business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee on or before May 15, 1996, and
on May 15 in each year thereafter, an Officers' Certificate stating that in the
course of the performance by each signer of his duties as an officer of the
Company he would normally have knowledge of any default by the Company in the
performance and observance of any of the covenants contained in Sections 1001 to
1006, stating whether or not he has knowledge of any such default and, if so,
specifying each such default of which such signer has knowledge and the nature
thereof.
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SECTION 1008. DEFEASANCE OF CERTAIN OBLIGATIONS.
The Company may omit to comply with any term, provision or condition
set forth in Sections 801, 1004, 1005 and 1006 with respect to the Debentures of
any series, provided that the following conditions shall have been satisfied:
(1) The Company has deposited or caused to be irrevocably deposited
(except as provided in Section 402(c) and the last paragraph of Section
1003) with the Trustee (specifying that each deposit is pursuant to this
Section 1008) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Debentures
of such series, (i) money in the currency or units of currency in which
such Debentures are payable in an amount, or (ii) (except as provided in a
supplemental indenture with respect to such series) if Debentures of such
series are not subject to repurchase at the option of Holders, (A) U.S.
Government Obligations (denominated in the same currency or units of
currency in which such Debentures are payable) which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide not later than one day before the due date of any payment
referred to in clause (x) or (y) of this subparagraph (1) money in an
amount, or (B) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge (x) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest, if any, on the
Outstanding Debentures of such series on the Stated Maturity of such
principal or installment of principal or interest or to and including the
Redemption Date irrevocably designated by the Company pursuant to
subparagraph (4) of this Section and (y) any mandatory sinking fund
payments applicable to the Debentures of such series on the day on which
payments are due and payable in accordance with the terms of the Indenture
and of the Debentures of such series;
(2) No Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit) with
respect to the Debentures of such series shall have occurred and be
continuing on the date of such deposit;
(3) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that Holders of the Debentures of such series
will not recognize income, gain or loss for Federal income tax purposes as
a result of such deposit and defeasance of certain obligations; (ii) that
such provision would not cause any outstanding Debentures of such series
then listed on any national securities exchange to be delisted as a result
thereof; and (iii) that the
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defeasance trust is not, or is registered as, an investment company under
the Investment Company Act of 1940; and
(4) If the Company has deposited or caused to be deposited money or
U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Debentures of a
series to and including a Redemption Date on which all of the Outstanding
Debentures of such series are to be redeemed, such Redemption Date shall be
irrevocably designated by a Board Resolution delivered to the Trustee on or
prior to the date of deposit of such money or U.S. Government Obligations,
and such Board Resolution shall be accompanied by an irrevocable Company
Request that the Trustee give notice of such redemption in the name and at
the expense of the Company not less than 30 nor more than 60 days prior to
such Redemption Date in accordance with Section 1104.
SECTION 1009. DISTRIBUTIONS AND PAYMENT OF DIVIDENDS.
The Company will not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect to,
any of its capital stock if at such time (i) there shall have occurred any event
that would constitute an Event of Default under the Indenture, (ii) the Company
shall be in default with respect to its payment of any obligations under the
Guarantee, if issued, or (iii) the Company shall have given notice of its
selection of an extended interest payment period as provided in the Indenture
and such period, or any extension thereof, shall be continuing.
SECTION 1010. REQUIRED CAPITAL CONTRIBUTIONS.
So long as any series of Debentures issued in connection with the
application of the proceeds from the issuance and sale of a series of Preferred
Securities of UtiliCorp Capital remain outstanding, and so long as UtiliCorp
Capital does not merge, consolidate, or amalgamate with or into, or is not
replaced by, or does not convey, transfer or lease to, a trust as permitted
without the consent of holders of the Preferred Securities under the Limited
Partnership Agreement, the Company will (i) remain the sole general partner of
UtiliCorp Capital and maintain 100% ownership of the general partner interests
thereof; provided that any permitted successor of the Company under the
Indenture may succeed to its duties as general partner, (ii) contribute capital
to the extent required to maintain its capital at an amount equal to at least 3%
of the total capital contributions to UtiliCorp Capital, (iii) not voluntarily
dissolve, wind-up or terminate UtiliCorp Capital, except in connection with a
distribution of Debentures and in connection with certain mergers,
consolidations, amalgamations, replacements, conveyances, transfers or leases
permitted by the
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Limited Partnership Agreement, (iv) timely perform all of its duties as General
Partner (including the duty to pay dividends on the Preferred Securities of
UtiliCorp Capital), and (v) use its reasonable efforts to cause UtiliCorp
Capital to remain a limited partnership except in connection with a distribution
of Debentures and in connection with certain mergers, consolidations or
amalgamations permitted by the Limited Partnership Agreement, and otherwise
continue to be treated as a partnership for United States federal income tax
purposes except in connection with a distribution of Debentures.
ARTICLE ELEVEN
REDEMPTION OF DEBENTURES
SECTION 1101. APPLICABILITY OF ARTICLE.
Debentures of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debentures of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debentures shall be
evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Debentures of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Debentures of
such series to be redeemed, such notice to be accompanied by a written statement
signed by an authorized officer of the Company stating that no defaults in the
payment of interest or Events of Default with respect to the Debentures of that
series have occurred (which have not been waived or cured). In the case of any
redemption of Debentures prior to the expiration of any restriction on such
redemption provided in the terms of such Debentures or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures of any series are to be redeemed, the
particular Debentures to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Debentures of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
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selection for redemption of portions (equal to the minimum authorized
denomination for Debentures of that series or any integral multiple thereof) of
the principal amount of Debentures of such series of a denomination larger than
the minimum authorized denomination for Debentures of that series.
Debentures shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Debenture Registrar at least 60 days prior to the Redemption Date as
being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Company or (b) an entity specifically identified in such written
statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debentures selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debentures which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Debentures to be redeemed, at his address appearing in
the Debenture Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Debentures of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Debentures to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Debenture to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Debentures are to be surrendered
for payment of the Redemption Price, and
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(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On, in the case of same day funds, or in all other cases at least one
Business Day prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Debentures
which are to be redeemed on that date (to the extent that such amounts are not
already on deposit at such time in accordance with the provisions of Section
401, 403 or 1008).
SECTION 1106. DEBENTURES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debentures so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Debentures shall cease to bear interest. Upon surrender
of any such Debenture for redemption in accordance with said notice, such
Debenture shall be paid by the Company at the Redemption Price, together with
accrued and unpaid interest to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Debentures, or one or more
Predecessor Debentures, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debenture.
SECTION 1107. DEBENTURES REDEEMED IN PART.
Any Debenture (including any Global Debenture) which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer
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in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Debenture without service charge, a new Debenture or Debentures of the same
series, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Debenture so surrendered; PROVIDED, that if a Global Debenture
shall be in a denomination equal to the unredeemed portion of the principal of
the Global Debenture so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debentures of a series except as otherwise specified as
contemplated by Section 301 for Debentures of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debentures of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBENTURES.
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Debentures in cash, the Company may at its
option (a) deliver to the Trustee Debentures of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Debentures of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 309, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Debentures of such series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such series. Debentures so
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delivered or credited shall be received or credited by the Trustee at the
sinking fund Redemption Price specified in such Debentures.
SECTION 1203. REDEMPTION OF DEBENTURES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Debentures, the Company will deliver to the Trustee an Officers'
Certificate specifying (a) the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, (b) whether or not the
Company intends to exercise its right, if any, to make an optional sinking fund
payment with respect to such series on the next ensuing sinking fund payment
date and, if so, the amount of such optional sinking fund payment, and (c) the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Debentures of that series pursuant to Section 1202, and will also deliver to the
Trustee any Debentures to be so delivered. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such 60th day, to deliver such written
statement and Debentures specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Debentures of such
series in respect therefor and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.
Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Debentures to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Debentures shall be made upon the terms and in the manner
stated in Sections 1105, 1106 and 1107.
The Trustee shall not redeem or cause to be redeemed any Debenture of
a series with sinking fund moneys or mail any notice of redemption of Debentures
of such series by operation of the sinking fund during the continuance of a
default in payment of interest with respect to Debentures of that series or an
Event of Default with respect to the Debentures of that series except that,
where the mailing of notice of redemption of any Debentures shall theretofore
have been made, the Trustee shall redeem or
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cause to be redeemed such Debentures, provided that it shall have received from
the Company a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default, shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Five and held for the payment of all
such Debentures. In case such Event of Default shall have been waived as
provided in Section 513 or the default or Event of Default cured on or before
the 60th day preceding the sinking fund payment date, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Debentures.
ARTICLE THIRTEEN
SUBORDINATION OF DEBENTURES
SECTION 1301. AGREEMENT OF SUBORDINATION. The Company covenants and agrees,
and each Holder of Debentures issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Debentures shall be issued subject to
the provisions of this Article Thirteen; and each Holder of Debentures, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Thirteen shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 1302. LIMITATIONS ON PAYMENTS TO HOLDERS. In the event and during the
continuation of any default in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness continuing beyond the period of
grace, if any, specified in the instrument evidencing such Senior Indebtedness,
unless and until such default shall have been cured or waived or shall have
ceased to exist, and in the event that the maturity of any Senior Indebtedness
has been accelerated because of a default, then no payment shall be made by the
Company with respect to the principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such
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payment is prohibited by the preceding paragraph of this Section 1302, such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the Holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the Holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee within 90 days of such payment of the amounts then due and owing on
the Senior Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the Holders of Senior Indebtedness.
SECTION 1303. PAYMENTS IN BANKRUPTCY. Upon any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made on account of the principal (and premium, if any) or interest on
the Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Debenture or the Trustee would be entitled, except for
the provisions of this Article Thirteen, shall by paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the Holders of the Debentures or by
the Trustee under this Indenture if received by them or it, directly to the
Holders of Senior Indebtedness (pro rata to such Holders on the basis of the
respective amounts of Senior Indebtedness held by such Holders, as calculated by
the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all Senior Indebtedness in full, in money
or money's worth, after giving effect to any concurrent payment or distribution
to or for the Holders of Senior Indebtedness, before any payment or distribution
is made to the Holders of Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Debentures before all Senior Indebtedness is paid
in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust
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for the benefit of and shall be paid over or delivered to the Holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the Holders of such Senior
Indebtedness.
For purposes of this Article Thirteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Thirteen with
respect to the Debentures to the payment of all Senior Indebtedness which may at
the time be outstanding; provided that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the Holders of the Senior Indebtedness are
not, without the consent of such Holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Ten hereof shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 1303
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in this Indenture.
Nothing in Section 1302 or in this Section 1303 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1304. SUBROGATION OF DEBENTURES. Subject to the payment in full of all
Senior Indebtedness, the rights of the Holders of the Debentures shall be
subrogated to the rights of the Holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of (and premium, if
any) and interest on the Debentures shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the Holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article Thirteen, and no payment over pursuant to the provisions of this Article
Thirteen, to or for the benefit of the Holders of Senior Indebtedness by Holders
of the Debentures or the Trustee, shall, as between the Company, its creditors
other than Holders of
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Senior Indebtedness, and the Holders of the Debentures, be deemed to be a
payment by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article Thirteen are and are intended
solely for the purposes of defining the relative rights of the Holders of the
Debentures, on the one hand, and the Holders of the Senior Indebtedness on the
other hand.
Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors other than the Holders of Senior Indebtedness, and the
Holders of the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Debentures the principal of (and
premium, if any) and interest on the Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Debentures and creditors
of the Company other than the Holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of any Debenture
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Thirteen
of the Holders of Senior Indebtedness in respect of cash, property or securities
of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Thirteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Debentures shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other person making such payment or distribution, delivered to the Trustee or
to the Holders of the Debentures, for the purposes of ascertaining the persons
entitled to participate in such distribution, the Holders of the Senior
Indebtedness and other indebtedness of the Company, the amount hereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Thirteen.
SECTION 1305. AUTHORIZATION BY HOLDERS. Each Holder of a Debenture by his
acceptance thereof authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Thirteen and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 1306. NOTICE TO TRUSTEE. The Company shall give prompt written notice
to a Responsible Officer of the Trustee of any
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fact known to the Company which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article Thirteen. Notwithstanding the provisions of this
Article Thirteen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article Thirteen, unless and until
a Responsible Officer of the Trustee shall have received written notice thereof
at the principal office of the Trustee from the Company or a holder or Holders
of Senior Indebtedness or from any trustee therefor; and before the receipt of
any such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; provided
that if the Trustee shall not have received the notice provided for in this
Section 1306 at least two business days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debenture), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary which may be received by it within two
business days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or Holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Thirteen, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article Thirteen, and if such evidence is not furnished
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
SECTION 1307. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Thirteen in respect of any Senior Indebtedness at any time held by it,
to the same extent as any other holder of Senior Indebtedness, and nothing in
this
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Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article Thirteen, and no implied covenants
or obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the Holders of Senior Indebtedness and, subject to the
provisions of Section 601, the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall pay over or deliver to Holders of Debentures,
the Company or any other person money or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Thirteen or otherwise.
SECTION 1308. ACTS OF HOLDERS OF SENIOR INDEBTEDNESS. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of the Debentures
and without impairing or releasing the subordination provided in this Article
Thirteen or the obligations hereunder of the Holders of the Debentures to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other person.
UMB Bank, N.A., as Trustee hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
* * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[Seal] UTILICORP UNITED INC.
By:
-------------------------------------
Dale J. Wolf
Vice President
Attest:
- ---------------------------
[Seal] UMB BANK, N.A.
as Trustee
By:
-------------------------------------
Attest:
- ---------------------------
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STATE OF MISSOURI )
: ss.:
COUNTY OF JACKSON )
On the _____ day of ________________, 1995, before me personally came
Dale J. Wolf, to me known, who, being by me duly sworn, did depose and say that
he is a Vice President of UtiliCorp United Inc., the corporation described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
------------------------------------
Notary Public,
State of Missouri
STATE OF ___________)
: ss.:
COUNTY OF __________)
On the _____ day of __________________, 1995, before me personally
came ________________________, to me known, who, being by me duly sworn, did
depose and say that he is a _________________ of UMB Bank, N.A., the national
banking association described in and which executed the foregoing instrument;
that he knows the seal of said association; that the seal affixed to said
instrument is such association seal; that it was so affixed by authority of the
Board of Directors of said association, and that he signed his name thereto by
like authority.
------------------------------------
Notary Public,
State of _______________
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- --------------------------------------------------------------------------------
UTILICORP UNITED INC.
AND
UMB BANK, N.A.,
as Trustee
----------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of ______________, 1995
TO
INDENTURE
Dated as of ______________, 1995
----------------
______% Junior Subordinated Deferrable Interest Debentures, Series A, Due 2025
- --------------------------------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the ______ day of _____________,
1995 (the "First Supplemental Indenture"), between UTILICORP UNITED INC., a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter sometimes referred to as the "Company"), and UMB Bank, N.A., a
national banking association organized and existing under the laws of the United
States, as trustee (hereinafter sometimes referred to as the "Trustee") under
the Indenture dated as of __________________, 1995 between the Company and the
Trustee (the "Indenture"; all terms used and not defined herein are used as
defined in the Indenture).
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of securities and the Company desires to
issue its junior subordinated debentures (the "Debentures"), said Debentures
to be issued from time to time in series as might be determined by the
Company under the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered thereunder as in the Indenture provided;
and
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Debentures to be known as
its ____% Junior Subordinated Deferrable Interest Debentures, Series A, Due 2025
(said series being hereinafter referred to as the "Series A Debentures"), the
form and substance of such Series A Debentures and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this First
Supplemental Indenture; and
WHEREAS, UtiliCorp Capital L.P., a Delaware limited partnership ("UtiliCorp
Capital"), has offered to the public its _____% Cumulative Monthly Income
Preferred Securities, Series A (the "Series A Preferred Securities"),
representing limited partnership interests in the Company and proposes to invest
the proceeds from such offering in the Series A Debentures; and
WHEREAS, upon the occurrence of a Special Event (as defined in the Amended
and Restated Agreement of Limited Partnership of UtiliCorp Capital L.P., dated
_____________, 1995, as amended or supplemented (the "Limited Partnership
Agreement")), the Company may dissolve UtiliCorp Capital and cause to be
distributed to the holders of the Series A Preferred Securities, on a pro rata
basis, Series A Debentures (a "Dissolution Event"); and
WHEREAS, the Company desires and has requested the Trustee to join with it
in the execution and delivery of this First Supplemental Indenture, and all
requirements necessary to make this First Supplemental Indenture a valid
instrument, in accordance with its terms, and to make the Series A Debentures,
when executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed and fulfilled, and the
execution and delivery hereof have been in all respects duly authorized:
<PAGE>
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series A Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series A
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
ARTICLE ONE
General Terms and Conditions of
the Series A Debentures
SECTION 1.01. There shall be and is hereby authorized a series of
Debentures designated the "______% Junior Subordinated Deferrable Interest
Debentures, Series A, Due 2025", unlimited in aggregate principal amount. The
Series A Debentures will initially be issued in the aggregate principal amount
of $_________________. The Series A Debentures shall mature and the principal
shall be due and payable together with all accrued and unpaid interest thereon,
including Additional Interest (as hereinafter defined) on _____________, 2025,
and shall be issued in the form of registered Series A Debentures without
coupons.
SECTION 1.02. Except as provided in Section 1.03 herein, the Series A
Debentures shall be issued in certificated form. Principal and interest on the
Series A Debentures issued in certificated form will be payable, the transfer of
such Series A Debentures will be registrable and such Series A Debentures will
be exchangeable for the Series A Debentures bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City and State of New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed first class, postage
prepaid to the registered Holder at such address as shall appear in the
Debenture register. Notwithstanding the foregoing, so long as the Holder of
the Series A Debentures is UtiliCorp Capital, the payment of the principal of
and interest on (including Additional Interest, if any) the Series A
Debentures will be made at such place and to such account as may be
designated by UtiliCorp Capital.
SECTION 1.03. In connection with a Dissolution Event, the Series A
Debentures in certificated form may be presented to the Trustee by UtiliCorp
Capital in exchange for a Global Debenture in an aggregate principal amount
equal to all Outstanding Series A Debentures, to be registered in the name of
the Depository, or its nominee, and delivered by the Trustee to the Depository
for crediting to the accounts of its participants pursuant to the instructions
of UtiliCorp Capital. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery as hereinabove and in the Indenture
provided. Payments on the Series A Debentures issued as a Global Debenture will
be made to the Depository. The Depository for the Series A Debentures shall be
The Depository Trust Company, New York, New York.
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<PAGE>
SECTION 1.04. Each Series A Debenture will bear interest at the rate of
______% per annum from the original date of issuance until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum, payable monthly in arrears
on the last day of each calendar month of each year (each, an "Interest Payment
Date", commencing on _____________, 1995), to the person in whose name such
Series A Debenture or any predecessor Series A Debenture is registered in the
Debenture Register, at the close of business on the Regular Record Date for
such interest installment, which shall be the close of business on the
Business Day next preceding that Interest Payment Date. If pursuant to the
provisions of Section 305 of the Indenture the Series A Junior Subordinated
Debentures are no longer represented by a Global Debenture, the Company may
select a Regular Record Date for such interest installment which shall be any
date not later than fifteen days preceding an Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such Regular Record Date,
and may be paid to the person in whose name the Series A Debenture (or one or
more Predecessor Debentures) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of such
defaulted interest, notice whereof shall be given to the registered Holders
of the Series A Debentures not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Series A
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture hereinafter referred to.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
If at any time when UtiliCorp Capital is the holder of the Series A
Debentures, UtiliCorp Capital shall be required to pay any interest on dividends
in arrears in respect of the Series A Preferred Securities pursuant to the terms
thereof, then the Company will pay as interest (the "Additional Interest") an
amount equal to such interest on dividends in arrears. In addition, if UtiliCorp
Capital would be required to pay any taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States, or any other taxing authority, then, in any such case, the Company shall
also pay as Additional Interest such amounts as shall be required so that the
net amount received and retained by UtiliCorp Capital after paying any such
taxes, duties, assessments or governmental charges will not be less than the
amounts UtiliCorp Capital would have received had no such taxes, duties,
assessments or governmental charges been imposed.
-3-
<PAGE>
ARTICLE TWO
Mandatory Prepayment and Optional Redemption
of the Series A Debentures
SECTION 2.01. If UtiliCorp Capital redeems the Series A Preferred
Securities in accordance with the terms thereof, the Series A Debentures will
become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed,
together with all accrued and unpaid interest thereon, including Additional
Interest, if any (the "Mandatory Prepayment Price"). Any payment pursuant to
this provision shall be made in immediately available same day funds prior to
12:00 noon, New York time, on the date of such redemption or at such earlier
time as the Company and UtiliCorp Capital shall agree.
SECTION 2.02. At such time as there are no Series A Preferred Securities
remaining outstanding and subject to the terms of Articles Eleven and Twelve of
the Indenture, the Company shall have the right to redeem the Series A
Debentures, in whole or in part, from time to time, on or after _______________,
2000, at a redemption price equal to 100% of the principal amount to be redeemed
plus any accrued and unpaid interest thereon, including any Additional Interest,
if any, to the date of such redemption (the "Optional Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Optional Redemption Price. If the Series A
Debentures are only partially redeemed pursuant to this Section, the Debentures
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee; provided, that if at the time of redemption, the Series A Debentures
are registered as a Global Debenture, the Depository shall determine by lot the
principal amount of such Series A Debentures held by each Series A
Debentureholder to be redeemed.
ARTICLE THREE
Extension of Interest Payment Period
SECTION 3.01. The Company shall have the right, at any time during the
term of the Series A Debentures, from time to time to extend the interest
payment period, of such Series A Debentures for up to 60 consecutive months (the
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest accrued and unpaid thereon (together with interest
thereon at the rate specified for the Series A Debentures to the extent
permitted by applicable law); provided that, during such Extended Interest
Payment Period the Company shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock or make any guarantee payments with respect to the foregoing.
Prior to the termination of any such Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 60 consecutive months. Upon
the termination of any Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and
-4-
<PAGE>
any Additional Interest then due, the Company may select a new Extended Interest
Payment Period, subject to the foregoing requirements. No interest during an
Extended Interest Payment Period, except at the end thereof, shall be due and
payable.
SECTION 3.02. (a) If UtiliCorp Capital is the sole holder of the Series A
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give both UtiliCorp Capital and the Trustee written notice of
its selection of such Extended Interest Payment Period one Business Day prior to
the earlier of (i) the next succeeding date on which dividends on the Series A
Preferred Securities are payable or (ii) the date UtiliCorp Capital is required
to give notice of the Record Date or the date such dividends are payable to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Series A Preferred Securities, but in any event not less than one
Business Day prior to such Record Date. The Company shall cause UtiliCorp
Capital to give notice of the Company's selection of such Extended Interest
Payment Period to the holders of the Series A Preferred Securities.
(b) If UtiliCorp Capital is not the sole Holder of the Series A
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Series A Debentures and
the Trustee written notice of its selection of such Extended Interest
Payment Period 10 Business Days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
the New York Stock Exchange or other applicable self- regulatory
organization or to Holders of the Series A Debentures, but in any event not
less than two Business Days prior to such Record Date.
(c) The month in which any notice is given pursuant to paragraphs (a)
or (b) of this Section shall constitute one of the 60 months which comprise
the maximum Extended Interest Payment Period.
ARTICLE FOUR
Right of Set-Off
SECTION 4.01. Notwithstanding anything to the contrary in the Indenture or
herein, the Company shall have the right to set-off any payment it is otherwise
required to make thereunder or hereunder with and to the extent the Company has
heretofore made, or is concurrently on the date of such payment making, a
payment under the Guarantee, dated as of _________________, 1995 executed by the
Company and furnished to UtiliCorp Capital for the benefit of the holders of the
Series A Preferred Securities.
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<PAGE>
ARTICLE FIVE
Covenant to List on Exchange
SECTION 5.01. If the Series A Debentures are to be issued as a Global
Debenture in connection with the distribution of the Series A Debentures to the
holders of the Series A Preferred Securities upon a Dissolution Event, the
Company will use its best efforts to list such Debentures on the New York Stock
Exchange or on such other exchange as the Series A Preferred Securities are then
listed and traded on the same part of any such exchange.
ARTICLE SIX
Form of Series A Debenture
SECTION 6.01. The Series A Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the following
forms:
(FORM OF FACE OF DEBENTURE)
[If the Debenture is to be a Global Debenture, insert - This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depository or a nominee of a Depository. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Debenture (other than a
transfer of this Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York) to the issuer or its agent
for registration of transfer, exchange or payment, and any Debenture issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
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<PAGE>
No. ____ $__________________
CUSIP No. ________________
UTILICORP UNITED INC.
______% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE, SERIES A, DUE 2025
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein referred to as the "Company", which term
includes any successor corporation under the Indenture), for value received,
hereby promises to pay to UtiliCorp Capital L.P. ("UtiliCorp Capital") or
registered assigns, the principal sum of ____________________ on
_________________, 2025, and to pay interest on said principal sum from
_____________, 1995 or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, monthly in arrears on the last day of each calendar month of each
year commencing _________________, 1995 at the rate of ______% per annum plus
Additional Interest, if any, until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, [which shall be the close of business on the
Business Day next preceding such Interest Payment Date]. [If pursuant to the
provisions of Section 305 of the Indenture the Series A Junior Subordinated
Debentures are no longer represented by a Global Debenture--which shall be the
close of business on the ___ Business Day next preceding such Interest Payment
Date.] Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Regular
Record Date, and may be paid to the person in whose name this Debenture (or one
or more Predecessor Debentures) is registered in the Debenture Register at
the close of business on a Special Record Date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Debentures not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture hereinafter
referred to. The principal of (and premium, if any) and the interest on this
Debenture
-7-
<PAGE>
shall be payable at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City and State of New York, in any coin
or currency of the United States of America which at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed
first class, postage prepaid to the registered Holder at such address as
shall appear in the Debenture Register. Notwithstanding the foregoing, so
long as the Holder of this Debenture is UtiliCorp Capital, the payment of the
principal of (and premium, if any) and interest (including Additional
Interest, if any) in this Debenture will be made at such place and to such
account as may be designated by UtiliCorp Capital.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, hereby waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to on the reverse side hereof, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
The provisions of this Debenture are contained on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be executed
as of __________________, 1995
UTILICORP UNITED INC.
By
------------------------
Name:
Attest: Title:
- --------------------------
Title:
-8-
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
UMB BANK, N.A. or_____________________________
as Trustee as Authentication Agent
By__________________________ By_____________________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of _______________, 1995 duly executed and delivered
between the Company and UMB Bank, N.A., a national banking association duly
organized and existing under the laws of the United States, as Trustee (herein
referred to as the "Trustee"), as supplemented by the First Supplemental
Indenture dated as of __________________, 1995 between the Company and the
Trustee (said Indenture as so supplemented being hereinafter referred to as the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. By the terms of the Indenture, the Debentures are
issuable in series which may vary as to amount, date of maturity, rate of
interest and in other respects as in the Indenture provided. This series of
Debentures is limited in aggregate principal amount as specified in said First
Supplemental Indenture.
If UtiliCorp Capital redeems its ______% Cumulative Monthly Income
Preferred Securities, Series A (the "Series A Preferred Securities") in
accordance with the terms thereof, this Debenture will become due and payable in
a principal amount equal to the aggregate stated liquidation preference of the
Series A Preferred Securities so redeemed, together with any interest accrued
thereon, including Additional Interest (the "Mandatory Prepayment Price"). Any
Mandatory Prepayment shall be made prior to 12:00 noon, New York time, on the
date of such redemption or at such earlier time as the Company and UtiliCorp
Capital shall agree. At such time as there are no Series A Preferred Securities
remaining outstanding and subject to the terms of Articles Eleven and Twelve of
the Indenture, the Company shall have the right to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in part at any
time on or after June _____, 2000 (an "Optional Redemption"), at a redemption
price equal to
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<PAGE>
100% of the principal amount plus any accrued but unpaid interest, including any
Additional Interest, if any, to the date of such redemption (the "Optional
Redemption Price"). Any redemption pursuant to this paragraph will be made upon
not less than 30 nor more than 60 days' notice, at the Optional Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption, the Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided that if at the time of
redemption, the Debentures are registered as a Global Debenture.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Debenture upon compliance by the Company with certain
conditions set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than 66-2/3% in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Debentures of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof, without the consent of the
Holder of each Debenture so affected or (ii) reduce the aforesaid percentage of
Debentures, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Debenture
then outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Debentures of all series at the time outstanding affected thereby, on behalf of
the Holders of the Debentures of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debentures of such series. Any such consent or waiver by
the registered Holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Debenture and of any Debenture issued in exchange
herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture.
-10-
<PAGE>
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
manner herein prescribed.
The Company shall have the right at any time during the term of the
Debentures, from time to time to extend the interest payment period of such
Debentures to up to 60 consecutive months (the "Extended Interest Payment
Period"), at the end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate specified for the
Debentures to the extent that payment of such interest is enforceable under
applicable law); provided that, during such Extended Interest Payment Period the
Company shall not declare or pay any dividend on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital stock or make
any guarantee payments with respect to the foregoing. Prior to the termination
of any such Extended Interest Payment Period, the Company may further extend
such Extended Interest Payment Period, provided that such Period together with
all such further extensions thereof shall not exceed 60 consecutive months. At
the termination of any such Extended Interest Payment Period and upon the
payment of all accrued and unpaid interest and any additional amounts then due,
the Company may select a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered Holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City and State of New York accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company or the Trustee
duly executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any paying agent and any Debenture Registrar may deem
and treat the registered Holder hereof as recorded in the Debenture Register
as the absolute owner hereof (whether or not this Debenture shall be overdue
and notwithstanding any notice of ownership or writing hereon made by anyone
other than the Debenture Registrar) for the purpose of receiving payment of
or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee
nor any paying agent nor any Debenture Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
-11-
<PAGE>
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
[The Debentures of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof.] [This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations of
$25 and any integral multiple thereof.] As provided in the Indenture and
subject to certain limitations [herein and] therein set forth, Debentures of
this series [so issued] are exchangeable for a like aggregate principal amount
of Debentures of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE SEVEN
Original Issue of Series A Debentures
SECTION 7.01. Series A Debentures may, upon execution of this First
Supplemental Indenture, or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Debentures to or upon the
written order of the Company, signed by its Chairman, its President, or any
Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE EIGHT
Sundry Provisions
SECTION 8.01. Except as otherwise expressly provided in this First
Supplemental Indenture or in the form of Series A Debenture or otherwise clearly
required by the context hereof or thereof, all terms used herein or in said form
of Series A Debenture that are defined in the Indenture shall have the several
meanings respectively assigned to them thereby.
SECTION 8.02. The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 8.03. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this First Supplemental Indenture.
-12-
<PAGE>
SECTION 8.04. This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
SECTION 8.05 If and to the extent that any provisions of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
SECTION 8.06 The Article and Section headings are for convenience only and
shall not affect the construction hereof.
SECTION 8.07 All covenants and agreements in this First Supplemental
Indenture by Utilicorp shall bind its successors and assigns, whether so
expressed or not.
SECTION 8.08 In case any provision in this First Supplemental Indenture or
the Series A Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 8.09 Nothing in this First Supplemental Indenture or the Series A
Debentures, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this First Supplemental Indenture.
SECTION 8.10 This First Supplemental Indenture and the Series A Debentures
shall be governed by and construed in accordance with the laws of the State of
New York.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
UTILICORP UNITED INC.
By
----------------------------------
Vice President
Attest:
- ----------------------------------
Assistant Secretary
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<PAGE>
UMB BANK, N.A.
as Trustee
By
----------------------------------
Attest:
- ----------------------------------
Assistant Treasurer
-14-
<PAGE>
STATE OF _____________ )
COUNTY OF ______________ ) ____________ ___, 1995
On the ___ day _________, in the year one thousand nine hundred
ninety-five, before me personally came ____________ to me known, who, being by
me duly sworn, did depose and say that he resides at
______________________________________________; that he is ______________ of
UTILICORP UNITED INC., one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporation seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
----------------------------
NOTARY PUBLIC
My Commission Expires
STATE OF _____________ )
COUNTY OF ____________ ) _______________ __, 1995
On the _____ day of ______, in the year one thousand nine hundred
ninety-five, before me personally came _____________ to me known, who, being by
me duly sworn, did depose and say that (s)he resides at ___________________, of
____________________, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation and that he
signed his name thereto by like authority.
-----------------------------
NOTARY PUBLIC
My Commission Expires
-15-
<PAGE>
EXHIBIT 4(c)
CERTIFICATE OF LIMITED PARTNERSHIP
OF
UTILICORP CAPITAL L.P.
The undersigned, for the purpose of forming a limited partnership pursuant
to Section 17-201 of the Delaware Revised Uniform Limited Partnership Act,
does hereby certify:
1. NAME. The name of the limited partnership is UtiliCorp Capital L.P.
(the "Partnership").
2. REGISTERED OFFICE AND REGISTERED AGENT. The address of the registered
office of the Partnership in the State of Delaware is c/o The Corporation
Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle. The name and address of the registered agent for
service of process on the Partnership in the State of Delaware is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle.
3. THE NAME AND BUSINESS ADDRESS OF THE GENERAL PARTNER. The name and
business address of the general partner (the "General Partner") are as
follows:
UtiliCorp United Inc.
911 Main, Suite 3000
Kansas City, MO 64105
IN WITNESS WHEREOF, the undersigned, being the Sole General Partner in the
Partnership, has caused this Certificate of Limited Partnership to be duly
executed as of the 1st day of May, 1995.
UtiliCorp United Inc.,
a Delaware corporation.
By: /s/ DALE J. WOLF
----------------------------
Name: Dale J. Wolf
Title: Corporate Secretary
<PAGE>
AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
UTILICORP CAPITAL L.P.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
FORMATION AND CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF SERIES A PREFERRED SECURITY HOLDERS . . . . . . 1
Section 1.1 Formation and Continuation of the Partnership. . . . . . 1
Section 1.2 Name.. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Activities of the Partnership. . . . . . . . . . . . . . 2
Section 1.4 Term.. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.5 Registered Agent and Office. . . . . . . . . . . . . . . 2
Section 1.6 Principal Place of Business. . . . . . . . . . . . . . . 3
Section 1.7 Name and Business Address of General Partner.. . . . . . 3
Section 1.8 Admission of Holders of Preferred Securities.. . . . . . 3
ARTICLE II
DEFINED TERMS. . . . . . . . . . . . . . . 4
Section 2.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2 Headings.. . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION
OF PREFERRED SECURITY HOLDER'S
INTEREST; CAPITAL ACCOUNTS . . . . . . . . . . . 9
Section 3.1 Capital Contributions. . . . . . . . . . . . . . . . . . 9
Section 3.2 Preferred Security Holder's Interest Represented by
Preferred Securities.. . . . . . . . . . . . . . . . . 10
Section 3.3 Capital Accounts.. . . . . . . . . . . . . . . . . . . . 10
Section 3.4 Interest on Capital Contributions. . . . . . . . . . . . 10
Section 3.5 Withdrawal and Return of Capital Contributions.. . . . . 10
- i -
<PAGE>
ARTICLE IV
ALLOCATIONS . . . . . . . . . . . . . . . 11
Section 4.1 Profits and Losses.. . . . . . . . . . . . . . . . . . . 11
Section 4.2 Other Allocation Provisions. . . . . . . . . . . . . . . 12
Section 4.3 Allocations for Income Tax Purposes. . . . . . . . . . . 14
Section 4.4 Withholding. . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V
DIVIDENDS. . . . . . . . . . . . . . . . 15
Section 5.1 Dividends. . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.2 Limitations on Distributions.. . . . . . . . . . . . . . 15
ARTICLE VI
ISSUANCE OF PREFERRED SECURITIES . . . . . . . . . . 15
Section 6.1 General Provisions Regarding Preferred Securities. . . . 15
Section 6.2 Mergers. . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
BOOKS OF ACCOUNT, RECORDS AND REPORTS. . . . . . . . . 21
Section 7.1 Books and Records. . . . . . . . . . . . . . . . . . . . 21
Section 7.2 Accounting Method. . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS . . . . . . . . . . . . 22
Section 8.1 Limitations. . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.2 Liability. . . . . . . . . . . . . . . . . . . . . . . . 22
Section 8.3 Priority.. . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IX
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER. . . . . . . . . . . . . 23
Section 9.1 Authority. . . . . . . . . . . . . . . . . . . . . . . . 23
- ii -
<PAGE>
Section 9.2 Powers and Duties of General Partner . . . . . . . . . . 23
Section 9.3 Liability. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.4 Exculpation. . . . . . . . . . . . . . . . . . . . . . . 24
Section 9.5 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . 25
Section 9.6 Indemnification. . . . . . . . . . . . . . . . . . . . . 26
Section 9.7 Outside Businesses . . . . . . . . . . . . . . . . . . . 26
Section 9.8 Limits on General Partner's Powers . . . . . . . . . . . 27
Section 9.9 Tax Matters Partner. . . . . . . . . . . . . . . . . . . 28
Section 9.10 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE X
TRANSFERS OF INTERESTS BY PARTNERS. . . . . . . . . . 28
Section 10.1 Transfer of Interests. . . . . . . . . . . . . . . . . . 28
Section 10.2 Transfer of LP Certificates. . . . . . . . . . . . . . . 29
Section 10.3 Persons Deemed Preferred Security Holders. . . . . . . . 29
Section 10.4 Book Entry Interests.. . . . . . . . . . . . . . . . . . 29
Section 10.5 Notices to Clearing Agency.. . . . . . . . . . . . . . . 30
Section 10.6 Appointment of Successor Clearing Agency.. . . . . . . . 30
Section 10.7 Definitive LP Certificates; Appointment of Paying
Agent(s).. . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE XI
WITHDRAWAL; DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS . . . . . . . . 31
Section 11.1 Withdrawal of Partners.. . . . . . . . . . . . . . . . . 31
Section 11.2 Dissolution of the Partnership.. . . . . . . . . . . . . 32
Section 11.3 Liquidation. . . . . . . . . . . . . . . . . . . . . . . 33
Section 11.4 Distribution in Liquidation. . . . . . . . . . . . . . . 34
Section 11.5 Rights of Limited Partners.. . . . . . . . . . . . . . . 34
Section 11.6 Termination. . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE XII
AMENDMENTS AND MEETINGS . . . . . . . . . . . . 34
Section 12.1 Amendments.. . . . . . . . . . . . . . . . . . . . . . . 34
Section 12.2 Amendment of Certificate.. . . . . . . . . . . . . . . . 35
Section 12.3 Meetings of the Partners.. . . . . . . . . . . . . . . . 35
- iii -
<PAGE>
ARTICLE XIII
MISCELLANEOUS. . . . . . . . . . . . . . . 36
Section 13.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 13.2 Entire Agreement.. . . . . . . . . . . . . . . . . . . . 37
Section 13.3 Governing Law. . . . . . . . . . . . . . . . . . . . . . 37
Section 13.4 Effect.. . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 13.5 Pronouns and Number. . . . . . . . . . . . . . . . . . . 37
Section 13.6 Partial Enforceability.. . . . . . . . . . . . . . . . . 37
Section 13.7 Counterparts.. . . . . . . . . . . . . . . . . . . . . . 37
Section 13.8 Waiver of Partition. . . . . . . . . . . . . . . . . . . 37
Section 13.9 Remedies.. . . . . . . . . . . . . . . . . . . . . . . . 38
- iv -
<PAGE>
AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
UTILICORP CAPITAL L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of UtiliCorp Capital
L.P. (the "Partnership"), dated as of ____________________, 1995, among
UtiliCorp United Inc., a Delaware corporation (the "Corporation"), as the
general partner, UCU Finance Corp., a Delaware corporation, as the initial
limited partner (the "Initial Limited Partner") and such other Persons (as
defined herein) who become Limited Partners (as defined herein) as provided
herein.
WHEREAS, the Corporation and the Initial Limited Partner entered into an
Agreement of Limited Partnership, dated as of May 1, 1995 (the "Original Limited
Partnership Agreement");
WHEREAS, the Certificate of Limited Partnership of the Partnership was
filed with the Office of the Secretary of State of the State of Delaware on May
3, 1995;
WHEREAS, the Partners (as defined herein) desire to continue the
Partnership as a limited partnership under the Act (as defined herein) and to
amend and restate the Original Limited Partnership Agreement in its entirety;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree to amend
and restate the Original Limited Partnership Agreement in its entirety and
hereby agree as follows:
ARTICLE I
FORMATION AND CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF SERIES A PREFERRED SECURITY HOLDERS
SECTION 1.1 FORMATION AND CONTINUATION OF THE PARTNERSHIP. The
Partnership was formed as a limited partnership under the Act by the filing by
the General Partner (as defined herein) of the Certificate (as defined herein)
with the Office of the Secretary of State of the State of Delaware on May 3,
1995 and the entering into by the General Partner and the Initial Limited
Partner of the Original Limited Partnership Agreement. The parties hereto agree
to continue the Partnership as a limited partnership under the Act.
<PAGE>
The General Partner, for itself and as agent for the Limited Partners, shall
make every reasonable effort to assure that all certificates and documents are
properly executed and shall accomplish all filing, recording, publishing and
other acts necessary or appropriate for compliance with all the requirements for
the continuation of the Partnership as a limited partnership under the Act and
under all other laws of the State of Delaware or such other jurisdictions in
which the General Partner determines that the Partnership may conduct business.
The rights, liabilities and duties of the Partners shall be as provided in the
Act except as modified by this Agreement. Where not otherwise specified in this
Agreement, the Act governs the rights and obligations of the parties to this
Agreement.
SECTION 1.2 NAME. The name of the Partnership is "UtiliCorp Capital
L.P.", as such name may be modified from time to time by the General Partner
following written notice to the Limited Partners. The Partnership business may
be conducted under the name of the Partnership or any other name deemed
advisable by the General Partner.
SECTION 1.3 ACTIVITIES OF THE PARTNERSHIP. The sole purpose of the
Partnership is (a) to issue partnership interests in the Partnership, including,
without limitation, Preferred Securities (as defined herein), and to use the
proceeds thereof to purchase Junior Subordinated Debentures (as defined herein)
or other similar debt instruments of the Corporation (b) to receive capital
contributions from the General Partner and to invest the same in debt securities
of the General Partner with maturities no greater than, and having a ranking not
subordinate to, the Junior Subordinated Debentures to which such capital
contribution relates and (c) except as otherwise limited herein, to enter into,
make and perform all contracts and other undertakings, and engage in all
activities and transactions as the General Partner may reasonably deem necessary
or advisable to the carrying out of the foregoing purpose of the Partnership.
SECTION 1.4 TERM. The term of the Partnership commenced on the date the
Certificate was filed with the Secretary of State of the State of Delaware and
shall continue until December 31, 2094, unless the Partnership is dissolved
before such date in accordance with the provisions of this Agreement.
SECTION 1.5 REGISTERED AGENT AND OFFICE. The Partnership's registered
agent and office in the State of Delaware shall be The Corporation Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. At any time, the General Partner may designate another
registered agent and/or registered office.
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SECTION 1.6 PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the Partnership shall be at c/o UtiliCorp United Inc., 911 Main, Suite 3000,
Kansas City, Missouri 64105. Upon ten days written notice to the Limited
Partners, the General Partner may change the location of the Partnership's
principal place of business.
SECTION 1.7 NAME AND BUSINESS ADDRESS OF GENERAL PARTNER. The name and
address of the General Partner are as follows:
UtiliCorp United Inc.
911 Main, Suite 3000
Kansas City, Missouri 64105
Attn: Treasurer
The General Partner may change its name or business address from time to time,
in which event the General Partner shall promptly notify the Limited Partners of
any such change.
SECTION 1.8 ADMISSION OF HOLDERS OF PREFERRED SECURITIES.
(a) Without necessity for execution of this Agreement, upon receipt by a
Person of an LP Certificate (as defined herein) and payment of the Purchase
Price (as defined herein) for the Preferred Securities represented by such LP
Certificate in connection with the initial issuance by the Partnership of such
Preferred Securities, which shall be deemed to constitute a request by such
Person that the books and records of the Partnership reflect such Person's
admission as a Limited Partner, such Person shall be admitted to the Partnership
as a Limited Partner and shall become bound by this Agreement.
(b) Following the first admission of Preferred Security Holders to the
Partnership as Limited Partners pursuant to paragraph (a) above, the Initial
Limited Partner shall receive the return of its capital contribution without
interest or deduction, but will continue to be a limited partner of the
Partnership. While the Initial Limited Partner shall continue to be a limited
partner of the Partnership, the Initial Limited Partner shall only have such
rights, if any, as are expressly provided to the Initial Limited Partner
pursuant to this Agreement.
(c) The name and mailing address of each Partner and the amount
contributed by such Partner to the capital of the Partnership shall be listed on
the books and records of the Partnership. The General Partner shall be required
to update the books and records from time to time as necessary to accurately
reflect the information therein.
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ARTICLE II
DEFINED TERMS
SECTION 2.1 DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Article II shall, for the purposes of this Agreement, have the
meanings herein specified.
"Act" means the Delaware Revised Uniform Limited Partnership Act, 6 Del.C.
Section 17-101, et seq., as amended from time to time.
"Action" has the meaning set forth in Section 6.1.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an officer, director, general partner or employee, any
other entity for which the specified Person acts in any such capacity.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership of the Partnership, as amended, modified, supplemented or restated
from time to time.
"Book Entry Interests" means a beneficial interest in the LP Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 10.4.
"Business Day" means any day other than a day on which banking institutions
in The City of New York are authorized or required by law to close.
"Capital Account" has the meaning set forth in Section 3.3.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware on May 3,
1995, and any and all amendments thereto and restatements thereof.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that
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is acting as depository for the Preferred Securities and in whose name shall be
registered a global LP Certificate and which shall undertake to effect book
entry transfers and pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding federal tax statute enacted after the date of this
Agreement. A reference to a specific section of the Code refers not only to
such specific section but also to any corresponding provision of any federal tax
statute enacted after the date of this Agreement, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Agreement containing such reference.
"Corporation" has the meaning set forth in the forepart of this Agreement.
"Covered Person" means any Partner, any Affiliate of a Partner or any
officers, directors, shareholders, partners, employees, representatives or
agents of a Partner or its respective Affiliates, or any employee or agent of
the Partnership or its Affiliates or any Special Representative.
"Definitive LP Certificates" has the meaning set forth in Section 10.4.
"Dividends" means the distributions of income paid or payable to any
Limited Partner who is a Preferred Security Holder pursuant to the terms of the
Preferred Securities held by such Limited Partner, including any interest
payable in respect of arrearages.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fiscal Year" means (i) the period commencing upon the formation of the
Partnership and ending on December 31, 1995, and (ii) any subsequent twelve (12)
month period commencing on January 1 and ending on December 31.
"General Partner" means the Corporation, its successors and assigns, and
any additional or successor general partner of the Partnership admitted as a
general partner of the Partnership pursuant to this Agreement.
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"Guarantee" means the Guarantee Agreement dated as of ____________________,
1995 of the Corporation in respect of the Preferred Securities.
"Holders" means, with respect to a series of Preferred Securities,
Preferred Security Holders in whose name one or more LP Certificates
representing Preferred Securities of such series are registered.
"Indemnified Person" means the General Partner, any Special Representative,
any Affiliate of the General Partner or any Special Representative or any
officers, directors, shareholders, members, managers, partners, employees,
representatives or agents of the General Partner or any Special Representative,
or any employee or agent of the Partnership or its Affiliates.
"Indenture" means the Indenture dated as of _____________________, 1995
between the Corporation and UMB Bank, N.A., as Trustee, pursuant to which
subordinated debentures of the Corporation may be issued.
"Initial Limited Partner" means UCU Finance Corp., a Delaware corporation.
"Initial Series A Limited Partner" means the Persons admitted as Limited
Partners pursuant to Section 1.8(a) in connection with the initial issuance by
the Partnership of Series A Preferred Securities.
"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including, without limitation, its interest
in the capital, profits, losses and distributions of the Partnership.
"Junior Subordinated Debentures" means any series of debentures issued by
the Corporation under the Indenture.
"Limited Partner" means any Person who is admitted to the Partnership as a
limited partner of the Partnership pursuant to the terms of this Agreement
including the Preferred Security Holders, in each such Person's capacity as a
limited partner of the Partnership.
"Liquidation Distribution" for any Preferred Security Holder means the
distribution which such Preferred Security Holder is entitled to receive upon
any voluntary or involuntary dissolution, winding up or termination of the
Partnership as provided in the Action relating to the Preferred Securities.
"Liquidator" has the meaning set forth in Section 11.3.
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"Loss Carried Forward Amount" means as of the first day of any month for
any series of Preferred Securities, an amount equal to the excess of (x) all Net
Loss allocated to the Holders of such series of Preferred Securities from the
date of issuance of such series of Preferred Securities through and including
the day prior to the first day of such month pursuant to Section 4.1(b)(ii) over
(y) the amount of Net Income allocated to the Holders of such series of
Preferred Securities pursuant to Section 4.1(a)(ii) in all prior calendar
months.
"LP Certificate" means a certificate of partnership interest substantially
in the form attached hereto as Annex A, evidencing the Preferred Securities held
by a Limited Partner.
"Majority in liquidation preference of the Preferred Securities" means
Holder(s) of a series of Preferred Securities or, as the context may require,
Holder(s) of more than one series of Preferred Securities voting as a class, who
are the record owners of Preferred Securities whose liquidation preference
(including the stated preference amount that would be paid on redemption or
maturity, plus accrued and unpaid dividends, whether or not declared, to the
date upon which the voting percentages are determined) represents more than 50%
of the above stated liquidation preference of all Preferred Securities of such
series or, as applicable, multiple series.
"Net Income" and "Net Loss", respectively, for any period means the income
and loss, respectively, of the Partnership for such period as determined in
accordance with the method of accounting followed by the Partnership for federal
income tax purposes, including, for all purposes, any income exempt from tax and
any expenditures of the Partnership which are described in Code Section
705(a)(2)(B); provided, however, that any item allocated under Section 4.2 shall
be excluded from the computation of Net Income and Net Loss.
"Partners" means the General Partner and the Limited Partners,
collectively, where no distinction is required by the context in which the term
is used.
"Partnership" means the limited partnership heretofore formed and continued
pursuant to this Agreement under the name UtiliCorp Capital L.P."
"Paying Agent" has the meaning set forth in Section 10.7.
"Person" means any individual, corporation, limited liability company,
association, partnership, trust or other entity.
"Preferred Securities" means the limited partner interests in the
Partnership described in Article VI.
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"Preferred Security Holder" has the meaning set forth in Section 10.3.
"Preferred Security Owner" means, with respect to a Book Entry Interest, a
Person who is the beneficial owner of such Book Entry Interest, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Pricing Agreement" means a Pricing Agreement between the Partnership and
the Corporation relating to the issuance of the Preferred Securities.
"Purchase Price" for any Preferred Security means the amount paid for such
Preferred Security in the initial sale by the Partnership of such Preferred
Security.
"Regulations" means a Treasury Regulation promulgated under the Code.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Securities" means the initial limited partner interests
in the Partnership designated as "Series A Preferred Securities" that are issued
by the Partnership pursuant to a duly established Action.
"66-2/3% in liquidation preference of the Preferred Securities" means
Holder(s) of a series of Preferred Securities or, as the context may require,
Holder(s) of more than one series of Preferred Securities voting as a class, who
are the record owners of Preferred Securities whose liquidation preference
(including the stated preference amount that would be paid on redemption or
maturity, plus accrued and unpaid dividends, whether or not declared, to the
date upon which the voting percentages are determined) represents more than
66-2/3% of the above stated liquidation preference of all Preferred Securities
of such series or, as applicable, multiple series.
"Special Representative" means a Person designated as a special
representative of the Partnership and the Limited Partners in the manner
provided in a duly established Action.
"Tax Matters Partner" means the General Partner designated as such in
Section 9.9 hereof.
"10% in liquidation preference of the Preferred Securities" means
Holders(s) of a series of Preferred Securities or, as the
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context may require, Holder(s) of more than one series of Preferred Securities
voting as a class, who are the record owners of Preferred Securities whose
liquidation preference (including the stated preference amount that would be
paid on redemption or maturity, plus accrued and unpaid dividends, whether or
not declared, to the date upon which the voting percentages are determined)
represents more than 10% of the above stated liquidation preference of all
Preferred Securities of such series or, as applicable, multiple series.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Trustee" means the Trustee under the Indenture.
"Underwriting Agreement" means an Underwriting Agreement, among the
Partnership, the Corporation and the underwriters named therein, relating to the
issuance of the Preferred Securities.
SECTION 2.2 HEADINGS. The headings and subheadings in this Agreement are
included for convenience and identification only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION
OF PREFERRED SECURITY HOLDER'S
INTEREST; CAPITAL ACCOUNTS
SECTION 3.1 CAPITAL CONTRIBUTIONS.
(a) The General Partner shall contribute in the aggregate, to the capital
of the Partnership an amount equal to at least 3% of the total capital
contributions to the Partnership, after taking into account the contribution of
the Initial Series A Limited Partner referred to in paragraph (c) of this
Section 3.1. Subject to Section 4.1(c), the General Partner shall from time to
time make such additional capital contributions as are necessary to maintain its
Capital Account balance at least equal to 3% of the aggregate positive Capital
Account balances of all Partners.
(b) The Initial Limited Partner has, prior to the date hereof, contributed
the amount of $50 to the capital of the Partnership, which amount is being
returned to the Initial Limited Partner.
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(c) With respect to the Initial Series A Limited Partner, there shall be
contributed to the capital of the Partnership the amount of the Purchase Price
for the Series A Preferred Securities acquired by it (such amount being such
Person's capital contribution to the Partnership).
(d) With respect to each Person (other than the Initial Series A Limited
Partner) who is issued a Preferred Security by the Partnership in connection
with the initial issuance by the Partnership of such Preferred Security there
shall be contributed to the capital of the Partnership an amount equal to the
Purchase Price for such Preferred Security (such amount being such Person's
capital contribution to the Partnership).
(e) No Limited Partner shall at any time be required to make any
additional capital contributions to the Partnership.
SECTION 3.2 PREFERRED SECURITY HOLDER'S INTEREST REPRESENTED BY PREFERRED
SECURITIES. A Preferred Security Holder's interest in the Partnership shall be
represented by the Preferred Securities held by such Preferred Security Holder.
Each Preferred Security Holder's respective Preferred Securities shall be set
forth on the books and records of the Partnership. Each Preferred Security
Holder hereby agrees that its interest in the Partnership and in its Preferred
Securities shall for all purposes be personal property. No Preferred Security
Holder shall have an interest in specific Partnership property.
SECTION 3.3 CAPITAL ACCOUNTS. An individual capital account (a "Capital
Account") shall be established and maintained on the books of the Partnership
for each Partner in compliance with Regulations Sections 1.704- 1(b)(2)(iv) and
1.704-2, as amended. Subject to the preceding sentence, each Capital Account
will be credited with the capital contributions made and the profits allocated
to such Partner (or predecessor in interest) and debited by the distributions
made and losses allocated to the Partner (or predecessor thereof).
SECTION 3.4 INTEREST ON CAPITAL CONTRIBUTIONS. No Partner shall be
entitled to interest on or with respect to any capital contribution to the
Partnership.
SECTION 3.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS. No Partner
shall be entitled to withdraw any part of such Partner's capital contribution to
the Partnership or to receive any distributions from the Partnership, except as
provided in this Agreement.
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ARTICLE IV
ALLOCATIONS
SECTION 4.1 PROFITS AND LOSSES. Except as provided in Section 4.2, (a)
the Partnership's Net Income for each calendar month shall be allocated as
follows:
(i) First, to the Holders of each series of Preferred Securities as
of the record date in such calendar month for the payment of
Dividends on such series of Preferred Securities in an amount
equal to the excess of (x) all Dividends accrued on such series
of Preferred Securities (in accordance with the Action creating
such series) from their date of issuance through and including
the close of such calendar month over (y) the amount of Net
Income allocated to the Holders of such series of Preferred
Securities pursuant to this Section 4.1(a)(i) in all prior
calendar months; provided, however, that (A) as to any series of
Preferred Securities as to which Dividends are not cumulative, no
Dividend shall be deemed to accrue until the Partnership has
actually paid (or set aside money to pay) such Dividend and (B)
Dividends as to Preferred Securities that are cumulative and are
not payable at the end of each calendar month shall be deemed to
accrue in a manner consistent with the Action creating such
Preferred Securities. Amounts allocated to all Holders of any
series of Preferred Securities shall be allocated among such
Holders in proportion to the number of Preferred Securities of
such series held by such Holders.
(ii) Second, to the Holders of each series of Preferred Securities up
to an amount equal to the Loss Carried Forward Amount for such
series as of the first day of such month. Amounts allocated to
all Holders of any series of Preferred Securities shall be
allocated among such Holders in proportion to the number of
Preferred Securities of such series held by such Holders.
(iii) Any remaining Net Income shall be allocated to the General
Partner.
(b) The Partnership's Net Loss for any Fiscal Period shall be allocated as
follows:
(i) First, to the General Partner until the General Partner's Capital
Account is reduced to zero;
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provided, however, that the aggregate amount of Net Losses
allocated to the General Partner pursuant to this Section
4.1(b)(i) shall not exceed the sum of such percentage of the
total capital contributions of all Partners as is representative
of the General Partner's capital contribution to the Partnership
plus the aggregate Net Income allocated to the General Partner
pursuant to Section 4.1.
(ii) Second, to the Holders of each series of Preferred Securities in
proportion to the aggregate Capital Account balances of the
Holders of such series of Preferred Securities (calculated taking
into account only contributions, distributions and allocations
related to such series), until the Capital Account balances of
such Holders are reduced to zero; provided, however, that the
General Partner shall make appropriate adjustments in these
allocations, in accordance with Section 4.1(c) with respect to
any Preferred Securities as to which Net Income has been
allocated with respect to Dividends that accrued but were not
paid. Amounts allocated to the Holders of any series of Preferred
Securities shall be allocated among such Holders in proportion to
the number of Preferred Securities of such series held by such
Holders.
(iii) Any remaining Net Loss shall be allocated to the General Partner.
(c) The General Partner shall make such changes to the allocations in
Sections 4.1(a) and 4.1(b) in the year of the Partnership's liquidation as it
deems reasonably necessary so that amounts distributed to the Preferred Security
Holders in such year in accordance with Section 11.4(a)(ii) shall equal their
Liquidation Distributions; provided, however, that no allocation pursuant to
this Section 4.1(c) may result in the General Partner being required to make any
capital contributions pursuant to Section 3.1.
SECTION 4.2 OTHER ALLOCATION PROVISIONS.
(a) For purposes of determining the profits, losses or any other items
allocable to any period, profits, losses and any such other items shall be
determined on a daily, monthly or other basis, as determined by the General
Partner using any method that is permissible under Section 706 of the Code and
the Regulations.
(b) The Partners are aware of the income tax consequences of the
allocations made by this Article IV and hereby agree to be
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bound by the provisions of this Article IV in reporting their shares of
Partnership income and loss for income tax purposes.
(c) Notwithstanding anything to the contrary that may be expressed or
implied in this Article IV, the interest of the General Partner in each item of
income, gain, loss, deduction and credit will be equal to at least (i) at any
time that aggregate capital contributions to the Partnership are equal to or
less than $50,000,000, 1% of each such item and (ii) at any time that aggregate
capital contributions to the Partnership are greater than $50,000,000, at least
1%, multiplied by a fraction (not exceeding one and not less than 0.2), the
numerator of which is $50,000,000 and the denominator of which is the lesser of
the aggregate Capital Account balances of the Capital Accounts of all Partners
at such time and the aggregate capital contributions to the Partnership of all
Partners at such time, of such item. The General Partner will make such
additional capital contributions as are necessary so that the foregoing
requirement is made without reduction in the total amount of income or gain
allocated to the Limited Partners.
(d) (i) If during any taxable year, a Partner unexpectedly receives an
adjustment, allocation or distribution described in Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes or increases a deficit balance
in the Partner's Adjusted Capital Account (as defined below), there shall be
allocated to the Partner items of Partnership income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross income and
gain for such year) in an amount and manner sufficient to eliminate such
deficit. The foregoing is intended to be a "qualified income offset" provision
as described in Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted and applied in all respects in accordance with that Regulation.
A Partner's "Adjusted Capital Account" at any time shall equal the
Partner's Capital Account at such time (x) increased by the sum of (A) the
amount of the Partner's share of Partnership minimum gain (as defined in
Regulations Section 1.704-2(g)(1) and (3)) and (ii) the amount of the Partner's
share of the minimum gain attributable to a "partner non-recourse debt" (as
defined in Regulations Section 1.704-2(i)(5)) and (y) decreased by reasonably
excepted adjustments, allocations and distributions described in Regulations
Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
(ii) While this Agreement does not provide certain provisions required
by Regulations Sections 1.704-1(b) and 1.704-2 because those
provisions apply to transactions that are not expected to occur,
the Partners intend that the allocations under Section 4.1
conform to Regulations Sections 1.704-1(b) and 1.704-2
(including, without limitation, the minimum gain chargeback,
chargeback of partner nonrecourse debt minimum gain and partner
nonrecourse debt provisions of such Regulation), and the General
Partner shall make
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such changes in the allocations under Section 4.1 as it believes
are reasonably necessary to meet the requirements of such
Regulations.
(e) Solely for the purpose of adjusting the Capital Accounts of the
Partners, and not for tax purposes, if any property is distributed in kind to
any Partner, the difference between its fair market value and its book value at
the time of distribution shall be treated as gain or loss recognized by the
Partnership and allocated pursuant to the provisions of Section 4.1; provided,
however, that Net Income and Net Loss allocated as a result of the distribution
of any series of Junior Subordinated Debentures to the Holders of any series of
Preferred Securities or to the General Partner (or both) shall be allocated to
the Partner receiving the Junior Subordinated Debentures in proportion to the
amount of Junior Subordinated Debentures distributed to them. For this purpose,
the fair market value of any property shall be determined by the General Partner
in its sole discretion, provided, however, that the value of any Junior
Subordinated Debenture shall at all times be treated as equal to the value of
any Preferred Security if the interest rate on and principal amount of the
Junior Subordinated Debenture is the same as the Dividend payable on and the
liquidation preference with respect to the Preferred Security.
SECTION 4.3 ALLOCATIONS FOR INCOME TAX PURPOSES. The income, gains,
losses, deductions and credits of the Partnership shall be allocated in the same
manner as the items entering into the computation of Net Income and Net Loss
were allocated under Sections 4.1 and 4.2; provided, however, that solely for
federal, state and local income and franchise tax purposes and not for book or
Capital Account purposes, income, gain, loss and deduction with respect to any
property properly carried on the Partnership's books at a value other than the
tax basis of such property shall be allocated in a manner determined in the
General Partner's discretion, so as to take into account (consistently with Code
Section 704(c) principles) the difference between such property's book value and
its tax basis.
SECTION 4.4 WITHHOLDING. The Partnership shall comply with withholding
requirements under federal, state and local law and shall remit amounts withheld
to and file required forms with applicable jurisdictions. To the extent that the
Partnership is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Partner, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Partner. To the fullest extent permitted by applicable law, in the event of any
claimed over- withholding, Partners shall be limited to an action against the
applicable jurisdiction. If the amount withheld was not withheld from actual
distributions, the Partnership may reduce subsequent distributions by the amount
of such withholding. Each Partner agrees to furnish
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the Partnership with any representations and forms as shall reasonably be
requested by the Partnership to assist it in determining the extent of, and in
fulfilling, its withholding obligations.
ARTICLE V
DIVIDENDS
SECTION 5.1 DIVIDENDS. Limited Partners shall receive periodic Dividends,
if any, redemption payments and liquidation distributions in accordance with the
applicable terms of the Preferred Securities. Subject to the rights of the
Preferred Securities, all remaining cash shall be distributed to the General
Partner at such time as the General Partner shall determine.
SECTION 5.2 LIMITATIONS ON DISTRIBUTIONS. Notwithstanding any provision
to the contrary contained in this Agreement, the Partnership shall not make a
distribution to any Partner on account of its interest in the Partnership if
such distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE VI
ISSUANCE OF PREFERRED SECURITIES
SECTION 6.1 GENERAL PROVISIONS REGARDING PREFERRED SECURITIES.
(a) The aggregate number of Preferred Securities which the Partnership
shall have authority to issue is unlimited.
(b) The powers, preferences, special rights and limitations of the
Preferred Securities shall be as follows:
(i) The payment of Dividends and payments on dissolution of the
Partnership or on redemption in respect of Preferred Securities
shall be guaranteed by the Corporation pursuant to and to the
extent set forth in the Guarantee. The Preferred Security Holders
hereby authorize the General Partner to hold the Guarantee on
behalf of the Preferred Security Holders. In the event of the
appointment of a Special Representative to, among other things,
enforce the Guarantee, the Special Representative may take
possession of the Guarantee for such purpose. If no Special
Representative has been appointed to enforce the Guarantee, the
General Partner has the right to enforce the Guarantee on
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behalf of the Preferred Security Holders. The Holders of not less
than 10% in liquidation preference of the Preferred Securities
have the right to direct the time, method and place of conducting
any proceeding for any remedy available in respect of the
Guarantee including the giving of directions to the General
Partner or the Special Representative, as the case may be. If the
General Partner or the Special Representative fails to enforce
the Guarantee as above provided, a Preferred Security Holder may
institute a legal proceeding directly against the guarantor to
enforce its rights under the Guarantee, without first instituting
a legal proceeding against the Partnership or any other Person.
The Preferred Security Holders, by acceptance of such Preferred
Securities, hereby agree to the subordination provisions and
other terms of the Guarantee;
(ii) The Preferred Securities may be issued from time to time by the
Partnership as Preferred Securities of one or more series and the
General Partner is expressly authorized, prior to issuance, in a
written action or actions (each, an "Action") providing for the
issue of Preferred Securities of each particular series, to fix
the following:
(A) the distinctive designation of such series which shall
distinguish it from other series;
(B) the number of Preferred Securities included in such series,
which number may be increased or decreased from time to time
unless otherwise provided by the General Partner in creating
the series;
(C) the annual Dividend rate (or method of determining such
rate) for Preferred Securities of such series and the date
or dates upon which such Dividends shall be payable;
provided, however, Dividends on any series of Preferred
Securities shall be payable on a monthly basis to Holders of
such series of Preferred Securities as of a record date in
each month during which such series of Preferred Securities
are outstanding;
(D) whether Dividends on the Preferred Securities of such series
shall be cumulative, and, in the case of Preferred
Securities of any series having cumulative Dividend rights,
the date or
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dates or method of determining the date or dates from which
Dividends on the Preferred Securities of such series shall
be cumulative;
(E) the amount or amounts which shall be paid out of the assets
of the Partnership to the Holders of the Preferred
Securities of such series upon voluntary or involuntary
dissolution, winding up or termination of the Partnership;
(F) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Preferred
Securities of such series may be redeemed or purchased, in
whole or in part, at the option of the Partnership or the
General Partner;
(G) The obligation, if any, of the Partnership to purchase or
redeem Preferred Securities of such series and the price or
prices at which, the period or periods within which and the
terms and conditions upon which the Preferred Securities of
such series shall be purchased or redeemed, in whole or in
part, pursuant to such obligation;
(H) the voting rights, if any, of the Preferred Securities of
such series in addition to those required by law, including
the number of votes per Preferred Security and any
requirement for the approval by the Holders of Preferred
Securities, or of the Preferred Securities of one or more
series, or of both, as a condition to specified action or
amendments to this Agreement; and
(I) any other relative rights, powers, preferences or
limitations of the Preferred Securities of the series not
inconsistent with this Agreement or with applicable law.
In connection with the foregoing and without limiting the
generality thereof, the General Partner is hereby expressly
authorized, without the vote or approval of any Preferred
Security Holder, (i) to take any Action to create under the
provisions of this Agreement a series of Preferred Securities
that was not previously outstanding and (ii) to admit Preferred
Security Holders as Limited Partners of the Partnership. Without
the vote or
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approval of any Preferred Security Holder, the General Partner
may execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection with the issue
from time to time of Preferred Securities in one or more series
as shall be necessary, convenient or desirable to reflect the
issue of such series. The General Partner shall do all things it
deems to be appropriate or necessary to comply with the Act and
is authorized and directed to do all things it deems to be
necessary or permissible in connection with any future issuance,
including compliance with any statute, rule, regulation or
guideline of any federal, state or other governmental agency or
any securities exchange.
Any Action or Actions taken by the General Partner pursuant
to the provisions of this paragraph (ii) shall be deemed an
amendment and supplement to and part of this Agreement.
(iii) The proceeds received by the Partnership from the issuance of any
series of Preferred Securities, shall be invested by the
Partnership in Junior Subordinated Debentures with (A) an
aggregate principal amount equal to such aggregate proceeds and
(B) an interest rate equal to the Dividend rate of such series of
Preferred Securities and the proceeds received by the Partnership
from the capital contribution of the General Partner at the time
of issuance of a series of Preferred Securities shall be invested
by the Partnership in debt securities of the General Partner with
maturities no greater than, and having a ranking not subordinate
to, such Junior Subordinate Debentures.
(iv) So long as any series of Junior Subordinated Debentures are held
by the Partnership, the General Partner shall not (i) direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to such series, (ii) waive
any past default which is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Junior Subordinated
Debentures of such series shall be due and payable or (iv)
consent to any amendment, modification or termination of the
Indenture without, in each case, obtaining the prior approval
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of the Holders of at least 66 2/3% in liquidation preference of
all series of Preferred Securities who would be affected thereby
if their Preferred Securities were to be exchanged for Junior
Subordinated Debentures, acting as a single class; provided,
however, that where a consent under the Indenture would require
the consent of each holder of Junior Subordinated Debentures
affected thereby, no such consent shall be given by the General
Partner without the prior consent of each Holder of all series of
Preferred Securities who would be affected thereby if their
Preferred Securities were to be exchanged for Junior Subordinated
Debentures. The General Partner shall not revoke any action
previously authorized or approved by a vote of any series of
Preferred Securities who would be affected thereby if their
Preferred Securities were to be exchanged for Junior Subordinated
Debentures. The General Partner shall notify all Holders of any
series of Preferred Securities of any notice of default received
from the Trustee with respect to the related series of Junior
Subordinated Debentures.
(v) The Partnership may not issue any limited partner interests in
the Partnership (including, without limitation, any series of
Preferred Securities), unless such series of Preferred Securities
ranks PARI PASSU with each other series of Preferred Securities
then outstanding as regards (A) participation in profits and
Dividends of the Partnership and (B) participation in the assets
of the Partnership. All Preferred Securities shall rank senior to
the General Partner's Interest in respect of the right to receive
Dividends and the right to receive payments out of the assets of
the Partnership upon voluntary or involuntary dissolution,
winding up or termination of the Partnership. All Preferred
Securities redeemed, purchased or otherwise acquired by the
Partnership (including Preferred Securities surrendered for
conversion or exchange) shall be canceled.
(vi) No Holder of a Preferred Security shall be entitled as a matter
of right to subscribe for or purchase, or have any preemptive
right with respect to, any part of any new or additional issue of
Preferred Securities of any class whatsoever, or of securities
convertible into any Preferred Securities of any class
whatsoever, whether now or
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hereafter authorized and whether issued for cash or other
consideration or by way of a Dividend.
SECTION 6.2 MERGERS.
The Partnership shall not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. The General Partner may, without the consent of any Person,
including the Holders of the Preferred Securities, cause the Partnership to
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to, a
limited partnership or a trust (including a business trust) organized as such
under the laws of any state of the United States of America (a "Successor
Entity"); provided, that (i) such Successor Entity either (x) expressly assumes
all of the obligations of the Partnership with respect to the Preferred
Securities (with such changes as are appropriate to reflect the legal status of
such Successor Entity as a trust in the case that such Successor Entity is a
trust) or (y) substitutes for the Preferred Securities other securities (the
"Successor Securities") so long as the Successor Securities rank, with respect
to participation in the profits and Dividends or in the assets of the Successor
Entity, at least as high as the Preferred Securities rank with respect to
participation in the profits and dividends or in the assets of the Partnership,
(ii) UtiliCorp United Inc. expressly acknowledges such Successor Entity as the
holder of the Junior Subordinated Debentures, (iii) the Preferred Securities or
the Successor Securities are listed, or will be listed on notification of
issuance, on any national securities exchange or other organization on which the
Preferred Securities are then listed, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Successor Securities to be downgraded by any
nationally recognized statistical rating organization, as that term is defined
by the Securities and Exchange Commission for purposes of Rule 436(g)(2) under
the Securities Act, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the material powers,
preferences and other special rights of holders of Preferred Securities or the
Successor Securities in any material respect under the documents governing the
Preferred Securities or the Successor Securities (a merger, consolidation,
amalgamation with or into, replacement by, or conveyance, transfer or lease
to, a trust, together with such changes as the General Partner determines are
necessary or appropriate to reflect such merger, consolidation, amalgamation
with or into, replacement by, or conveyance, transfer or lease to, a trust
not being deemed for this purpose as having any adverse affect on the material
powers, preferences and other special rights of the holders of the Preferred
Securities or the Successor Securities in any material
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respect)), (vi) such Successor Entity has a purpose substantially identical to
that of the Partnership (with such changes as are necessary or appropriate to
reflect the legal status of such Successor Entity as a trust in the case that
such Successor Entity is a trust) and (vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, UtiliCorp United Inc.
has received an opinion of nationally recognized independent counsel to the
Partnership experienced in such matters to the effect that (x) such Successor
Entity will be treated as either a partnership or a grantor trust for federal
income tax purposes, (y) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, UtiliCorp United Inc. and such
Successor Entity will be in compliance with the Investment Company Act of 1940,
as amended (the "1940 Act") without registering thereunder as an investment
company, and (z) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease will not cause the Holders of the Preferred
Securities or the Successor Securities to be generally liable for the debts,
obligations or liabilities of the Partnership or the Successor Entity;
provided, however, that if such Successor Entity is a trust, such merger,
consolidation, amalgamation with or into, replacement by, or conveyance,
transfer or lease to, such trust will be effective only on the last record
date for the payment of dividends on the Preferred Securities in any year.
Without limiting the generality of the foregoing, and notwithstanding any
other provision of the Agreement subject to the satisfaction of the foregoing
conditions, the General Partner may without the consent of any person,
including the Holders of the Preferred Securities, (i) form or cause to be
formed a Successor Entity and contribute or cause to be contributed the
Junior Subordinated Debentures (and any rights to receive interest payment on
such Subordinated Debentures) to the Successor Entity in exchange for all of
the equity or beneficial interests in the Successor Entity, and (ii) dissolve
the Partnership and, after satisfaction of liabilities to creditors as required
by the Delaware Revised Limited Partnership, cause the equity or beneficial
interests in the Successor Entity to be distributed to the General Partner
and the Holders of each series of Preferred Securities in liquidation of such
Holders' respective interests in the Partnership. The Partnership may,
without the consent of any person, including Holders of the Preferred
Securities, take any other action having similar consequences to the
foregoing. Notwithstanding any other provision of this Agreement, in the
event that the Partnership is replaced by, or conveys, transfers or leases
its properties and assets substantially as an entirety to a limited
partnership or a trust as permitted by the foregoing, the Partnership shall
be discharged of all responsibilities to Holders of the Preferred Securities
under this Agreement and the Preferred Securities and the Holders of the
Preferred Securities shall cease to be limited partners of the Partnership
and shall cease to have an interest in the Partnership.
ARTICLE VII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
SECTION 7.1 BOOKS AND RECORDS.
(a) Proper and complete records and books of account of the Partnership
shall be kept by the General Partner in which shall be entered fully and
accurately all transactions and other matters relative to the Partnership's
business as are usually entered into records and books of account maintained by
Persons engaged in businesses of a like character, including a Capital Account
for each Partner. The books and records of the Partnership, together with a copy
of this Agreement and a certified copy of the Certificate, shall at all times be
maintained at the principal office of the Partnership and shall be open to the
inspection and examination of the Limited Partners or their duly authorized
representatives for any purpose reasonably related to its Interest during
reasonable business hours.
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(b) Notwithstanding any other provision of this Agreement, the General
Partner may, to the maximum extent permitted by applicable law, keep
confidential from the Partners any information the disclosure of which the
General Partner reasonably believes is not in the best interests of the
Partnership or is adverse to the interests of the Partnership or which the
Partnership or the General Partner is required by law or by an agreement with
any Person to keep confidential.
(c) Within three months after the close of each Fiscal Year, the General
Partner shall transmit to each Partner a statement indicating such Partner's
share of each item of Partnership income, gain, loss, deduction or credit for
such Fiscal Year for federal income tax purposes.
SECTION 7.2 ACCOUNTING METHOD. For both financial and tax reporting
purposes and for purposes of determining profits and losses, the books and
records of the Partnership shall be kept on the accrual method of accounting
applied in a consistent manner and shall reflect all Partnership transactions
and be appropriate and adequate for the Partnership's business.
ARTICLE VIII
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
SECTION 8.1 LIMITATIONS. The Limited Partners shall not participate in
the management or control of the Partnership's business, property or other
assets nor shall the Limited Partners transact any business for the Partnership,
nor shall the Limited Partners have the power to act for or bind the
Partnership, said powers being vested solely and exclusively in the General
Partner. The Limited Partners shall have such rights as are set forth herein,
including any Action and as set forth in the Guarantee and the Indenture. The
Limited Partners shall have no interest in the properties or assets of the
General Partner, or any equity therein, or in any proceeds of any sales thereof
(which sales shall not be restricted in any respect), by virtue of acquiring or
owning an Interest.
SECTION 8.2 LIABILITY. Subject to the provisions of the Act, no Limited
Partner shall be liable for the repayment, satisfaction or discharge of any
debts or other obligations of the Partnership in excess of the Capital Account
balance of such Limited Partner.
SECTION 8.3 PRIORITY. Except as may be provided in any Action, no Limited
Partner shall have priority over any other Limited Partner as to Partnership
allocations or distributions.
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ARTICLE IX
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER
SECTION 9.1 AUTHORITY. Subject to the limitations provided in this
Agreement, the General Partner shall have exclusive and complete authority and
discretion to manage the operations and affairs of the Partnership and to make
all decisions regarding the business of the Partnership. Any action taken by the
General Partner shall constitute the act of and serve to bind the Partnership.
In dealing with the General Partner acting on behalf of the Partnership, no
Person shall be required to inquire into the authority of the General Partner to
bind the Partnership. Persons dealing with the Partnership are entitled to rely
conclusively on the power and authority of the General Partner as set forth in
this Agreement.
SECTION 9.2 POWERS AND DUTIES OF GENERAL PARTNER. Except as otherwise
specifically provided herein, the General Partner shall have all rights and
powers of a general partner under the Act, and shall have all authority, rights
and powers in the management of the Partnership business to do any and all other
acts and things necessary, proper, convenient or advisable to effectuate the
purposes of this Agreement, including by way of illustration but not by way of
limitation, the following:
(a) to secure the necessary goods and services required in performing
the General Partner's duties for the Partnership;
(b) to exercise all powers of the Partnership, on behalf of the
Partnership, in connection with enforcing the Partnership's rights and
interest under the Junior Subordinated Debentures;
(c) to issue Preferred Securities, and series thereof, in accordance
with this Agreement;
(d) to establish a record date with respect to all actions to be
taken hereunder that require a record date to be established, including
with respect to Dividends and voting rights and to make determinations as
to the payment of Dividends, and make all other required payments to
Preferred Security Holders and to the General Partner as the Partnership's
paying agent;
(e) to open, maintain and close bank accounts and to draw checks and
other orders for the payment of money;
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(f) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the
Partnership;
(g) to deposit, withdraw, invest, pay, retain and distribute the
Partnership's funds in a manner consistent with the provisions of this
Agreement;
(h) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Partnership's valid existence,
rights, franchises and privileges as a limited partnership under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Limited
Partners or to enable the Partnership to conduct the business in which it
is engaged;
(i) to take all action, not inconsistent with applicable law, the
Certificate or this Agreement, as long as such action does not adversely
affect the interests of the Preferred Security Holders, necessary to
conduct its affairs and to operate the Partnership in such a way that the
Partnership would not be deemed an "investment company" required to be
registered under the 1940 Act or taxed as a corporation for federal income
tax purposes and so that the Junior Subordinated Debentures will be treated
as indebtedness of the Corporation for federal income tax purposes;
(j) to cause the Partnership to enter into and perform, on behalf of
the Partnership, an Underwriting Agreement and a Pricing Agreement and to
cause the Partnership to purchase the Junior Subordinated Debentures
without any further act, vote or approval of any Partner; and
(k) to execute and deliver any and all documents or instruments,
perform all duties and powers and do all things for and on behalf of the
Partnership in all matters necessary or desirable or incidental to the
foregoing.
SECTION 9.3 LIABILITY. Except as expressly set forth in this Agreement,
(a) the General Partner shall not be personally liable for the return of any
portion of the capital contributions (or any return thereon) of the Limited
Partners; (b) the return of such capital contributions (or any return thereon)
shall be made solely from assets of the Partnership; and (c) the General Partner
shall not be required to pay to the Partnership or to any Limited Partner any
deficit in any Limited Partner's Capital Account upon dissolution or otherwise.
SECTION 9.4 EXCULPATION. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the
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Partnership or any Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Partnership and in a manner reasonably believed to
be within the scope of the authority conferred on such Indemnified Person by
this Agreement or by law except that an Indemnified Person shall be liable for
any such loss, damage or claim incurred by reason of such Indemnified Person's
gross negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Partnership and upon such information, opinions,
reports or statements presented to the Partnership by any Person as to matters
the Indemnified Person reasonably believes are within such other Persons's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Partnership, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to Partners might properly be paid.
SECTION 9.5 FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Partnership or to any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Partnership or to any other Covered
Person for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein, (i) whenever a conflict of
interest exists or arises between Covered Persons, or (ii) whenever this
Agreement or any other agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Partnership or any Partner, the Indemnified Person
shall resolve such conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or
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obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted or
required to make a decision (i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors affecting
the Partnership or any other Person, or (ii) in its "good faith" or under
another express standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different standard imposed by
this Agreement or by applicable law.
SECTION 9.6 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Partnership
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Partnership and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Agreement, except that no Indemnified Person shall be entitled to
be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence or willful misconduct with
respect to such acts or omissions; provided, however, that any indemnity under
this Section 9.6 shall be provided out of and to the extent of Partnership
assets only, and no Covered Person shall have any personal liability on account
thereof.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the
Partnership prior to the final disposition of such claim, demand, action, suit
or proceeding upon receipt by the Partnership of an undertaking by or on behalf
of the Indemnified Person to repay such amount if it shall be determined that
the Indemnified Person is not entitled to be indemnified as authorized in
Section 9.6(a).
SECTION 9.7 OUTSIDE BUSINESSES. Any Partner or Affiliate thereof may
engage in or possess an interest in other business ventures of any nature of
description, independently or with others, similar or dissimilar to the business
of the Partnership, and the Partnership and the Partners shall have no rights by
virtue of this Agreement in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Partnership, shall not
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be deemed wrongful or improper. No Partner or Affiliate thereof shall be
obligated to present any particular investment opportunity to the Partnership
even if such opportunity is of a character that, if presented to the
Partnership, could be taken by the Partnership, and any Partner or Affiliate
thereof shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
opportunity.
SECTION 9.8 LIMITS ON GENERAL PARTNER'S POWERS. Anything in this
Agreement to the contrary notwithstanding, the General Partner shall not cause
or permit the Partnership to:
(a) acquire any assets other than as expressly provided herein;
(b) possess Partnership property for other than a Partnership purpose;
(c) admit a Person as a Partner, except as expressly provided in this
Agreement;
(d) make any loans to the General Partner or its Affiliates, other than
loans represented by the Junior Subordinated Debentures or other debt
instruments of the Corporation;
(e) perform any act that would subject any Limited Partner to liability as
a general partner in any jurisdiction;
(f) engage in any activity that is not consistent with the purposes of the
Partnership, as set forth in Section 1.3;
(g) confess a judgment against the Partnership;
(h) without the written consent of 66-2/3% in liquidation preference of
the outstanding Preferred Securities have an order for relief entered with
respect to the Partnership or commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of the Partnership's
property, or make any assignment for the benefit of creditors of the
Partnership; it being understood that nothing in this paragraph (h) is to effect
the ability of the Partnership to dissolve pursuant to this Agreement; or
(i) subject to Section 1.3, borrow money or become liable for the
borrowings of any third party or to engage in any financial or other trade or
business.
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SECTION 9.9 TAX MATTERS PARTNER. (a) For purposes of Code Section
6231(a)(7), the "Tax Matters Partner" shall be the General Partner as long as it
remains the general partner of the Partnership. The Tax Matters Partner shall
keep the Limited Partners fully informed of any inquiry, examination or
proceeding.
(b) The General Partner shall not make an election in accordance with
Section 754 of the Code.
(c) The General Partner and the Preferred Security Holders acknowledge
that they intend, for U.S. federal income tax purposes, that the Partnership
shall be treated as a partnership and that the General Partner and the Preferred
Security Holders shall be treated as partners of such partnership for such
purposes.
SECTION 9.10 EXPENSES. The General Partner shall pay (without any
obligation to first exhaust the assets of the Partnership) for all costs and
expenses of the Partnership (including, but not limited to, costs and expenses
relating to the organization of, and offering of limited partner interests in,
the Partnership and costs and expenses relating to the operation of the
Partnership, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services and computing or accounting
equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and costs and expenses incurred in connection with the
acquisition, financing, and disposition of Partnership assets).
ARTICLE X
TRANSFERS OF INTERESTS BY PARTNERS
SECTION 10.1 TRANSFER OF INTERESTS. (a) Preferred Securities shall be
freely transferable by a Preferred Security Holder.
(b) The General Partner may not assign its interest in the Partnership in
whole or in part under any circumstances except to a successor of the
Corporation as permitted under the Indenture. The admission of such successor as
a general partner of the Partnership shall be effective upon the filing of an
amendment to the Certificate with the Secretary of State of the State of
Delaware which indicates that such successor has been admitted as a general
partner in the Partnership. If the General Partner assigns its entire Interest
to a successor of the Corporation as permitted under the Indenture, the General
Partner shall cease to be a general partner in the Partnership simultaneously
with the admission of the successor as a general partner in the Partnership. Any
such successor general partner in the Partnership is hereby
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authorized to and shall continue the business of the Partnership without
dissolution.
(c) No Interest shall be transferred, in whole or in part, except in
accordance with the terms and conditions set forth in this Agreement. Any
transfer or purported transfer of any Interest not made in accordance with this
Agreement shall be null and void.
SECTION 10.2 TRANSFER OF LP CERTIFICATES. The General Partner shall
provide for the registration of LP Certificates and of transfers of LP
Certificates. Upon surrender for registration of transfer of any LP Certificate,
the General Partner shall cause one or more new LP Certificates to be issued in
the name of the designated transferee or transferees. Every LP Certificate
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the General Partner duly executed
by the Preferred Security Holder or his or her attorney duly authorized in
writing. Each LP Certificate surrendered for registration of transfer shall be
cancelled by the General Partner. A transferee of an LP Certificate shall be
admitted to the Partnership as a Limited Partner and shall be entitled to the
rights and subject to the obligations of a Preferred Security Holder hereunder
upon the receipt by a transferee of an LP Certificate. By acceptance of an LP
Certificate, each transferee shall be deemed to have requested admission as a
Limited Partner and to have agreed to be bound by this Agreement. The transferor
of an LP Certificate, in whole, shall cease to be a Limited Partner at the time
that the transferee of such LP Certificate is admitted to the Partnership as a
Limited Partner in accordance with this Section 10.2.
SECTION 10.3 PERSONS DEEMED PREFERRED SECURITY HOLDERS. The Partnership
may treat the Person in whose name any LP Certificate shall be registered on the
books and records of the Partnership as the sole holder of such LP Certificate
and of the Preferred Securities represented by such LP Certificate (the
"Preferred Security Holder") for purposes of receiving Dividends and for all
other purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such LP Certificate or in the
Preferred Securities represented by such LP Certificate on the part of any other
Person, whether or not the Partnership shall have actual or other notice
thereof.
SECTION 10.4 BOOK ENTRY INTERESTS. The LP Certificates, on original
issuance, will be issued in the form of a global LP Certificate or LP
Certificates representing the Book Entry Interests, to be delivered to DTC, the
initial Clearing Agency, by, or on behalf of, the Partnership. Such LP
Certificate or LP Certificates shall initially be registered on the books and
records of the Partnership in the name of Cede & Co., the nominee of DTC, and no
Preferred Security Owner will receive a definitive LP
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Certificate representing such Preferred Security Owner's interests in such LP
Certificate, except as provided in Section 10.7. Unless and until definitive,
fully registered LP Certificates (the "Definitive LP Certificates") have been
issued to the Preferred Security Owners pursuant to Section 10.7:
(i) The provisions of this Section shall be in full force and effect;
(ii) The Partnership and the General Partner shall be entitled to deal
with the Clearing Agency for all purposes of this Agreement
(including the payment of Dividends on the LP Certificates and
receiving approvals, votes or consents hereunder) as the
Preferred Security Holder and the sole holder of the LP
Certificates and shall have no obligation to the Preferred
Security Owner;
(iii) To the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this
Section shall control; and
(iv) The rights of the Preferred Security Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Owners and the Clearing Agency and/or the Clearing Agency
Participants. DTC will make book entry transfers among the
Clearing Agency Participants and receive and transmit payments of
Dividends on the LP Certificates to such Clearing Agency
Participants.
SECTION 10.5 NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Preferred Security Holders is required under this
Agreement, unless and until Definitive LP Certificates shall have been issued to
the Preferred Security Owners pursuant to Section 10.7, the General Partner
shall give all such notices and communications specified herein to be given to
the Preferred Security Holders to the Clearing Agency, and shall have no
obligations to the Preferred Security Owners.
SECTION 10.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY. If any Clearing
Agency elects to discontinue its services as securities depository with respect
to the Preferred Securities, the General Partner may, in its sole discretion,
appoint a successor Clearing Agency with respect to the Preferred Securities.
SECTION 10.7 DEFINITIVE LP CERTIFICATES; APPOINTMENT OF PAYING AGENT(S).
If (i) a Clearing Agency elects to discontinue its services as securities
depository with respect to the Preferred
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Securities and a successor Clearing Agency is not appointed within 90 days after
such discontinuance pursuant to Section 10.6 or (ii) the Partnership elects to
terminate the book entry system through the Clearing Agency, then (a) Definitive
LP Certificates shall be prepared by the Partnership and (b) the General Partner
shall authorize one or more Persons (each, a "Paying Agent") to pay Dividends,
redemption payments or liquidation payments on behalf of the Partnership with
respect to the Preferred Securities. Upon surrender of the global LP Certificate
or LP Certificates representing the Book Entry Interests by the Clearing Agency,
accompanied by registration instructions, the General Partner shall cause
Definitive LP Certificates to be delivered to Preferred Security Owners in
accordance with the instructions of the Clearing Agency. Neither the General
Partner nor the Partnership shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Any Person receiving a Definitive LP Certificate in
accordance with this Article X shall be admitted to the Partnership as a Limited
Partner upon receipt of such Definitive LP Certificate and shall be registered
on the books and records of the Partnership as a Preferred Security Holder. The
Clearing Agency or the nominee of the Clearing Agency, as the case may be, shall
cease to be a Limited Partner under this Section 10.7 at the time that at least
one additional Person is admitted to the Partnership as a Limited Partner in
accordance with this Section 10.7. The Definitive LP Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the General Partner, as evidenced by its execution
thereof.
ARTICLE XI
WITHDRAWAL; DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
SECTION 11.1 WITHDRAWAL OF PARTNERS. Subject to the further provisions of
this Section 11.1 and except as provided in Article X, no Partner shall at any
time retire or withdraw from the Partnership. Any Partner retiring or
withdrawing in contravention of this Section 11.1 shall indemnify, defend and
hold harmless the Partnership and the other Partners from and against any
losses, expenses, judgments, fines, settlements or damages suffered or incurred
by the Partnership or such other Partners arising out of or resulting from such
retirement or withdrawal. No permitted transfer of all or any portion of a
Partner's Interest in the Partnership in accordance with Article X shall
constitute a withdrawal in violation of this Section 11.1. Further, the
withdrawal of a Holder in connection with the redemption of its entire Interest
in the Partnership in accordance with the terms hereof or of an Action, shall
not constitute a violation of this Section 11.1.
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SECTION 11.2 DISSOLUTION OF THE PARTNERSHIP.
(a) The Partnership shall not be dissolved by the admission of additional
or successor Partners in accordance with the terms of this Agreement. The death,
withdrawal, bankruptcy or dissolution of a Limited Partner, or the occurrence of
any other event which terminates the Interest of a Limited Partner in the
Partnership, shall not, in and of itself, cause the Partnership to be dissolved
and its affairs wound up. To the fullest extent permitted by applicable law,
upon the occurrence of such event, the General Partner may, without any further
act, vote or approval of any Partner, admit any Person to the Partnership as an
additional or substitute limited partner in the Partnership, which admission
shall be effective as of the date of the occurrence of such event, and the
business of the Partnership shall be continued without dissolution.
(b) The Partnership shall be dissolved and its affairs shall be wound up
upon the occurrence of any of the following events:
(i) The expiration of the term of the Partnership, as provided in
Section 1.4 hereof;
(ii) Upon the bankruptcy of the General Partner;
(iii) Upon the assignment by the General Partner of its entire interest
in the Partnership when the assignee is not admitted to the
Partnership as a general partner of the Partnership in accordance
with Section 10.1, or the filing of a certificate of dissolution
or its equivalent, with respect to the General Partner, or the
revocation of the General Partner's charter and the expiration of
90 days after the date of notice to the General Partner of
revocation without a reinstatement of its charter, or any other
event occurs (other than the bankruptcy of the General Partner)
which causes the General Partner to cease to be a general partner
of the Partnership under the Act, unless the business of the
Partnership is continued in accordance with the Act (any
remaining general partner of the Partnership is hereby authorized
to and shall continue the business of the Partnership without
dissolution);
(iv) In accordance with any Action or this Agreement;
(v) the entry of a decree of judicial dissolution under Section
17-802 of the Act; or
(vi) the written consent of all Partners.
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(c) Upon dissolution of the Partnership, the Liquidator (as defined
herein) shall promptly notify the Partners of such dissolution.
SECTION 11.3 LIQUIDATION.
(a) In the event of the dissolution of the Partnership for any reason, the
General Partner (or, if the Partnership is dissolved pursuant to Section
11.2(b)(ii) or (iii), then a liquidating trustee appointed by 66 2/3% in
liquidation preference of the Preferred Securities (the General Partner or such
Person so appointed is hereinafter referred to as the "Liquidator")), shall
commence to wind up the affairs of the Partnership; provided, however, that
if the Partnership's assets are to be liquidated, a reasonable time shall be
allowed for the orderly liquidation of the assets and the satisfaction of
liabilities to creditors so as to enable the Partners to minimize the normal
losses attendant upon liquidation. The Partners shall continue to share all
income, losses and distributions during the period of liquidation in
accordance with Articles IV and V. Subject to the provisions of this Article
XI, the Liquidator shall have full right and unlimited discretion to
determine the time, manner and terms of any sale or sales of Partnership
property pursuant to such liquidation, giving due regard to the activity and
condition of the relevant market and general financial and economic
conditions.
(b) The Liquidator shall have all of the rights and powers with respect to
the assets and liabilities of the Partnership in connection with the winding
up and termination of the Partnership that the General Partner would have with
respect to the assets and liabilities of the Partnership during the term of the
Partnership, and the Liquidator is hereby expressly authorized and empowered to
execute any and all documents necessary or desirable to effectuate the
winding up and termination of the Partnership and the transfer of any assets.
(c) Notwithstanding the foregoing, a Liquidator which is not the General
Partner shall not, by virtue of acting in such capacity, be deemed a Partner in
this Partnership or have any of the economic interests in the Partnership of a
Partner; and such Liquidator may be compensated for its services to the
Partnership at normal, customary and competitive rates for its services to the
Partnership as reasonably determined by a Majority in liquidation preference of
the Preferred Securities.
(d) Promptly following the time at which all of the assets of the
Partnership shall have been disposed of and the assets shall have been
distributed as provided in Section 11.4, the Liquidator shall execute and cause
to be filed a certificate of cancellation of the Certificate.
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SECTION 11.4 DISTRIBUTION IN LIQUIDATION.
(a) Upon the winding up of the Partnership, the assets of the Partnership
shall be distributed in the following order of priority:
(i) to creditors of the Partnership, including Preferred Security
Holders who are creditors, to the extent otherwise permitted by
law, in satisfaction of the liabilities of the Partnership
(whether by payment or the making of reasonable provision for
payment thereof), other than liabilities for distributions
(including Dividends) to Partners;
(ii) to the Holders of each series of Preferred Securities in
accordance with the terms of this Agreement and the Action
establishing such series of Preferred Securities; and
(iii) to the Partners in proportion to the Partners' positive Capital
Account balances.
SECTION 11.5 RIGHTS OF LIMITED PARTNERS. Each Limited Partner shall look
solely to the assets of the Partnership for all distributions with respect to
the Partnership and such Partner's capital contribution (including return
thereof), and such Partner's share of profits or losses thereof, and shall have
no recourse therefor (upon dissolution or otherwise) against the General
Partner.
SECTION 11.6 TERMINATION. The Partnership shall terminate when all of the
assets of the Partnership shall have been disposed of and the assets shall have
been distributed as provided in Section 11.4, and the Liquidator shall have
executed and caused to be filed a certificate of cancellation of the
Certificate.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 AMENDMENTS. Except as otherwise provided in this Agreement
or by any applicable terms of any Action establishing a series of Preferred
Securities, this Agreement may be amended by, and only by, a written instrument
executed by the General Partner; provided, however, that (i) no amendment shall
be made, and any such purported amendment shall be void and ineffective, to the
extent the result thereof would be to cause the
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Partnership to be treated as anything other than a partnership for purposes of
United States income taxation and (ii) any amendment which would adversely
affect the powers, preferences or special rights of any series of Preferred
Securities may be effected only as permitted by the terms of such series of
Preferred Securities.
SECTION 12.2 AMENDMENT OF CERTIFICATE. In the event this Agreement shall
be amended pursuant to Section 12.1, the General Partner shall amend the
Certificate to reflect such change if it deems such amendment of the Certificate
to be necessary or appropriate.
SECTION 12.3 MEETINGS OF THE PARTNERS.
(a) Meetings of the Limited Partners who are Holders of any series or, in
the case of a class vote, of multiple series of Preferred Securities may be
called at any time by the General Partner (or as provided in any Action
establishing a series of Preferred Securities) to consider and act on any matter
on which Limited Partners are entitled to act under the terms of this Agreement
or the Act. The General Partner shall call a meeting of Holders of any series
or, in the case of a class vote, multiple series, if directed to do so by
Holders of not less than 10% in liquidation preference of the Preferred
Securities. Such direction shall be given by delivering to the General Partner
one or more calls in writing stating that the signing Limited Partners wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Limited Partner calling a meeting shall specify in
writing the LP Certificates held by the Limited Partners exercising the right to
call a meeting and only those specified Interests shall be counted for purposes
of determining whether the required percentage set forth in the second preceding
sentence of this paragraph has been met. Except to the extent otherwise provided
in any such Action, the following provisions shall apply to meetings of
Partners.
(b) Notice of any such meeting shall be given to all Limited Partners
having a right to vote thereat not less than 7 Business Days nor more than 60
days prior to the date of such meeting. Whenever a vote, consent or approval of
Limited Partners is permitted or required under this Agreement, such vote,
consent or approval may be given at a meeting of Limited Partners. Further, any
action that may be taken at a meeting of the Limited Partners may be taken
without a meeting if a consent in writing setting forth the action so taken is
signed by Limited Partners owning not less than the minimum Interests that would
be necessary to authorize or take such action at a meeting at which all Limited
Partners having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Limited Partners
entitled to vote who have not consented in writing. The General Partner may
specify that any
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written ballot submitted to the Limited Partners for the purpose of taking any
action without a meeting shall be returned to the Partnership within the time
specified by the General Partner.
(c) Each Limited Partner may authorize any Person to act for it by proxy
on all matters in which a Limited Partner is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Limited Partner executing it. Except as otherwise provided herein, in any
Action or pursuant to Section 12.3(e), all matters relating to the giving,
voting or validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Partnership were a Delaware corporation and the Limited
Partners were stockholders of a Delaware corporation.
(d) Each meeting of Partners shall be conducted by the General Partner or
by such other Person that the General Partner may designate.
(e) The General Partner, in its sole discretion, shall establish all other
provisions relating to meetings of Limited Partners, including notice of the
time, place or purpose of any meeting at which any matter is to be voted on by
any Limited Partners, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES. All notices provided for in this Agreement shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Partnership, in care of the General Partner at the
Partnership's mailing address set forth below:
UtiliCorp Capital, L.P.
c/o UtiliCorp United Inc.
911 Main
Kansas City, Missouri 64105
Attn: Treasurer
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<PAGE>
(b) if given to the General Partner, at its mailing address set forth
below:
UtiliCorp United Inc.
911 Main
Kansas City, Missouri 64105
Attn: Treasurer
(c) if given to any other Partner at the address set forth on the books
and records of the Partnership. All such notices shall be deemed to have been
given when received.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties. It supersedes any prior agreement or understandings
among them, and it may not be modified or amended in any manner other than as
set forth herein.
SECTION 13.3 GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the law of the
State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
SECTION 13.4 EFFECT. Except as herein otherwise specifically provided,
this Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, successors and assigns.
SECTION 13.5 PRONOUNS AND NUMBER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in any of the masculine,
feminine or neuter shall include the masculine, feminine and neuter.
SECTION 13.6 PARTIAL ENFORCEABILITY. If any provision of this Agreement,
or the application of such provision to any Person or circumstance, shall be
held invalid, the remainder of this Agreement, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 13.7 COUNTERPARTS. This Agreement may contain more than one
counterpart of the signature page and this Agreement may be executed by the
affixing of the signature of each of the Partners to one of such counterpart
signature pages. All of such counterpart signatures pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
SECTION 13.8 WAIVER OF PARTITION. Each Partner hereby irrevocably waives
any and all rights (if any) that such Partner
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may have to maintain any action for partition of any of the Partnership's
property.
SECTION 13.9 REMEDIES. The failure of any party to seek redress for
violation of, or to insist upon the strict performance of, any provision of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation. The
rights and remedies provided by this Agreement are cumulative and the use of any
one right or remedy by any party shall not preclude or waive its right to use
any or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or otherwise.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above stated.
General Partner:
UtiliCorp United Inc.,
a Delaware Corporation
By:
----------------------------
Name:
Title:
Initial Limited Partner:
UCU Finance Corp.,
a Delaware Corporation
By:
----------------------------
Name:
Title:
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<PAGE>
Annex A
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
- ---------------------------------------------------
R-1
CUSIP NO.
Certificate Evidencing Preferred Securities
of
UtiliCorp Capital L.P.
_________________ Monthly Income Preferred Securities, Series A
(liquidation preference $25 per Preferred Security)
UtiliCorp Capital L.P., a limited partnership formed under the laws of the
State of Delaware (the "Partnership"), hereby certifies that __________ (the
"Holder") is the registered owner of _______ (__________) preferred securities
of the Partnership representing limited partner interests in the Partnership of
a series designated the ________________ Monthly Income Preferred Securities,
Series __ (liquidation preference $25 per Preferred Security) (the "Series ___
Preferred Securities"). The Series ____ Preferred Securities are fully paid and
nonassessable limited partner interests in the Partnership, as to which the
limited partners in the Partnership who hold the Series ___ Preferred Securities
(the "Preferred Security Holders"), in their capacities as limited partners in
the Partnership, will, assuming such Preferred Security Holders do not
participate in the control of the business of the Partnership, have no liability
in excess of their obligations to make payments provided for in the Limited
Partnership Agreement (as defined below) and their share of the Partnership's
assets and undistributed profits (subject to the obligation of a Preferred
Security Holder to repay any funds wrongfully distributed to it) and are
transferable on the books and records of the Partnership, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The powers, preferences and special rights and
limitations of the Series Preferred Securities are set forth in, and this
certificate and the Series ___ Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Agreement of Limited Partnership of the Partnership dated
as of _______________, 1995, as the same may be amended from time to time (the
"Limited Partnership Agreement") including the Action of UtiliCorp United Inc.
("UtiliCorp"), a Delaware corporation and the general partner of the Partnership
dated as of ____________, 1995 (the "Action"), taken pursuant thereto,
authorizing the issuance of the Series ___
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Preferred Securities and determining the powers, preferences, and other special
rights and limitations, regarding Dividends, voting, return of capital and
otherwise, and other matters relating to the Series ___ Preferred Securities.
Capitalized terms used herein but not defined shall have the meaning given them
in the Limited Partnership Agreement. The Holder is entitled to the benefits of
the Guarantee Agreement of UtiliCorp, dated as of _______________, 1995 (the
"Guarantee"), to the extent provided therein. The Partnership will furnish a
copy of the Limited Partnership Agreement, the Action and the Guarantee to the
Holder without charge upon written request to the Partnership at its principal
place of business or registered office.
The Holder, by accepting this certificate, is deemed to have agreed that
(i) the _____% Junior Subordinated Deferrable Interest Debentures, Series ___,
Due ___, acquired by the Partnership with the proceeds from the issuance of the
Series ____ Preferred Security are subordinated and junior in right of payment
to all Senior Indebtedness of UtiliCorp as and to the extent provided in the
Indenture, and (ii) the Guarantee ranks subordinate and junior in right of
payment to all liabilities of UtiliCorp, PARI PASSU with the most senior
preferred or preference stock now or hereafter issued by UtiliCorp and with any
guarantee now or hereafter issued by UtiliCorp in respect of any preferred or
preference stock of any Affiliate of UtiliCorp, and senior to Utilicorp's common
stock, as and to the extent provided in the Guarantee. Upon receipt of this
certificate, the Holder is admitted to the Partnership as a Limited Partner, is
bound by the Limited Partnership Agreement and is entitled to the benefits
thereunder.
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<PAGE>
IN WITNESS WHEREOF, the Partnership has executed this certificate this day
of _______________, 1995.
UtiliCorp Capital L.P.
By: UtiliCorp United Inc.,
its General Partner
By:
------------------------
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ACTION BY THE GENERAL PARTNER OF UTILICORP CAPITAL L.P.
CREATING THE ____% CUMULATIVE MONTHLY INCOME
PREFERRED SECURITIES, SERIES A
Pursuant to Section 6.1 of the Amended and Restated Agreement of
Limited Partnership of UtiliCorp Capital L.P. dated as of ____________, 1995 (as
amended from time to time, the "Partnership Agreement"), UtiliCorp United Inc.,
as general partner (the "General Partner") of UtiliCorp Capital L.P. (the
"Partnership"), desiring to state the number, voting powers, designation,
preferences, participation, optional or other special rights and the
qualifications, limitations or restrictions of, and other matters relating to a
new series of Preferred Securities, hereby authorizes and establishes such new
series of Preferred Securities according to the following terms and conditions:
(a) DEFINITIONS. All terms defined in the Partnership Agreement and
not otherwise defined herein shall for the purposes hereof have the meanings set
forth therein. The following terms have the respective meanings specified below
with respect to this Action:
"INVESTMENT COMPANY EVENT" means the occurrence of a change in law or
regulation or a written change, interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 40 Act Law") to the effect that the
Partnership is or will be considered an "investment company" which is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 ACT"), which Change in 40 Act Law becomes effective on
or after _____________, 1995; PROVIDED, HOWEVER, that no Investment Company
Event shall be deemed to have occurred if the General Partner obtains a
written opinion of nationally recognized independent counsel to the
Partnership experienced in practice under the 1940 Act to the effect that
the General Partner has successfully issued an additional or supplemental
irrevocable and unconditional guarantee (i) of accrued and unpaid dividends
(whether or not determined to be paid out of monies legally available
therefor) on the Series A Preferred Securities and (ii) of the full amount
of the Liquidation Distribution on the Series A Preferred Securities upon a
liquidation of the Partnership (regardless of the amount of assets of the
Partnership otherwise available for distribution in such liquidation) to
avoid such Change in 40 Act Law so that in the opinion of such counsel,
notwithstanding such Change in 40 Act Law, the Partnership is not required
to be registered as an "investment company" within the meaning of the 1940
Act. In case of any uncertainty regarding an Investment Company Event, the
good faith determination of the General Partner (based on the advice of
counsel) shall be conclusive.
"REDEMPTION PRICE" has the meaning specified in paragraph (d)(ii)
hereof.
<PAGE>
"SERIES A JUNIOR SUBORDINATED DEBENTURES" means the ___% Junior
Subordinated Deferrable Interest Debentures, Series A, Due [2025] issued by
UtiliCorp United Inc.
"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SUCCESSOR SECURITIES" has the meaning specified in paragraph (h)
hereof.
"TAX EVENT" means that the General Partner shall have obtained an
opinion of nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to or change in
an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any
judicial decision or regulatory determination on or after such date), or
(c) any interpretation or pronouncement that provides for a position with
respect to such laws or regulations that differs from the generally
accepted position on ______________, 1995, which amendment or change is
effective or such interpretation or pronouncement is announced on or after
________________, 1995, there is more than an insubstantial risk that (i)
the Partnership is subject to federal income tax with respect to interest
received on the Series A Junior Subordinated Debentures, (ii) interest
payable by UtiliCorp United Inc. to the Partnership on the Series A Junior
Subordinated Debentures will not be deductible by UtiliCorp United Inc. for
federal income tax purposes or (iii) the Partnership is subject to more
than a de minimis amount of other taxes, duties or other governmental
charges.
(b) NUMBER AND DESIGNATION. A series consisting initially of
____________________ of Preferred Securities, liquidation preference $25 per
Preferred Security, is hereby designated as "____% Cumulative Monthly Income
Preferred Securities, Series A" (hereinafter called the "SERIES A PREFERRED
SECURITIES").
(c) DIVIDENDS. (i) The Limited Partners who hold the Series A
Preferred Securities shall be entitled to receive, when, as and if available and
determined to be so distributed by the General Partner (the General Partner's
discretion to be subject to paragraph (c)(ii) below), cumulative Dividends at a
rate per annum of ___% of the stated liquidation preference of $25 per Series A
Preferred Security, calculated on the basis of a 360-day year of twelve 30-day
months, and payable in United States dollars monthly in arrears on the last day
of each calendar month of each year, commencing ___________, 1995. Such
Dividends will accrue and be cumulative whether or not they have been determined
to be made and whether or not there are funds of the Partnership legally
available for the payment of Dividends. Dividends on the Series A Preferred
Securities shall be cumulative from the date of original issue, and the
cumulative portion from such date to _______________, 1995 shall be payable on
_____________, 1995. In the event that any date on which Dividends are payable
on the Series A Preferred Securities is not a Business Day, then payment of the
Dividend payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding
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<PAGE>
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
Dividends in arrears for more than one month will bear interest thereon at the
rate per annum of ____% thereof.
(ii) Dividends on the Series A Preferred Securities must be paid on
the date such Dividends are payable to the extent that the Partnership has, on
the date such Dividends are payable, (x) funds legally available for the payment
of such Dividends and (y) cash on hand sufficient to permit such payments.
Dividends will be payable to the Holders of Series A Preferred Securities as
they appear on the books and records of the Partnership on the relevant record
dates, which, as long as the Series A Preferred Securities remain in book-entry-
only form, will be one Business Day prior to the relevant payment dates. In the
event the Series A Preferred Securities shall not continue to remain in book-
entry-only form, the General Partner shall have the right to select relevant
record dates which shall be more than one Business Day prior to the relevant
payment dates.
(iii) The Partnership shall not:
(A) pay, or set aside for payment, any Dividends with respect to any
other Preferred Securities, unless the amount of any Dividends declared on
such other Preferred Securities is paid on such other such Preferred
Securities and the Series A Preferred Securities on a pro rata basis on the
date such Dividends are paid on such other Preferred Securities, so that
(x) the aggregate amount of Dividends paid on the Series A
Preferred Securities bears to the aggregate amount of Dividends
paid on such other Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid Dividends in
respect of the Series A Preferred Securities bears to the
aggregate of all accrued and unpaid Dividends in respect of such
other Preferred Securities; or
(B) redeem, purchase or otherwise acquire any other Preferred
Securities;
until, in each case, such time as all accrued and unpaid Dividends on the Series
A Preferred Securities shall have been paid in full for all Dividend periods
terminating on or prior to, in the case of clause (A), such payment and, in the
case of clause (B), the date of such redemption, purchase or acquisition.
(d) REDEMPTION. (i) The Series A Preferred Securities are
redeemable, at the option of the Partnership, in whole or in part from time to
time, on or after _____, 2000, upon not less than 30 nor more than 60 days'
notice, at the Redemption Price (as defined below). If a partial redemption
would result in a delisting of the Series A Preferred Securities, the
Partnership may only redeem the Series A Preferred Securities in whole.
(ii) Upon repayment of the Series A Junior Subordinated Debentures at
maturity or earlier (or any new Junior Subordinated Debentures replacing the
Series A Junior Subordinated Debentures as contemplated by the following
sentence), the proceeds from such repayment shall be applied to redeem the
Series A Preferred Securities, in
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whole, at the redemption price of $25 per Preferred Security plus accumulated
and unpaid Dividends (whether or not declared) to the date fixed for redemption
(the "REDEMPTION PRICE") upon not less than 30 nor more than 60 days' notice.
Notwithstanding the foregoing, the Series A Preferred Securities will not be
redeemed if (i) in lieu of repaying the Series A Junior Subordinated Debentures
when due, UtiliCorp United Inc. is permitted by the Partnership to exchange
such Series A Junior Subordinated Debentures for new Junior Subordinated
Debentures or (ii) UtiliCorp United Inc. repays such Series A Junior
Subordinated Debentures when due but is permitted by the Partnership to
reborrow the proceeds from such repayment which reborrowing will be evidenced
by new Junior Subordinated Debentures; PROVIDED, that the Partnership will
only permit UtiliCorp United Inc. to so exchange the Series A Junior
Subordinated Debentures for new Junior Subordinated Debentures or reborrow
the proceeds from the repayment thereof if the Partnership owns all of such
Series A Junior Subordinated Debentures and the following conditions are
satisfied (which satisfaction, in the case of clauses (f) through (j), shall
be determined in the judgment of the General Partner and the Partnership's
financial advisor, selected by the General Partner and who shall not be
affiliated with the General Partner and shall be among the 30 largest
investment banking firms, measured by total capital, in the United States at
the time): (a) the Partnership is not bankrupt, insolvent or in liquidation,
(b) UtiliCorp United Inc. is not in default in the payment of any interest or
principal under any of the Junior Subordinated Debentures, (c) UtiliCorp
United Inc. has made timely payments on all Series A Junior Subordinated
Debentures being exchanged or repaid for the immediately preceding 24 months
(and has not elected to extend any interest payment period for such Series A
Junior Subordinated Debentures during such 24 month period), (d) such new
loan will mature no later than the 49th anniversary of the date of the
initial issuance of the Series A Junior Subordinated Debentures, (e) the
Partnership is not in arrears on payments of dividends on any Preferred
Securities, (f) UtiliCorp United Inc. is expected to be able to make timely
payment of principal and interest on such new loan, (g) such new loan is
being made on terms, and under circumstances, that are consistent with those
which a lender would then require for a loan to an unrelated party, (h) such
new loan is being made at a rate of interest sufficient to provide payments
equal to or greater than the amount of dividend payments required on the
Series A Preferred Securities, (i) such new loan is being made for a term
that is consistent with market circumstances and UtiliCorp United Inc.'s
financial condition and (j) immediately prior to the making of such new loan,
the senior unsecured long-term debt of UtiliCorp United Inc. is (or if no
such debt is outstanding, would be) rated not less than BBB- (or the
equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Service, Inc. and the subordinated unsecured long-term debt
of UtiliCorp United Inc. (or, if more than one issue of such subordinated
debt is outstanding, the most junior of such issues) is (or if no such debt
is outstanding, would be) rated not less than BBB- (or the equivalent) by
Standard & Poor's Corporation and Baa3 by Moody's Investors Service, Inc. (or
if either of such rating organizations is not then rating UtiliCorp United
Inc.'s senior or subordinated unsecured long-term debt, as the case may be,
the equivalent of such ratings by any other "nationally recognized
statistical rating organization" as that term is defined by the Securities
and Exchange Commission for purposes of Rule 436(g) under the Securities Act
of 1933, as amended).
(iii) Except as provided in the next succeeding sentence, if a
Special Event shall occur and be continuing, the General Partner shall elect to
either (A) redeem the Series A Preferred Securities in whole (and not in part),
upon not less than 30 or more than 60 days' notice at the Redemption Price
within 90 days following the occurrence of such
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Special Event; provided, that, if at the time there is available to the General
Partner the opportunity to eliminate, within such 90 day period, the Special
Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Partnership or the General Partner, the General Partner will
pursue such measure in lieu of redemption, or (B) dissolve the Partnership and,
after satisfaction of liabilities of creditors as required by the Act, cause to
be distributed to Holders of Series A Preferred Securities in liquidation of the
Partnership, within 90 days following the occurrence of such Special Event,
Series A Junior Subordinated Debentures having a principal amount equal to the
aggregate liquidation preference of the outstanding Series A Preferred
Securities and with accrued interest in an amount equal to any unpaid Dividends
on the Series A Preferred Securities. In the case of a Tax Event, the General
Partner may also elect to cause the Series A Preferred Securities to remain
outstanding.
After the date fixed for any distribution of Series A Junior
Subordinated Debentures upon dissolution of the Partnership, (i) the Series A
Preferred Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record Holder of the Series A Preferred Securities, will receive
a registered global certificate or certificates representing the Series A Junior
Subordinated Debentures to be delivered upon such distribution and (iii) any
certificates representing Series A Preferred Securities not held by DTC or its
nominee will be deemed to represent Series A Junior Subordinated Debentures
having a principal amount equal to the aggregate of the stated liquidation
preference of, and accrued and unpaid Dividends on, such Series A Preferred
Securities until such certificates are presented to the General Partner or its
agent for transfer or reissuance.
(e) REDEMPTION PROCEDURES. (i) Notice of any redemption (a
"NOTICE OF REDEMPTION") of the Series A Preferred Securities will be given by
the Partnership by mail to each record Holder of Series A Preferred Securities
to be redeemed not fewer than 30 nor more than 60 days prior to the date fixed
for redemption thereof. For purposes of the calculation of the date of
redemption and the dates on which notices are given pursuant to this paragraph
(e)(i), a Notice of Redemption shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Series A Preferred Securities. Each Notice of Redemption shall be addressed to
the Holders of Series A Preferred Securities at the address of the Holder
appearing in the books and records of the Partnership. No defect in the Notice
of Redemption or in the mailing thereof or publication of its contents shall
affect the validity of the redemption proceedings.
(ii) In the event that fewer than all the outstanding Series A
Preferred Securities are to be redeemed, the Series A Preferred Securities to be
redeemed in the case of a redemption pursuant to paragraph (d)(i) will be
selected in accordance with paragraph (e)(iv) hereof. The Partnership may not
redeem fewer than all the outstanding Series A Preferred Securities unless all
accrued and unpaid Dividends have been paid on all Series A Preferred Securities
for all monthly Dividend periods terminating on or prior to the date of
redemption.
(iii) If the Partnership gives a Notice of Redemption in respect of
Series A Preferred Securities, then, by 12:00 noon, New York time, on the
redemption date in the case of Clauses (A) and (B) below or prior to the close
of business on the Business Day
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<PAGE>
immediately preceding the redemption date in the case of Clause (C) below, the
Partnership will irrevocably deposit with (A) DTC, if DTC is the Clearing Agency
on the date such Notice of Redemption is given, (B) such other Person which is
the Clearing Agency on the date such Notice of Redemption is given or (C) if
there is no Clearing Agency with respect to the Series A Preferred Securities on
the date such Notice of Redemption is given, the Paying Agent or Paying Agents
appointed by the General Partner pursuant to Section 10.7 of the Partnership
Agreement, funds sufficient to pay the applicable Redemption Price and will give
DTC, such other Clearing Agency or the Paying Agent or Paying Agents, as the
case may be, irrevocable instructions and authority to pay the Redemption Price
to the Holders of such Series A Preferred Securities. If Notice of Redemption
shall have been given and funds deposited as required, then upon the date of
such deposit, all rights of the Holders of such Series A Preferred Securities so
called for redemption will cease, except the rights of the Holders of such
securities to receive the Redemption Price, but without interest on such
Redemption Price. In the event that any date fixed for redemption of Series A
Preferred Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day. In the event that
payment of the Redemption Price in respect of Series A Preferred Securities is
improperly withheld or refused and not paid either by the Partnership or by
UtiliCorp United Inc. pursuant to the Guarantee, Dividends on such Series A
Preferred Securities will continue to accrue at the then applicable rate, from
the original redemption date to the date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(iv) Redemption notices shall be sent to (A) Cede & Co. or any
successor nominee of DTC, in either case so long as DTC is the Clearing Agency,
(B) the nominee of any Clearing Agency other than DTC or (C) any Paying Agent or
Paying Agents appointed by the General Partner pursuant to Section 10.7 of the
Partnership Agreement. If less than all of the Series A Preferred Securities
are being redeemed, interests to be redeemed shall be determined as follows: (x)
in accordance with DTC's practice, so long as DTC is the Clearing Agency, (y) in
accordance with the practice of any other Clearing Agency or (z) if, at the time
such redemption notice is sent, there is no Clearing Agency, the Paying Agent or
Paying Agents shall select, by lot or in such other manner as the Paying Agent
or Paying Agents shall deem appropriate and fair, in their discretion, the
Preferred Securities to be redeemed.
(f) LIQUIDATION DISTRIBUTION. In the event of any voluntary or
involuntary dissolution, winding up or termination of the Partnership, Preferred
Security Holders who hold the Series A Preferred Securities at the time will be
entitled to receive out of the assets of the Partnership available for
distribution to Partners after satisfaction of liabilities of creditors as
required by the Act, before any distribution of assets is made to the General
Partner, but together with the Holders of every other series of Preferred
Securities outstanding, if any, an amount equal to, in the case of Holders of
Series A Preferred Securities, the aggregate of the stated liquidation
preference of $25 per Preferred Security and accrued and unpaid Dividends
thereon (whether or not declared) to the date of payment, unless in connection
with such dissolution, winding up or termination, the Partnership Agreement
provides otherwise or Series A Junior Subordinated Debentures in an aggregate
principal amount equal to the aggregate of
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<PAGE>
the stated liquidation preference of $25 per Preferred Security of all Series A
Preferred Securities then outstanding have been distributed on a pro rata basis
to the Holders of the Series A Preferred Securities.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Partnership has insufficient assets available to
pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on any other series of Preferred Securities, then the
amounts payable directly by the Partnership on the Series A Preferred Securities
and on such other series of Preferred Securities shall be paid on a pro rata
basis, so that
(i) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on such other series of Preferred Securities the same ratio
as
(ii) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on such other series of Preferred
Securities.
(g) VOTING RIGHTS. If (i) the Partnership fails to pay dividends in
full on the Series A Preferred Securities for 18 consecutive monthly Dividend
periods, (ii) an Event of Default (as defined in the Indenture) occurs and is
continuing on the Series A Junior Subordinated Debentures or (iii) UtiliCorp
United Inc. is in default on any of its payment or other obligations under the
Guarantee, then the Holders of the Series A Preferred Securities, together with
the Holders of any other series of Preferred Securities having the right to vote
for the appointment of a Special Representative of the Partnership and the
Limited Partners in such event, acting as a single class, will be entitled by
the vote of a Majority in liquidation preference of the Preferred Securities of
such Holders to appoint and authorize a Special Representative to enforce the
Partnership's creditor rights under the Junior Subordinated Debentures, enforce
the rights of the Holders of Series A Preferred Securities under the Guarantee
and enforce the rights of the Preferred Security Holders to receive Dividends on
Preferred Securities. UtiliCorp United Inc. agrees to execute and deliver such
documents as may be necessary, appropriate or convenient for the Special
Representative to enforce such rights and obligations.
In furtherance of the foregoing, and without limiting the powers of
any Special Representative so appointed and for the avoidance of any doubt
concerning the powers of the Special Representative, any Special Representative,
in its own name, in the name of the Partnership, in the name of the Limited
Partners or otherwise may institute or cause to be instituted a proceeding,
including, without limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the Partnership's rights
directly against UtiliCorp United Inc., or any other obligor in connection with
such obligations to the same extent as and on behalf of the Partnership, and may
prosecute such proceeding to judgment or final decree, and enforce the same
against UtiliCorp United Inc. or any other obligor in connection with such
obligations and collect, out of the property, wherever situated, of UtiliCorp
United Inc. or any such other obligor upon such obligations, the monies adjudged
or decreed to be payable in the manner provided by law. The Special
Representative shall not, by virtue of acting in such capacity, be admitted as a
general partner in the Partnership or otherwise be deemed to be a general
partner in the
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<PAGE>
Partnership and shall have no liability for the debts, obligations or
liabilities of the Partnership.
For purposes of determining whether the Partnership has failed to pay
Dividends in full for 18 consecutive monthly Dividend periods, Dividends shall
be deemed to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative Dividends have been or contemporaneously are declared and
paid with respect to all monthly Dividend periods terminating on or prior to the
date of payment of such full cumulative Dividends. Not later than 30 days after
such right to appoint a Special Representative arises, the General Partner will
convene a meeting for the purpose of appointing a Special Representative. If
the General Partner fails to convene such meeting within such 30-day period, the
Holders of 10% in liquidation preference of the outstanding Preferred Securities
will be entitled to convene such meeting. The provisions of Section 12.3 of the
Partnership Agreement relating to the convening and conduct of meetings of the
Partners will apply with respect to any such meeting. Any Special
Representative so appointed shall cease to be a representative of the
Partnership and the Limited Partners if the Partnership (or UtiliCorp United
Inc. pursuant to the Guarantee) shall have paid in full all accumulated and
unpaid Dividends on the Preferred Securities or such default or breach, as the
case may be, shall have been cured, and Utilicorp United, Inc. as the general
partner of the Partnership is hereby authorized to and shall continue the
business of the Partnership without dissolution. Notwithstanding the
appointment of any such Special Representative, UtiliCorp United Inc. retains
all rights under the Indenture, including the right to extend the interest
payment period and shall continue to be a general partner in the Partnership.
If any proposed amendment of this Action or the Partnership Agreement
provides for, or the General Partner otherwise proposes to effect (pursuant to
an Action or otherwise), (x) any action which would adversely affect the powers,
preferences or special rights of the Series A Preferred Securities, whether by
way of amendment of this Action or the Partnership Agreement or otherwise
(including, without limitation, the authorization or issuance of any interests
ranking, as to participation in the profits and Dividends or in the assets of
the Partnership, senior or junior to the Series A Preferred Securities), or (y)
the dissolution, winding up or termination of the Partnership, other than (A) a
dissolution, winding up or termination in connection with which the Partnership
distributes the Series A Junior Subordinated Debentures to the Holders of Series
A Preferred Securities upon the occurrence of a Special Event or (B) as
described in Section 6.2 of the Partnership Agreement, then the Holders of
Series A Preferred Securities will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other Holders of Preferred Securities similarly affected, and
such amendment or proposal shall not be effective except with the approval of
Holders of 66-2/3% in liquidation preference of such outstanding Preferred
Securities having a right to vote on the matter; PROVIDED, HOWEVER, that no such
approval shall be required if the dissolution, winding up or termination of the
Partnership is proposed or initiated pursuant to Section 11.2 of the Partnership
Agreement or upon the initiation of proceedings, or after proceedings have been
initiated, for the dissolution, winding up or termination of UtiliCorp United
Inc..
The rights attached to the Series A Preferred Securities will be
deemed not to be adversely affected by the creation or issue of, and no vote
will be required for the
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<PAGE>
creation of, any further Preferred Securities ranking PARI PASSU with, the
Series A Preferred Securities with regard to participation in the profits and
Dividends or in the assets of the Partnership. Holders of Series A Preferred
Securities have no preemptive rights.
Any required approval of Holders of Series A Preferred Securities may
be given at a separate meeting of such Holders convened for such purpose, at a
meeting of all of the Partners or pursuant to written consent. The Partnership
will cause a notice of any meeting at which Limited Partners holding Series A
Preferred Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
Series A Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any matter on which such Holders are entitled
to vote or upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the Holders of Series A
Preferred Securities will be required for the Partnership to redeem and cancel
Series A Preferred Securities in accordance with the Partnership Agreement.
Notwithstanding that Holders of Series A Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Series A Preferred Securities and any other series of Preferred
Securities that are entitled to vote or consent with such Series A Preferred
Securities as a single class at such time that are owned by UtiliCorp United
Inc. or any entity owned more than 50% by UtiliCorp United Inc., either directly
or indirectly, shall not be entitled to vote or consent and shall, for the
purposes of such vote or consent, be treated as if they were not outstanding.
Holders of the Series A Preferred Securities will have no rights to remove or
replace the General Partner.
This written Action shall constitute an Action for purposes of the
Partnership Agreement and shall be deemed for all purposes to be a part of the
Partnership Agreement.
IN WITNESS WHEREOF, the General Partner has executed this Action as of
_________, 1995.
UtiliCorp United Inc.
By:
-----------------------------
Name:
Title:
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<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of June _____, 1995,
executed and delivered by UtiliCorp United Inc., a Delaware corporation (the
"Guarantor"), for the benefit of the holders from time to time of the Preferred
Securities (as defined in the Partnership Agreement (as defined below)) of
UtiliCorp Capital L.P., a Delaware limited partnership (the "Issuer").
WHEREAS, pursuant to the Amended and Restated Agreement of Limited
Partnership, dated as of the date hereof, of the Issuer (the "Partnership
Agreement"), the Issuer may issue one or more series of Preferred Securities;
WHEREAS, pursuant to the Partnership Agreement, the proceeds received by
the Issuer from the issuance and sale of any such Preferred Securities will be
invested by the Issuer in Junior Subordinated Debentures (as defined in the
Partnership Agreement); and
WHEREAS, the Guarantor, as incentive for the Holders (as defined herein) to
purchase Preferred Securities, desires hereby irrevocably and unconditionally to
agree to the extent set forth herein to pay to the Holders the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE I.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Partnership Agreement.
"Guarantee Payments" shall mean the following payments, without
duplication, with respect to any series of Preferred Securities, to the extent
not paid by the Issuer: (i) any accrued and unpaid Dividends which are required
to be paid on such series of Preferred Securities, to the extent the Issuer
shall have funds legally available therefor, (ii) the redemption price,
including all accrued and unpaid Dividends (the "Redemption Price"), payable out
of funds legally available therefor with respect to any Preferred Securities
called for redemption by the Issuer and (iii) upon a liquidation of the Issuer,
the lesser of (a) the aggregate of the liquidation preference and all accrued
and unpaid Dividends on the Preferred Securities of such series to the date of
payment (the "Liquidation Distribution") and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer.
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any series of Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice,
<PAGE>
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
entity owned more than 50% by the Guarantor, either directly or indirectly.
ARTICLE II.
SECTION 2.01. The Guarantor irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments, as and when due (except to the
extent paid by the Issuer), regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 2.02. The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 2.03. The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to any series of
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Dividends, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of any
series of Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, any series of Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of
any series of Preferred Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, any series of
Preferred Securities;
2
<PAGE>
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 2.03 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any
and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 2.04. The Guarantor expressly acknowledges that (i) this Guarantee
Agreement will be deposited with the General Partner to be held for the benefit
of the Holders; (ii) in the event of the appointment of a Special Representative
to, among other things, enforce this Guarantee Agreement, the Special
Representative may take possession of this Guarantee Agreement for such purpose;
(iii) if no Special Representative has been appointed, the General Partner has
the right to enforce this Guarantee Agreement on behalf of the Holders; (iv) the
Holders of not less than 10% in liquidation preference of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available in respect of this Guarantee Agreement
including the giving of directions to the General Partner or the Special
Representative as the case may be; and (v) if the General Partner or Special
Representative fails to enforce this Guarantee Agreement as above provided, any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Issuer or any other person or entity.
SECTION 2.05. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by the Issuer
and by complete performance of all obligations under this Guarantee Agreement.
SECTION 2.06. The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Guarantor pursuant to Section 2.01; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of a payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 2.07. The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and sole debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (f), inclusive, of Section 2.03 hereof.
3
<PAGE>
ARTICLE III.
SECTION 3.01. So long as any Preferred Securities remain outstanding, the
Guarantor will not declare or pay any dividend on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital stock or make
any guarantee payments with respect to the foregoing if at such time the
Guarantor shall be in default with respect to its payment or other obligations
hereunder or there shall have occurred any event that would constitute an Event
of Default under the Indenture.
SECTION 3.02. This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all liabilities of the Guarantor, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any affiliate of the Guarantor and (iii)
senior to the Guarantor's common stock.
ARTICLE IV.
This Guarantee Agreement shall terminate and be of no further force and
effect, as to the Preferred Securities of any series, upon full payment of the
Redemption Price of all of Preferred Securities of such series, and will
terminate completely upon full payment of the amounts payable upon liquidation
of the Issuer. This Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under any series of Preferred Securities or this Guarantee
Agreement.
ARTICLE V.
SECTION 5.01. All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 5.02. Except with respect to any changes which do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than 66-2/3% in liquidation preference of all the
outstanding Preferred Securities.
SECTION 5.03. Any notice, request or other communication required or
permitted to be given hereunder to the Guarantor shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), addressed to the Guarantor, as follows (and if so given,
shall be deemed given when mailed):
UtiliCorp United Inc.
911 Main Street, Suite 3000
Kansas City, Missouri 64105
4
<PAGE>
Any notice, request or other communication required or permitted to be
given hereunder to the Holders shall be given by the Guarantor in the same
manner as notices sent by the Issuer to the Holders.
SECTION 5.04. The masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 5.05. This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Preferred Securities.
SECTION 5.06. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
UtiliCorp United Inc.
By
----------------------------------
Name:
Title:
5
<PAGE>
Exhibit 5(a)
[Letterhead - BLACKWELL SANDERS]
May 11, 1995
UtiliCorp United Inc.
911 Main, Suite 3000
P.O. Box 13287
Kansas City, MO 64199-3287
Gentlemen:
We refer to the Registration Statement of UtiliCorp United Inc. (the
"Company") on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of $100,000,000 aggregate amount of (i) preferred
securities (the "Preferred Securities") of UtiliCorp Capital L.P. ("Capital"),
(ii) junior subordinated debentures of the Company (the "Debt Securities"), and
(iii) a guarantee of the Company with respect to the Preferred Securities (the
"Guarantee"). We are familiar with the proceedings to date, and have examined
the Company's Certificate of Incorporation, as amended, and such corporate
records and other documents as we have deemed necessary to enable us to express
the opinions with respect to the Debt Securities and the Guarantee set forth
below.
We are of the opinion that,
1. When (i) the Registration Statement shall have become effective under
the Act and (ii) the Indenture (the "Indenture"), between the Company and UMB
Bank, N.A., as Trustee (the "Trustee"), substantially in the form of Exhibit
4(a) and any supplements and amendments thereto, shall have been qualified under
the Trust Indenture Act of 1939, as amended, and duly executed and delivered by
the Company and the Trustee, the Debt Securities, upon their issuance and sale
in the manner contemplated in the Registration Statement and the Indenture, will
be legally and validly issued, and will be binding obligations of the Company,
except to the extent that enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles relating to
or limiting creditors' rights generally.
<PAGE>
UtiliCorp United Inc.
May 11, 1995
Page 2
2. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Guarantee, substantially in the form of Exhibit 4(g) to the
Registration Statement, has been duly executed and delivered by the Company and
(iii) Preferred Securities have been duly issued and sold and the purchase price
therefore has been received by Capital, the Guarantee will constitute a legal
and valid binding obligation of the Company, except to the extent that
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or limiting creditors'
rights generally.
We hereby consent to the reference to us under the heading "Legal Opinions"
in the Prospectus constituting a part of the Registration Statement and to the
filing of this Opinion as Exhibit 5(a) to the Registration Statement.
Very truly yours,
/s/ Blackwell Sanders Matheny Weary & Lombardi L.C.
<PAGE>
Exhibit 5(b)
[Letterhead of Richards, Layton & Finger]
May 11, 1995
UtiliCorp United Inc.
911 Main, Suite 3000
Kansas City, Missouri 64105
UtiliCorp Capital L.P.
c/o UtiliCorp United Inc.
911 Main, Suite 3000
Kansas City, Missouri 64105
Re: UTILICORP CAPITAL L.P.
Ladies and Gentlemen:
We have acted as special Delaware counsel for UtiliCorp United Inc., a
Delaware corporation ("UtiliCorp"), and UtiliCorp Capital L.P., a Delaware
limited partnership (the "Partnership"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of executed or conformed
counterparts, or copies otherwise proved to our satisfaction, of the following:
(a) The Certificate of Limited Partnership of the Partnership, dated as of
May 1, 1995 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on May 3, 1995;
<PAGE>
UtiliCorp United Inc.
UtiliCorp Capital L.P.
May 11, 1995
Page 2
(b) The Agreement of Limited Partnership of the Partnership, dated as of
May 1, 1995;
(c) The registration statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus (the "Prospectus") and a preliminary
prospectus supplement (the "Prospectus Supplement"), relating to the Preferred
Securities, as proposed to be filed by UtiliCorp and the Partnership with the
Securities and Exchange Commission on or about May 11, 1995;
(d) A form of Amended and Restated Agreement of Limited Partnership of the
Partnership, attached as an exhibit to the Registration Statement (the
"Agreement");
(e) A form of Action of UtiliCorp, as general partner of the Partnership,
relating to the Preferred Securities, attached as an exhibit to the Registration
Statement (the "Action"); and
(f) A Certificate of Good Standing for the Partnership, dated May 10,
1995, obtained from the Secretary of State.
The Agreement as amended and supplemented by the Action is hereinafter
referred to as the "Partnership Agreement." Initially capitalized terms used
herein and not otherwise defined are used as defined in the Partnership
Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (f) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (f) above) that is referred to in or incorporated by reference into
the Partnership Agreement or the Registration Statement. We have assumed that
there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
UtiliCorp United Inc.
UtiliCorp Capital L.P.
May 11, 1995
Page 3
For purposes of this opinion, we have assumed (i) that the Partnership
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the admission
of partners to, and the creation, operation and termination of, the Partnership,
and that the Partnership Agreement and the Certificate are in full force and
effect and have not been amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation, as the case may be,
and valid existence in good standing of each party to the documents examined by
us under the laws of the jurisdiction governing its organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, including the
Agreement and the Action, (vi) the receipt by each Person to be admitted to the
Partnership as a limited partner of the Partnership in connection with its
purchase of Preferred Securities (each, a "Preferred Security Holder" and
collectively, the "Preferred Security Holders") of an LP Certificate and the
payment for the Preferred Securities acquired by it, in accordance with the
Partnership Agreement, (vii) that the books and records of the Partnership set
forth all information required by the Partnership Agreement and the Delaware
Revised Uniform Limited Partnership Act (6 DEL. C. Section 17-101, ET SEQ.) (the
"Act"), including all information with respect to all Persons to be admitted as
Partners and their contributions to the Partnership, and (viii) that the
Preferred Securities are issued and sold to the Preferred Security Holders in
accordance with the Registration Statement and the Partnership Agreement. We
have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Partnership has been duly formed and is validly existing in good
standing as a limited partnership under the laws of the State of Delaware.
<PAGE>
UtiliCorp United Inc.
UtiliCorp Capital L.P.
May 11, 1995
Page 4
2. Assuming that the Preferred Security Holders, as limited partners of
the Partnership, do not participate in the control of the business of the
Partnership, upon issuance and payment as contemplated by the Partnership
Agreement, the Preferred Securities will represent valid and, subject to the
qualifications set forth herein, will be fully paid and nonassessable limited
partner interests in the Partnership, as to which the Preferred Security
Holders, as limited partners of the Partnership, will have no liability in
excess of their obligations to make payments provided for in the Partnership
Agreement and their share of the Partnership's assets and undistributed profits
(subject to the obligation of a Preferred Security Holder to repay any funds
wrongfully distributed to it).
3. There are no provisions in the Partnership Agreement the inclusion of
which, subject to the terms and conditions therein, or, assuming that the
Preferred Security Holders, as limited partners of the Partnership, take no
action other than actions permitted by the Partnership Agreement, the exercise
of which, in accordance with the terms and conditions therein, would cause the
Preferred Security Holders, as limited partners of the Partnership, to be deemed
to be participating in the control of the business of the Partnership.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We hereby consent to
the use of our name under the heading "Legal Matters" in the Prospectus
Supplement and under the heading "Legal Opinions" in the Prospectus. We hereby
consent to the reliance by Blackwell Sanders Matheny Weary & Lombardi L.C. upon
this opinion as to matters of Delaware law for purposes of its opinion being
rendered in connection with the Registration Statement. In giving the foregoing
consents, we do not thereby admit that we come within the category of Persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
PMA/DAF/lds
<PAGE>
Exhibit 8
[Letterhead - BLACKWELL SANDERS]
May 11, 1995
UtiliCorp United Inc.
911 Main
Kansas City, MO 64105
Dear Sirs:
We have acted as your counsel in connection with the registration by
UtiliCorp Capital L.P. of cumulative monthly income preferred securities
("MIPS") and the registration by UtiliCorp United Inc. of Junior Subordinated
Debentures ("Junior Subordinated Debentures") and hereby confirm to you our
opinions as set forth in the second paragraph under the heading "Investment
Considerations - Special Event Redemption or Distributions", and under the
heading "United States Taxation", in the preliminary Prospectus Supplement for
the MIPS, dated May 11, 1995.
We hereby consent to the filing of these opinions with the Securities and
Exchange Commission ("Commission") as an exhibit to the Registration Statement
on Form S-3, as filed by UtiliCorp United Inc. and UtiliCorp Capital L.P. with
the Commission on the date hereof, and to the use of our name under the headings
"Legal Matters" and "United States Taxation" in the preliminary Prospectus
Supplement for the MIPS.
Very truly yours,
/s/ Blackwell Sanders Matheny Weary & Lombardi L.C.
<PAGE>
EXHIBIT 12
UTILICORP UNITED INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND TO
COMBINED FIXED CHARGES AND PREFERENCE STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
TWELVE MONTHS ENDED -----------------------------------------------------
MARCH 31, 1995 1994 1993 1992 1991 1990
--------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before provision for income
taxes............................ $ 135,923 $ 143,717 $ 115,889 $ 84,541 $ 115,200 $ 69,900
Add:
Interest on long-term debt...... 91,287 89,050 89,243 88,857 65,100 44,200
Interest on short-term debt and
other interest expense......... 18,090 14,157 12,607 12,729 18,939 20,189
Portion of rents representative
of the interest factor......... 15,228 15,329 15,008 14,600 6,548 4,120
---------- --------- --------- --------- --------- ---------
Income as adjusted................ $ 260,528 $ 262,253 $ 232,747 $ 200,727 $ 205,787 $ 138,409
---------- --------- --------- --------- --------- ---------
Fixed Charges
Interest on long-term debt...... $ 91,287 $ 89,050 $ 89,243 $ 88,857 $ 65,100 $ 44,200
Interest on short-term debt and
other interest expense......... 18,090 14,157 12,607 12,729 18,939 20,189
Portion of rents representative
of the interest factor......... 15,228 15,329 15,008 14,600 6,548 4,120
Pre-tax Preference Stock
Dividend Requirements.......... 3,114 4,849 11,262 11,070 12,188 11,714
---------- --------- --------- --------- --------- ---------
Fixed Charges (including Pretax
Preference Stock Dividend
Requirements).................... $ 127,719 $ 123,385 $ 128,120 $ 127,256 $ 102,775 $ 80,223
---------- --------- --------- --------- --------- ---------
Fixed Charges (excluding Pretax
Preference Stock Dividend
Requirements).................... $ 124,605 $ 118,536 $ 116,858 $ 116,186 $ 90,587 $ 68,509
---------- --------- --------- --------- --------- ---------
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERENCE
STOCK DIVIDEND REQUIREMENTS...... 2.04 2.13 1.82 1.58 2.00 1.73
---------- --------- --------- --------- --------- ---------
---------- --------- --------- --------- --------- ---------
RATIO OF EARNINGS TO FIXED
CHARGES.......................... 2.09 2.21 1.99 1.73 2.27 2.02
---------- --------- --------- --------- --------- ---------
---------- --------- --------- --------- --------- ---------
</TABLE>
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement (Form S-3), used to register $100
million of UtiliCorp Capital L. P. Preferred Securities, of our reports dated
January 31, 1995, incorporated by reference and included in UtiliCorp United
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994, and
to all references to our Firm included in this registration statement.
/s/ Arthur Anderson LLP
Kansas City, Missouri,
May 11, 1995
<PAGE>
POWER OF ATTORNEY
We, the undersigned Directors and Officers of UtiliCorp United Inc., do
hereby name, constitute and appoint Richard C. Green, Jr. or Dale J. Wolf, our
agent and attorney-in-fact, for each of us and in our respective behalves as
Directors and/or as Officers of UtiliCorp United Inc., to sign and execute a
Registration Statement on Form S-3, and any amendments thereto, relating to the
registration with the Securities and Exchange Commission Monthly Interest
Preference Securities and any and all other securities and transactions
related thereto.
Executed this 2nd day of May, 1995.
/s/ Richard C. Green, Jr. /s/ Avis G. Tucker
- ------------------------------ ------------------------------
RICHARD C. GREEN, JR. AVIS G. TUCKER
/s/ Irvine O. Hockaday, Jr. /s/ Robert E. Jackson, Jr.
- ------------------------------ ------------------------------
IRVINE O. HOCKADAY, JR. ROBERT E. JACKSON, JR.
/s/ John R. Baker /s/ L. Patton Kline
- ------------------------------ ------------------------------
JOHN R. BAKER L. PATTON KLINE
/s/ Herman Cain /s/ Stanley O. Ikenberry
- ------------------------------ ------------------------------
HERMAN CAIN STANLEY O. IKENBERRY
/s/ Robert K. Green /s/ Dale J. Wolf
- ------------------------------ ------------------------------
ROBERT K. GREEN DALE J. WOLF
/s/ James S. Brook
- ------------------------------
JAMES S. BROOK
<PAGE>
Exhibit 25
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------
UMB BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
44-0201230
(I.R.S. Employer
Identification No.)
928 Grand Avenue, Kansas City, Missouri.............................64106
(Address of principal executive offices) (Zip Code)
------------------
UtiliCorp United, Inc.
(Exact name of obligor as specified in its charter)
Delaware 44-0541877
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification No.)
911 Main Street
Kansas City, Missouri 64105
(Address of principal executive offices) (Zip Code)
Junior Subordinated Deferrable Interest Debentures, Series A, Due 2025
(Title of the indenture securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
Item 1. GENERAL INFORMATION
(a) Name and address of each examining or supervising authority
to which the Trustee is subject is as follows:
The Comptroller of the Currency
Mid-Western District
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64108
Federal Reserve Bank of Kansas City
Federal Reserve P.O. Station
Kansas City, Missouri 64198
Supervising Examiner
Federal Deposit Insurance Corporation
720 Olive Street, Suite 2909
St. Louis, Missouri 63101
(b) The Trustee is authorized to exercise corporate trust
powers.
Item 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
The Obligor is not affiliated with the Trustee.
Item 3. VOTING SECURITIES OF THE TRUSTEE.
The following information as to each class of voting securities
of the Trustee is furnished as of May 8, 1995:
Column A Column B
Title of Amount
Class Outstanding
----- -----------
Common 660,000
Item 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is not a trustee under another indenture under
which any other securities, or certificates of interest or
participation in other securities, of the Obligor are
outstanding. The Trustee does serve as an owner trustee under
trust agreements dated April 15, 1975,
May 1, 1977, and June 1, 1979, under which securities issued by
the Trustee, as an owner trustee, are outstanding and are
payable from rentals payable by the Obligor. The Trustee also
serves as a security trustee, under an indenture dated August
15, 1991, with respect to securities issued by the Wilmington
Trust Company, as an owner trustee, which are outstanding and
are payable from rentals payable by the Obligor.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
Neither the Trustee nor any of its directors or officers is a
director, officer, partner, employee, appointee, or represen-
tative of the Obligor.
<PAGE>
Item 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
No voting securities of the Trustee are owned beneficially by
the Obligor or its directors and executive officers as of May
8, 1995.
Item 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
No voting securities of the Trustee and not more than 1% of the
voting securities of the Trustee's parent holding company are
owned beneficially by an Underwriter for the Obligor or its
directors, partners or executive officers as of May 8, 1995.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
No securities of Obligor are owned beneficially or held as
collateral security for obligations in default by the Trustee
as of May 8, 1995.
Item 9. SECURITIES OF THE UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
No securities of an Underwriter for the Obligor are owned
beneficially or held as collateral security for Obligations in
default as of May 8, 1995.
Item 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee neither owns beneficially nor holds as collateral
security for obligations in default any voting securities of a
person who, to the knowledge of the Trustee, (1) owns 10
percent or more of the voting securities of the Obligor, or (2)
is an affiliate, other than a subsidiary of Obligor, as of May
8, 1995.
Item 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee neither owns beneficially nor holds as collateral
security for obligations in default any securities of a person
who, to the knowledge of the Trustee, owns 50 percent or more
of the voting shares of the Obligor as of May 8, 1995.
<PAGE>
Item 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Not Applicable
Item 13. DEFAULTS OF THE OBLIGOR.
Not Applicable
Item 14. AFFILIATIONS WITH THE UNDERWRITERS.
Not Applicable
Item 15. FOREIGN TRUSTEE.
Not Applicable
Item 16. LIST OF EXHIBITS.
Listed below are all exhibits filed as a part of this statement
of eligibility and qualification.
Exhibit No. Exhibit
1. Articles of Association of the Trustee, as now in effect.
2. Certificate of Authority from the Comptroller of the Currency
and evidence of subsequent changes in the corporate title of
the Association.
3. Certificate from the Comptroller of the Currency evidencing
authority to exercise corporate trust powers.
4. Bylaws, as amended, of the Trustee.
5. N/A
6. Consent of the Trustee required by Section 321 (b) of the Act.
7. Report of Condition of the Trustee as of March 31, 1995.
8. N/A
9. N/A
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
UMB, National Association, a national bank organized and existing under the laws
of the United States of America, has duly caused this Statement of Eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Kansas City, and State of Missouri, on the 8th day of May, 1995.
UMB BANK, NATIONAL ASSOCIATION
BY: /S/ FRANK C. BRAMWELL
--------------------------------------
Frank C. Bramwell, Vice President
<PAGE>
T-l Exhibit No. l
TO WHOM IT MAY CONCERN
The attached Articles of Association are the Articles of Association for
the UMB Bank, National Association and are current as of this date.
/S/ R. WILLIAM BLOEMKER
---------------------------
Assistant Secretary
May 8, 1995
[SEAL]
<PAGE>
UMB BANK, NATIONAL ASSOCIATION
RESTATED ARTICLES OF ASSOCIATION
FIRST: The title of this Association shall be "UMB Bank, National
Association" (amended as of October 1, 1994).
SECOND: The main office shall be in the City of Kansas City, County of
Jackson, State of Missouri. The general business of this Association, and its
operations of discount and deposit, shall be conducted at its main office.
THIRD: The Board of Directors of this Association shall consist of not
less than five nor more than twenty-five shareholders, the exact number of
Directors within such minimum and maximum limits to be fixed and determined from
time to time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof. Unless
otherwise provided by the laws of the United States, any vacancy in the Board of
Directors for any reason, including an increase in the number thereof, may be
filled by action of the Board of Directors.
FOURTH: The regular annual meeting of the shareholders for the election of
directors and the transaction of whatever other business which may be brought
before said meeting shall be held at the main
<PAGE>
office, or at such other place as the Board of Directors may designate, on the
day of each year specified therefor in the By-Laws of the Association, but if
no election be held on that day it may be held on any subsequent day according
to the provisions of law.
FIFTH: The amount of authorized capital stock of this Association shall be
Thirteen Million Two Hundred Fifty Thousand Dollars ($16,500,000), divided into
660,000 shares of common stock of the par value of Twenty-Five Dollars ($25)
each; but said capital stock may be increased or decreased from time to time in
accordance with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares thereof,
each shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at the
time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholders' meeting is specified in a resolution
adopted by the shareholders at the time the increase is authorized. The Board
of Directors shall have the power to prescribe a reasonable period of time
within which the pre-emptive rights to subscribe to the new shares of capital
stock must be exercised.
If the capital stock is increased by a stock dividend, each shareholder
shall be entitled to his proportion of the amount of such increase in accordance
with the number of shares of capital stock owned by him at the time the increase
is authorized by the shareholders, unless
<PAGE>
another time subsequent to the date of the shareholders' meeting is specified
in a resolution adopted by the shareholders at the time the increase is
authorized.
SIXTH: The Board of Directors shall appoint one of its members to be
President of this Association. The Board of Directors may appoint one of its
members to be Chairman of the Board, who shall perform such duties as the Board
of Directors may designate.
The Board of Directors shall have the power to appoint one or more Vice
Presidents and to appoint a Cashier and such other officers and employees as may
be required to transact the business of the Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase in the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all By-Laws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for the Board of
Directors to do and perform.
The Board of Directors, without the approval of the shareholders, but
subject to the approval of the Comptroller of the Currency, shall have the power
to change the location of the main office of the Association to any other place
within the limits of Kansas City, Missouri and to establish or change the
location of any branch or branches to any other
<PAGE>
location permitted under applicable law.
SEVENTH: The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
EIGHTH: The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than ten percentum (10%) of the
stock of this Association, may call a special meeting of the shareholders at any
time; provided, however, that unless otherwise provided by law, not less than
ten (10) days prior to the date fixed for any such meeting, a notice of the
time, place and purpose of the meeting shall be given by first class mail,
postage prepaid, to all shareholders of record at their respective addresses as
shown upon the books of the Association.
Subject to the provisions of the laws of the United States, these Articles
of Association may be amended at any meeting of the shareholders, for which
adequate notice has been given, by the affirmative vote of the owners of
two-thirds of the stock of this Association, voting in person or by proxy.
NINTH: Any person, his heirs, executors, or administrators, may be
indemnified or reimbursed by the Association for reasonable expenses actually
incurred in connection with any action, suit, or proceeding, civil or criminal,
to which he or they shall be made a party by reason of his being or having been
a director, officer, or employee of the Association or any firm, corporation, or
organization which he served in
<PAGE>
any capacity at the request of the Association; PROVIDED, HOWEVER, that no
person shall be so indemnified or reimbursed in relation to any matter in such
action, suit, or proceeding as to which he shall finally be adjudged to have
been guilty of or liable for gross negligence or willful misconduct or criminal
acts in the performance of his duties to the Association; and, PROVIDED FURTHER,
that no person shall be so indemnified or reimbursed in relation to any matter
in such action, suit, or proceeding which has been made the subject of a
compromise settlement except with the approval of a court of competent
jurisdiction, or the holders of record of a majority of the outstanding shares
of the Association, or the Board of Directors, acting by vote of directors not
parties to the same or substantially the same action, suit, or proceeding,
constituting a majority of the whole number of the directors. The foregoing
right of indemnification or reimbursement shall not be exclusive of other rights
to which such person, his heirs, executors, or administrators, may be entitled
as a matter of law.
<PAGE>
T-1 EXHIBIT NO. 2
No. 13936
TREASURY DEPARTMENT
OFFICE OF COMPTROLLER OF THE CURRENCY
Washington, D. C., January 10, 1934
WHEREAS, by satisfactory evidence presented to the undersigned, it has
been made to appear that "The City National Bank and Trust Company of Kansas
City" in the City of Kansas City in the County of Jackson and State of Missouri
has complied with all the provisions of the Statutes of the United States,
required to be complied with before an association shall be authorized to
commence the business of Banking:
NOW, THEREFORE, I, J. F. T. O'Connor, Comptroller of the Currency, do
hereby certify that "The City National Bank and Trust Company of Kansas City"
in the City of Kansas City in the County of Jackson and State of Missouri is
authorized to commence the business of Banking as provided in Section
Fifty-one hundred and sixty-nine of the Revised Statutes of the United
States. Conversion of The City Bank and Trust Company, Kansas City, Missouri.
In testimony whereof, witness my hand and seal of office
this 10th day of January, 1934
/s/ J. F. T. O'Connor
------------------------------------
Comptroller of the Currency.
<PAGE>
C E R T I F I C A T E
For and on behalf of UMB Bank, National Association, a national banking
association organized under the laws of the United States of America (formerly
named The City National Bank and Trust Company of Kansas City and the United
Missouri Bank of Kansas City, National Association and United Missouri Bank,
National Association), the undersigned, R. William Bloemker, Assistant Secretary
of said Association, hereby certifies that attached hereto are the following:
1) A true and correct copy of the certificate of the Comptroller
of the Currency, dated December 19, 1972, evidencing a change
in corporate title from The City National Bank and Trust
Company of Kansas City to United Missouri Bank of Kansas City,
National Association;
2) A true and correct copy of the letter of authorization from the
Comptroller of the Currency, dated April 9, 1991, authorizing
the Association to adopt the name United Missouri Bank,
National Association; and
3) Certified Resolution evidencing recordation of change of the
name of the Association to UMB Bank, National Association.
Certified under the corporate seal of said Association this 8th
day of May, 1995.
/s/ R. William Bloemker
---------------------------
Assistant Secretary
<PAGE>
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D. C.
Whereas, satisfactory notice has been transmitted to the Comptroller of
the Currency evidencing that all requisite legal and corporate action has
been taken by
The City National Bank and Trust Company of Kansas City
located in Kansas City, State of Missouri, in accordance with the statutes of
the United States, to authorize a change of the name of that association to
United Missouri Bank of Kansas City, National Association
Now, Therefore, it is hereby certified that such change of name of said
association is approved, effective December 31, 1972
In Testimony Whereof, witness my signature and seal of office this
nineteenth day of December 1972.
[SEAL] /s/ William B. Camp
---------------------------
COMPTROLLER OF THE CURRENCY
<PAGE>
[Logo]
- -------------------------------------------------------------------------------
COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
- -------------------------------------------------------------------------------
Midwestern District Office
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64108
April 9, 1991
Mr. Marshall D. Hendrickson
Senior Vice President
United Missouri Bancshares, Inc.
P.O. Box 419226
Kansas City, Missouri 64141-6226
Dear Mr. Hendrickson:
This letter is the official certification of the Office of the Comptroller of
the Currency (OCC) for the merger of United Missouri City Bank, Kansas City,
Missouri; United Missouri Bank South, Kansas City, Missouri and United Missouri
Bank of Hickman Mills, Kansas City, Missouri into United Missouri Bank of Kansas
City, National Association, Kansas City, Missouri under the charter of United
Missouri Bank of Kansas City, National Association and with the title "United
Missouri Bank, National Association", effective as of March 29, 1991.
This letter is also the official authorization of the Comptroller of the
Currency allowing United Missouri Bank, National Association, Charter No. 13936,
the receiving institution, to operate the presently existing branches and CBCT
branches of United Missouri Bank of Kansas City, National Association, and to
establish the following branches and CBCT branch:
2401 Grand Avenue, Kansas City, MO, Certificate No. 84049A
1800 Grand Avenue, Kansas City, MO, Certificate No. 84050A
6400 Independence Avenue, Kansas City, MO, Certificate No. 84051A
I-70 and Blue Ridge Cutoff, Kansas City, MO, Certificate No. 84052A
I-435 and Front Street, Kansas City, MO, Certificate No. 84053A
3500 South Outer Road, Blue Springs, MO, Certificate No. 84054A
301 North 7 Highway, Blue Springs, MO, Certificate No. 84055A
6515 Independence Avenue, Kansas City, MO, Certificate No. 84056A
9201 Ward Parkway, Kansas City, MO, Certificate No. 84057A
7901 Wornall Road, Kansas City, MO, Certificate No. 84058A
11702 Hickman Mills Drive, Kansas City, MO, Certificate No. 84059A
10321 Blue Ridge Extension, Kansas City, MO, Certificate No. 84060A
14664 Colorado Avenue, Kansas City, MO, Certificate No. 84061A
9051 Hillcrest, Kansas City, MO, Certificate No. 84062A
1833 E. North Avenue, Belton, MO, Certificate No. 79337C
<PAGE>
Mr. Marshall D. Hendrickson
Senior Vice President
United Missouri Bancshares, Inc.
Kansas City, Missouri 64141-6226
Page 2
We note that the popular names of these branches will be Crown Center, Town
Bank, Independence Avenue, Stadium, Front Street, Outer Road, 7 Highway,
Independence Avenue #2, Ward Parkway, Wornall Road, Hickman Mills, Blue Ridge
Extension, Colorado Avenue, Hypermart, and Belton Price Chopper ATM,
respectively.
This letter is also the official OCC certification of the approval of the
Comptroller of the Currency given to United Missouri Bank, National Association
to increase its common stock to $16,500,000 as of March 29, 1991.
The shareholders' meetings of the respective banks may be finally adjourned.
Sincerely,
/s/ Thomas C. McAllister
Thomas C. McAllister
Director for Analysis
Charter No. 13936
<PAGE>
CERTIFIED RESOLUTION
I hereby certify that the following is an excerpt from a letter dated October 3,
1994 from the Office of the Comptroller of the Currency (OCC) confirming the
Bank's change of name:
THE OCC HAS RECORDED THAT AS OF OCTOBER 1, 1994, THE TITLE OF
UNITED MISSOURI BANK, NATIONAL ASSOCIATION, CHARTER NO. 13936,
WAS CHANGED TO "UMB BANK, NATIONAL ASSOCIATION."
/s/ R. William Bloemker
--------------------------------
Assistant Secretary
[SEAL]
<PAGE>
T-l Exhibit 3
C E R T I F I C A T E
For and on behalf of UMB Bank, National Association, a national banking
association under the laws of the United States of America, the undersigned, R.
William Bloemker, Assistant Secretary of said Association, hereby certifies that
the attached document is a true and correct copy of the certificate issued by
the Comptroller of the Currency of the United States evidencing its authority to
exercise fiduciary powers under the statutes of the United States.
Certified under the corporate seal of said Association this 8th day of May,
1995.
/s/ R. William Bloemker
-----------------------------
Assistant Secretary
<PAGE>
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
WHEREAS, UNITED MISSOURI BANK OF KANSAS CITY, NATIONAL ASSOCIATION,
located in Kansas City, State of Missouri, being a National Banking
Association, organized under the statutes of the United States, has made
application for authority to act as fiduciary
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the necessary approval has been given
and that the said association is authorized to act in all fiduciary
capacities permitted by such statutes.
IN TESTIMONY WHEREOF, witness my signature and
seal of office this thirty first day of December, 1972
[Seal]
Acting Comptroller of the Currency
Charter No. 13936
----------
<PAGE>
T-l Exhibit No. 4
TO WHOM IT MAY CONCERN
The attached ByLaws are the ByLaws for the UMB Bank, National Association
and are current as of this date.
/s/ R. William Bloemker
-----------------------------
Assistant Secretary
May 8, 1995
[SEAL]
<PAGE>
UMB BANK, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1.1 - WHERE HELD. All meetings of shareholders of this Association
shall be held at its main banking house in Kansas City, Jackson County,
Missouri, or at such other place as the Board of Directors may from time to time
designate.
Section 1.2 - ANNUAL MEETING. The annual meeting of shareholders shall be held
at 11 o'clock in the forenoon, or at such other time as shall be stated in the
notice thereof, on the third Wednesday of January in each year or, if that day
be a legal holiday, on the next succeeding banking day, for the purpose of
electing a Board of Directors and transacting such other business as may
properly come before the meeting.
Section 1.3 - SPECIAL MEETINGS. Except as otherwise provided by law, special
meetings of shareholders may be called for any purpose, at any time, by the
Board of Directors or by any three or more shareholders owning, in the
aggregate, not less than ten percent (10%) of the outstanding stock in the
Association.
Section 1.4 - NOTICE OF MEETINGS. Written notice of the time, place, and
purpose of any meeting of shareholders shall be given to each shareholder (a) by
delivering a copy thereof in person to the shareholder, or (b) by depositing a
copy thereof in the U.S. mails, postage prepaid, addressed to the shareholder at
his address appearing on the books of the Association, in either case at least
ten (10) days prior to the date fixed for the meeting.
Section 1.5 - QUORUM. A majority of the outstanding capital stock, represented
in person or by proxy, shall constitute a quorum for the transaction of business
at any meeting or shareholders, unless otherwise provided by law. A majority of
the votes cast shall decide every question or matter submitted to the
shareholders at any meeting, unless otherwise provided by law or by the Articles
of Association.
Section 1.6 - ADJOURNMENT. Any meeting of shareholders may, by majority vote of
the shares represented at such meeting, in person or by proxy, though less than
a quorum, be adjourned from day to day or from time to time, not exceeding, in
the case of elections of directors, sixty (60) days from such adjournment,
without further notice, until a quorum shall attend or the business thereof
shall be completed. At any such adjourned meeting, any business may be
transacted which might have been transacted at the meeting as originally called.
<PAGE>
Section 1.7 - VOTING. Each shareholder shall be entitled to one (1) vote on
each share of stock held, except that in the election of directors each
shareholder shall have the right to cast as many votes, in the aggregate, as
shall equal the number of shares owned by him, multiplied by the number of
directors to be elected, and said votes may be cast for one director or
distributed among two (2) or more candidates. Voting may be in person or by
proxy, but no officer or employee of this Association shall act as proxy.
Authority to vote by proxy shall be by written instrument, dated and filed with
the records of the meeting, and shall be valid only for one meeting, to be
specified therein, and any adjournments of such meeting.
ARTICLE II
DIRECTORS
Section 2.1 - NUMBER AND QUALIFICATIONS. The Board of Directors (hereinafter
sometimes referred to as the "Board") shall consist of not less than five (5)
nor more than twenty-five (25) shareholders, the exact number, within such
limits, to be fixed and determined from time to time by resolution of a majority
of the full Board of Directors or by resolution of the shareholders at any
meeting thereof; provided, however, that a majority of the full Board of
Directors shall not increase the number of directors to a number which: (a)
exceeds by more than two (2) the number of directors last elected by
shareholders where such number was fifteen (15) or less; or (b) exceeds by more
than four (4) the number of directors last elected by shareholders where such
number was sixteen (16) or more. No person who has attained the age of seventy
(70) shall be eligible for election to the Board of Directors unless such person
is actively engaged in business at the time of his election, but any person not
so disqualified at the time of his election as a director shall be entitled to
serve until the end of his term. All directors shall hold office for one (1)
year and until their successors are elected and qualified.
Section 2.2 - ADVISORY DIRECTORS. The Board of Directors may appoint Advisory
Directors, chosen from former directors of the Association or such other persons
as the Board shall select. The Advisory Directors shall meet with the Board at
all regular and special meetings of the Board and may participate in such
meetings but shall have no vote. They shall perform such other advisory
functions and shall render such services as may from time to time be directed by
the Board.
Section 2.3 - POWERS. The Board shall manage and administer the business and
affairs of the Association. Except as expressly limited by law, all corporate
powers of the Association shall be vested in and may be exercised by said Board.
It may not delegate responsibility for its duties to others, but may assign the
authority and responsibility for various functions to such directors, committees
and officers or other employees as it shall see fit.
<PAGE>
Section 2.4 - VACANCIES. In case of vacancy occurring on the Board through
death, resignation, disqualification, disability or any other cause, such
vacancy may be filled at any regular or special meeting of the Board by vote of
a majority of the surviving or remaining directors then in office. Any director
elected to fill a vacancy shall hold office for the unexpired term of the
director whose place was vacated and until the election and qualification of his
successor.
Section 2.5 - ORGANIZATION MEETING. Following the annual meeting of
shareholders, the Corporate Secretary shall notify the directors elect of their
election and of the time and place of the next regular meeting of the Board, at
which the new Board will be organized and the members of the Board will take the
oath required by law, after which the Board will appoint committees and the
executive officers of the Association, and transact such other business as may
properly come before the meeting; provided, however, that if the organization
meeting of the Board shall be held immediately following the annual meeting of
shareholders, no notice thereof shall be required except an announcement thereof
at the meeting of directors.
Section 2.6 - REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held, without notice except as provided for the organization meeting,
on the third Wednesday of each month at the main banking house in Kansas City,
Jackson County, Missouri. When any regular meeting of the Board falls upon a
holiday, the meeting shall be held on the next banking day, unless the Board
shall designate some other day. A regular monthly meeting of the Board may, by
action of the Board at its preceding meeting, be postponed to a later day in the
same month.
Section 2.7 - SPECIAL MEETINGS. Special meetings of the Board may be called by
the Corporate Secretary on direction of the President or of the Chairman of the
Board, or at the request of three (3) or more directors. Each member of the
Board shall be given notice, by telegram, letter, or in person, stating the
time, place and purpose of such meeting.
Section 2.8 - QUORUM. Except when otherwise provided by law, a majority of the
directors shall constitute a quorum for the transaction of business at any
meeting, but a lesser number may adjourn any meeting, from time to time, and the
meeting may be held, as adjourned, without further notice.
Section 2.9 - VOTING. A majority of the directors present and voting at any
meeting of the Board shall decide each matter considered. A director may not
vote by proxy.
Section 2.10 - COMPENSATION OF DIRECTORS. The compensation to be paid the
directors of the Association for their services shall be determined from time to
time by the Board.
<PAGE>
ARTICLE III
COMMITTEES APPOINTED BY THE BOARD
Section 3.1 - STANDING COMMITTEES. The standing committees of this Association
shall be the Management Committee, Executive Committee, the Officers' Salary
Committee, the Discount Committee, the Bond Investment Committee, the Trust
Policy Committee, the Bank Examining Committee and the Trust Auditing Committee.
The members of the standing committees shall be appointed annually by the Board
of Directors at its organization meeting, or, on notice, at any subsequent
meeting of the Board, to serve until their respective successors shall have been
appointed. The President and the Chairman of the Board shall be, ex officio,
members of all standing committees except the Bank Examining Committee and the
Trust Auditing Committee. Each standing committee shall keep minutes of its
meetings, showing the action taken on all matters considered. A report of all
action so taken shall be made to the Board, and a copy of such minutes shall be
available for examination by members of the Board.
Section 3.2 - MANAGEMENT COMMITTEE. The Management Committee shall consist of
such executive officers of the Association as shall be designated by the Board.
One of the members of the Committee shall be designated by the Board as
Chairman. The Committee may adopt policies (not inconsistent with policies and
delegations of authority prescribed by these By-Laws or by the Board) with
respect to the executive and administrative functions of the Association, and in
general, it shall coordinate the performance of such functions in and among
the various departments of the Association, assisting and advising the executive
officers or department heads upon matters referred to it by such officers or
department heads. The Committee shall make reports and recommendations to the
Board upon such policies or other matters as it deems advisable or as may be
referred to it by the Board, and shall have such other powers and duties as may
be delegated or assigned to it by the Board from time to time. The secretary of
the Committee may be designated by the Board, or, in default thereof, by the
Committee, and may but need not be a member thereof.
Section 3.3 - EXECUTIVE COMMITTEE. The Executive Committee shall consist of
such executive officers of the Association as shall be designated by the Board.
One of the members of the Committee shall be designated by the Board as
Chairman. The Committee shall carry out such responsibilities and duties as the
Management Committee shall delegate to it, from time to time.
Section 3.4 - OFFICERS' SALARY COMMITTEE. The Officers' Salary Committee shall
consist of such directors and officers of the Association as may be designated
by the Board. It shall study and consider the compensation to be paid to
officers of the Association and shall make recommendations to the Board with
respect thereto and with respect to such other matters as may be referred to it
by the Board.
<PAGE>
Section 3.5 - DISCOUNT COMMITTEE. The Discount Committee shall consist of such
directors and officers as shall be designated by the Board of Directors. It
shall have the power to discount and purchase bills, notes and other evidences
of debt; to buy and sell bills of exchange; to examine and approve loans and
discounts; and to exercise authority regarding loans and discounts held by the
Association. At each regular meeting of the Board, the Board shall approve or
disapprove the report filed with it by the Discount Committee and record its
actions in the minutes of its meeting. The powers and authority conferred upon
the Discount Committee by this Section may, with the approval of the Board of
Directors, be assigned or delegated by it, to officers of the Association,
subject to such limits and controls as the Committee may deem advisable.
Section 3.6 - BOND INVESTMENT COMMITTEE. The Bond Investment Committee shall
consist of such directors and officers as shall be designated by the Board of
Directors. It shall have power to buy and sell bonds, to examine and approve
the purchase and sale of bonds, and to exercise authority regarding bonds held
by the Association. At each regular meeting of the Board, the Board shall
approve or disapprove the report iled with it by the Bond Investment Committee
and record its action in the minutes of its meeting.
Section 3.7 - TRUST POLICY COMMITTEE. The Trust Policy Committee shall consist
of such directors and officers of the Association as shall be designated by the
Board of Directors. Such committee shall have and exercise such of the Bank's
fiduciary powers as may be assigned to it by the Board, with power to further
assign, subject to its control, the exercise of such powers to other committees,
officers and employees. The action of the Trust Policy Committee shall, at all
times, be subject to control by the Board.
Section 3.8 - BANK EXAMINING COMMITTEE. The Bank Examining Committee shall
consist of such directors of the Association as shall be designated by the
Board, none of whom shall be an active officer of the Association. It shall
make suitable examinations at least once during each period of twelve (12)
months of the affairs of the Association or cause a suitable audit to be made by
auditors responsible only to the Board of Directors. The result of such
examinations shall be reported in writing, to the Board at the next regular
meeting thereafter and shall state whether the Association is in a sound and
solvent condition, whether adequate internal controls and procedures are being
maintained, and shall recommend to the Board such changes as the Committee shall
deem advisable. The Bank Examining Committee, with the approval of the Board of
Directors, may employ a qualified firm of certified public accountants to make
an examination and audit of the Association. If such a procedure is followed,
the annual examination of directors, will be deemed sufficient to comply with
the requirements of this section of the By-Laws.
<PAGE>
Section 3.9 - TRUST AUDITING COMMITTEE. The Trust Auditing Committee shall
consist of such directors of the Association as shall be designated by the
Board, none of whom shall be an active officer of the Association. At least
once during each calendar year, and within fifteen (15) months of the last such
audit, the Trust Auditing Committee shall make suitable audits of the Trust
Departments or cause suitable audit to be made by auditors responsible only to
the Board of Directors, and at such time shall ascertain whether the Departments
have been administered in accordance with law, the Regulations of the
Comptroller and sound fiduciary practices. As an alternative, in lieu of such
periodic audits, the Board may elect to adopt an adequate continuous audit
system.
Section 3.10 - OTHER COMMITTEES. The Board may appoint, from time to time, from
its own members or from officers of the Association, or both, other committees
of one or more persons for such purposes and with such powers as the Board may
determine.
Section 3.11 - COMPENSATION OF COMMITTEE MEMBERS. The Board shall determine the
compensation to be paid to each member of any committee appointed by it for
services on such committee, but no such compensation shall be paid to any
committee member who shall at the time be receiving a salary from the
Association as an officer thereof.
ARTICLE IV
OFFICERS AND EMPLOYEES
Section 4.1 - CHAIRMAN OF THE BOARD. The Board of Directors shall appoint one
of its members (who may, but need not, be President of the Association) as
Chairman of the Board. He shall preside at all meeting of the Board of
Directors and shall have general executive powers and such further powers and
duties as from time to time may be conferred upon, or assigned to, him by the
Board of Directors. He shall be, ex officio, a member of all standing
committees except the Bank Examining Committee and the Trust Auditing Committee.
Section 4.2 - PRESIDENT. The Board of Directors shall appoint one of its
members to be the President of this Association. The President shall be the
chief executive officer of the Association, except as the Board of Directors may
otherwise provide, and shall have and may exercise any and all other powers and
duties pertaining to such office. He shall also have and may exercise such
further powers and duties as from time to time may be conferred upon, or
assigned to, him by the Board of Directors. He shall be, ex officio, a member
of all standing committees except the Bank Examining Committee and the Trust
Auditing Committee.
<PAGE>
Section 4.3 - CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Board of Directors may
appoint a Chairman of the Executive Committee, who shall have general executive
powers and shall have and may exercise such further powers and duties as from
time to time may be conferred upon, or assigned to, him by the Board of
Directors.
Section 4.4 - VICE PRESIDENTS. The Board of Directors shall appoint one or more
Vice Presidents. Each Vice President shall have such powers and duties as may
be assigned to him by the Board and may be given such descriptive or functional
titles as the Board may designate.
Section 4.5 - TRUST OFFICERS. The Board of Directors shall appoint one or more
Trust Officers. Each Trust Officer shall have such powers and duties as may be
assigned to him by the Board of Directors in accordance with the provisions of
Article V. The Trust Officers may be given such descriptive or functional
titles as the Board may designate.
Section 4.6 - CORPORATE SECRETARY. The Board of Directors shall appoint a
Corporate Secretary. The Corporate Secretary shall be responsible for the
minutes book of the Association, in which he shall maintain and preserve the
organization papers of the Association, the Articles of Association, the
By-Laws, minutes of regular and special meetings of the shareholders and of the
Board of Directors, and reports by officers and committees of the Association to
the shareholders and to the Board of Directors. He shall attend all meetings of
the shareholders and of the Board of Directors and shall act as the clerk of
such meetings and shall prepare and sign the minutes of such meetings. He shall
have custody of the corporate seal of the Association and of the stock transfer
books, except as given to the Comptroller's Department or the Corporate Trust
Department to act as transfer agent and registrar of the Association's capital
stock, and of such other documents and records as the Board of Directors shall
entrust to him. The Secretary shall give such notice of meetings of the
shareholders and of the Board of Directors as is required by law, the Articles
of the Association and the By-Laws. In addition, he shall perform such other
duties as may be assigned to him from time to time by the Board of Directors.
The Assistant Secretaries shall render the Corporate Secretary such assistance
as he shall require in the performance of his office. During his absence or
inability to act, the Assistant Secretaries shall be vested with the powers and
perform the duties of the Corporate Secretary.
Section 4.7 - CASHIER. The Board of Directors may appoint a Cashier. He shall
have such powers and shall perform such duties as may be assigned to him by
resolution of the Board of Directors.
Section 4.8 - COMPTROLLER. The Board of Directors shall appoint a Comptroller.
The Comptroller shall institute and maintain the accounting policies and
practices established by the Board of Directors. He shall maintain, or cause to
be maintained, adequate records of all transactions of the Association. He
shall be responsible for the preparation of reports and returns to taxing and
regulatory authorities, and at meetings of the Board of Directors shall furnish
true and correct statements of condition and statements of
<PAGE>
operations of the Association and such further information and data, and
analyses thereof, as the Board of Directors may require. He shall have custody
of the Association's insurance policies. In addition, the Comptroller shall
perform such other duties as may be assigned to him, from time to time by the
Board of Directors. The Assistant Comptroller(s) shall render the Comptroller
such assistance as he shall require in the performance of the duties of his
office and, during his absence or inability to act, the Assistant
Comptroller(s), in the order designated by the Board of Directors, shall be
vested with the powers and perform the duties of the Comptroller.
Section 4.9 - AUDITOR. The Board of Directors shall appoint an Auditor of the
Association. He shall see that adequate audits of the Association are currently
and regularly made and that adequate audit systems and controls are established
and maintained. He shall examine each department and activity of the
Association and may inquire into transactions affecting the Association
involving any officer or employee thereof. The Board, however, may, in lieu of
appointing an Auditor, assign the duties thereof to the Auditor of the parent
company of the Association.
Section 4.10 - OTHER OFFICERS. The Board of Directors may appoint one or more
Assistant Vice Presidents, one or more Assistant Trust Officers, one or more
Assistant Secretaries, one or more Assistant Cashiers, and such other officers
and Attorneys-In-Fact as from time to time may appear to the Board of Directors
to be required or desirable to transact the business of the Association. The
power to appoint such assistant or the additional officers may be delegated to
the Chairman of the Board or the President, or to such other executive officer
or officers as the Board may designate, but the power to appoint any officer of
the Audit Department or any Assistant Secretary may not be so delegated. Any
officer and Attorney-In-Fact appointed as herein provided shall exercise such
powers and perform such duties as pertain to his office or as may be conferred
upon or assigned to him by the Board of Directors of by the officer authorized
to make such appointment.
Section 4.11 - TENURE OF OFFICE. The Chairman of the Board and the President
shall hold office for the current year for which Board of Directors of which
they are members was elected, unless either of them shall resign, become
disqualified or be removed, and any vacancy occurring in either of such offices
shall be filled promptly by the Board of Directors. All other officers of the
Association shall serve at the pleasure of the Board of Directors.
Section 4.12 - COMPENSATION OF OFFICERS. The compensation of the officers of
the Association shall be fixed and may be altered, from time to time, by the
Board of Directors or, in the case of officers appointed by another officer, as
authorized by Section 4.10 of this Article, by the officer or officers making
such appointment, subject to the supervisory control of, and in accordance with
the policies established by, the Board.
<PAGE>
Section 4.13 - COMBINING OFFICES. The Board of Directors, in its discretion,
may combine two or more offices and direct that they be filled by the same
individual, except that (a) the office of Corporate Secretary shall not be
combined with that of the Chairman of the Board or of the President and (b) the
office of Auditor shall not be combined with any other office.
Section 4.14 - SUCCESSION. During the absence of the Chairman of the Board, or
such other officer designated as Chief Executive Officer, all of the duties
pertaining to his office under these By-Laws and the resolutions of the Board of
Directors shall, subject to the supervisory control of the Board, devolve upon,
and be performed by, the officers, successively, who are next in the order of
authority as established by the Board of Directors from time to time, or, in the
absence of an order of authority so established, in the order of Chairman of the
Board, President and Chairman of the Executive Committee as may be applicable in
the particular case.
Section 4.15 - CLERKS AND AGENTS. Any one of the Chairman of the Board,
President or Chairman of the Executive Committee, or any officer of the
Association authorized by them, may appoint and dismiss all or any clerks,
agents and employees and prescribe their duties and the conditions of their
employment, and from time to time fix their compensation.
Section 4.16 - REQUIRING BOND. The Board of Directors shall require such
officers and employees of the Association as it shall designate to give bond, of
suitable amount, with security to be approved by the Board, conditioned for the
honest and faithful discharge by each such officer or employee of his respective
duties. In the discretion of the Board, such bonds may be in blanket form and
the premiums may be paid by the Association. The amount of such bonds, form of
coverage, and the company acting as surety therefor, shall be reviewed by the
Board of Directors each year.
ARTICLE V
ADMINISTRATION OF TRUST POWERS
Section 5.1 - TRUST DEPARTMENT. ORGANIZATION. There shall be one or more
departments of the Association which shall perform the fiduciary
responsibilities of the Association.
Section 5.2 - MANAGEMENT OF DEPARTMENT. The Board of Directors shall be
responsible for the management and administration of the Trust Department or
Departments, but is may assign or delegate such of its powers and authority to
the Trust Policy Committee and to such other committees and officers of the
Association as it may deem advisable.
Section 5.3 - DEPARTMENT HEADS. The Board of Directors shall designate one of
the Trust Officers as the chief executive of each Trust Department. His duties
shall be to manage, supervise and direct all activities of such Department,
subject to such supervision as may be vested in the Trust Policy and other
committees. He shall do, or cause
<PAGE>
to be done, all things necessary or proper in carrying on the business of such
Department in accordance with provisions of law, applicable regulations and
policies established by authority of the Board. He shall act pursuant to
opinions of counsel where such opinion is deemed necessary. He shall be
responsible for all assets and documents held by the Association in connection
with fiduciary matters, in such Department, except as otherwise provided in this
Article V.
Section 5.4 - CUSTODY OF SECURITIES. The Board of Directors shall designate two
or more officers or employees of the Association to have joint custody of the
investments of each trust account administered by the Trust Department or
Departments.
Section 5.5 - TRUST DEPARTMENT FILES. There shall be maintained in each Trust
Department files containing all fiduciary records necessary to assure that it
fiduciary responsibilities have been properly undertaken and discharged.
Section 5.6 - TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested in accordance with the instrument establishing the fiduciary
relationship and governing law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest under
the laws of the State of Missouri and the decisions of its courts.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 - TRANSFERS. Shares of the capital stock of the Association shall
be transferable only on the books of the Association, and a transfer book shall
be kept in which all transfers of stock shall be recorded.
Section 6.2 - STOCK CERTIFICATES. Certificates of stock shall bear the
signatures of (i) the Chairman of the Board, the President or any Vice
President, and (ii) the Secretary, Cashier, any Assistant Secretary, or any
other officer appointed by the Board of Directors for that purpose; and the seal
of the Association shall be impressed, engraved, or printed thereon. Such
signatures may be manual or engraved, printed or otherwise impressed by
facsimile process; but if both of the required signatures are by facsimile then
such certificates shall be manually countersigned by the person or persons
thereunto authorized by the Board of Directors. Certificates bearing the
facsimile signature of an authorized officer may be validly issued even though
the person so named shall have ceased to hold such office at the time of
issuance. Each certificate shall recite on its face that the stock represented
thereby is transferable only upon the books of the Association upon the
surrender of such certificate properly endorsed.
<PAGE>
Section 6.3 - CLOSING TRANSFER BOOKS OR FIXING RECORD DATE. The Board of
Directors shall have power to close the transfer books of the Association for a
period not exceeding thirty (30) days preceding the date of any meeting of
shareholders, or the date of payment of any dividend, or the date of allotment
of rights, or the date when any change or conversion of exchange of shares shall
go into effect; provided, however, that in lieu of closing the said transfer
books, the Board of Directors may fix, in advance, a date, not exceeding thirty
(30) days preceding the date of any such event, as record date for the
determination of the shareholders entitled to notice of, and to vote at, any
such meeting (and any adjournment thereof), or entitled to receive payment of
any such dividend or allotment of such rights, or to exercise rights in respect
of any such change, conversion or exchange of shares, and in such case, only
such shareholders as shall be shareholders of record at the close of business on
the date of closing the transfer books or on the record date so fixed shall be
entitled to notice of, and to vote at, such meeting (and any adjournment
thereof), or to receive payment of such dividend or allotment of such rights, or
to exercise such rights, as the case may be.
ARTICLE VII
CORPORATE SEAL
Section 7.1 - AUTHORITY TO AFFIX. The President, the Corporate Secretary, the
Cashier, and any Assistant Secretary or other officer designated by the Board of
Directors, shall have authority to affix the corporate seal on any document
requiring such seal, and to attest the same. The seal shall be substantially in
the following form:
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 - FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
Section 8.2 - EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairman of the Board, the President, any Vice President,
or the Cashier; and, if in connection with the exercise of fiduciary powers of
the Association, by any of said officers or by any authorized officer of the
Trust Department or Departments. Any such instruments may also be executed,
acknowledged, verified, delivered, or accepted on behalf of the Association in
such other manner and by such other officers as the Board of Directors may from
time to time direct. The provisions of
<PAGE>
this Section are supplementary to any other provisions of these By-Laws.
Section 8.3 - BANKING HOURS. The Association shall be open for business on such
days and during such hours as may be prescribed by resolution of the Board of
Directors. Unless and until the Directors shall prescribe other and different
banking hours, this Association's main office shall be open for business from
9:30 o'clock a.m. to 2:00 o'clock p.m. of each day, except Fridays when the
hours shall be from 9:30 o'clock a.m. to 6:00 o'clock p.m., and except that the
Association shall be closed on Saturdays and Sundays, and, with the approval of
the Board on days recognized by the laws of the State of Missouri as public
holiday.
ARTICLE IX
BY-LAWS
Section 9.1. - INSPECTION. A copy of the By-Laws, with all amendments thereto,
shall at all times be kept in a convenient place at the main office of the
Association and shall be open for inspection to all shareholders during banking
hours.
Section 9.2 - AMENDMENTS. The By-Laws may be amended, altered or repealed by
vote of a majority of the entire Board of Directors at any meeting of the Board,
provided that ten (10) days' written notice of the proposed change has been
given to each Director. No amendment may be made unless the By-Laws, as
amended, is consistent with the requirements of the laws of the United States
and with the provisions of the Articles of the Association. A certified copy of
all amendments to the By-Laws shall be forwarded to the Comptroller of the
Currency immediately after adoption.
10-1-94
<PAGE>
T-l Exhibit 6
Consent of Trustee
Pursuant to Section 32l(b) of the Trust Indenture Act of l939, UMB
Bank, National Association, a national bank organized under the laws of the
United States, hereby consents that reports of examinations by the Comptroller
of the Currency, of the Federal Deposit Insurance Corporation, and any other
federal, state, territorial or district authorities may be furnished by such
authorities to the Securities and Exchange Commission upon request therefore.
UMB BANK, NATIONAL ASSOCIATION
BY: /s/ Frank C. Bramwell
---------------------------------
Frank C. Bramwell, Vice President
Date: May 8, 1995
<PAGE>
Call Date: 3/31/95 ST-BK: 29-2668 FFIEC 032
Page RC-1
Legal Title of Bank: UMB BANK, N.A.
Address: P. O. BOX 419226
City, State Zip: KANSAS CITY, MO 64141-6226
FDIC Certificate No.: 13601
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - - BALANCE SHEET
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Assets
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1) . . . . . . . . . . 0081 443,831 1.a.
b. Interest-bearing balances (2). . . . . . . . . . . . . . . . . . . . . . . 0071 0 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . . . . . 1754 100,581 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . . . . . . 1773 864,681 2.b.
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0276 235,721 3.a.
b. Securities purchased under agreements to resell. . . . . . . . . . . . . . 0277 0 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C). . . . . . . . . . . . . . . . RCON 2122 1,103,939 4.a.
b. LESS: Allowances for loan and lease losses. . . . . RCON 3123 9,771 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . RCON 31280 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve ((item 4.a minus 4.b and 4.c). . . . . . . . . . . . . . . . . 2125 1,094,168 4.d.
5. Trading assets (from Schedule RC-D). . . . . . . . . . . . . . . . . . . . . . 3545 54,310 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . . . . . . 2145 77,680 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . . . . . . 2150 4,180 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . . . . 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding . . . . . . . . . 2155 3,468 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . . 2143 2,111 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . . . . . . . . . . 2160 65,944 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . . . . . . 2170 2,946,675 12.
<FN>
- ---------------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE>
Call Date: 3/31/95 ST-BK: 29-2668 FFIEC 032
Page RC- 2
Legal Title of Bank: UMB BANK, N.A.
Address: P. O. BOX 419226
City, State Zip: KANSAS CITY, MO 64141-6226
FDIC Certificate No.: 13601
SCHEDULE RC - - CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2200 2,498,620 13.a.
(1) Noninterest-bearing (1). . . . . . . . . . . . . RCON 6631 1,036,507 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . RCON 6636 1,462,113 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Noninterest-bearing (1). . . . . . . . . . . . . . . . . . . . . . . .
c. (2) Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . .
14. Federal funds purchased and securities sold under agreements to
repurchase:
a. Federal funds purchased. . . . . . . . . . . . . . . . . . . . . . . . . . 0278 163,253 14.a.
b. Securities sold under agreements to repurchase . . . . . . . . . . . . . . 0279 0 14.b.
15. a. Demand notes issued to the U. S. Treasury. . . . . . . . . . . . . . . . . 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . . . . . 3548 0 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . . . . . . . . . 2332 0 16.a.
b. With original maturity of more than one year . . . . . . . . . . . . . . . 2333 0 16.b.
17. Mortgage indebtedness and obligations under capitalized leases . . . . . . . . 2910 0 17.
18. Bank's liability on acceptances executed and outstanding . . . . . . . . . . . 2920 3,468 18.
19. Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . . 3200 0 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . . . . . . . . . . 2930 42,524 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . . . . . . . . . . 2948 2,707,865 21.
22. Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 16,500 24.
25. Surplus (exclude all surplus related to preferred stock) . . . . . . . . . . . 3839 22,742 25.
26. a. Undivided profits and capital reserves. . . . . . . . . . . . . . . . . . . 3632 206,541 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities. . . 8434 (6,973) 26.b.
27. Cumulative foreign currency translation adjustments. . . . . . . . . . . . . .
28. Total equity capital (sum of items 23 through 27). . . . . . . . . . . . . . . 3210 238,810 28.
29. Total liabilities, limited-life preferred stock, and equity capital
(sum of items 21, 22, and 28) . . . . . . . . . . . . . . . . . . . . . . . . 3300 2,946,675 29.
<FN>
- -------------------------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
</TABLE>
