AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 18, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KCPL FINANCING I
KCPL FINANCING II KANSAS CITY POWER & LIGHT
KCPL FINANCING III COMPANY
(Exact name of registrants as (Exact name of registrant as
specified in their Trust Agreements) specified in its charter)
DELAWARE MISSOURI
(State or other jurisdiction of incorporation or organization)
(To be applied for) (I.R.S. Employer Identification Nos.) 44-0308720
Jeanie Sell Latz
Senior Vice President and Chief Legal Officer
1201 Walnut Kansas City Power & Light Company
Kansas City, Missouri 64106-2124 1201 Walnut
(816) 556-2200 Kansas City, Missouri 64106-2124
(Address, including zip code, and (Name, Address, including zip code, and
telephone number including area telephone number including area code, of
code, of registrants' principal agent for service)
executive offices)
PLEASE SEND COPIES OF ALL CORRESPONDENCE TO:
R. Todd Vieregg, P.C.
Sidley & Austin
One First National Plaza
Chicago, IL 60603
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE, AS DETERMINED BY
MARKET CONDITIONS AND OTHER FACTORS.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed maximum
Title of each class of Amount to offering price aggregate offering Amount of
securities to be registered be registered (1) per unit (2) price (2) registration fee
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KCPL Financing I
KCPL Financing II
KCPL Financing III
Preferred Securities............
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Kansas City Power & Light Company
Guarantees with respect to
Preferred Securities (3)........
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Kansas City Power & Light Company
Junior Subordinated Deferrable
Interest Debentures.............
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Total............................. $300,000,000 100% $300,000,000 $90,909
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(1) There are being registered hereunder a presently indeterminate number of
Preferred Securities of KCPL Financing I, KCPL Financing II and KCPL
Financing III (together with related Guarantees and Junior Subordinated
Deferrable Interest Debentures of Kansas City Power & Light Company, for
which no separate consideration will be received by any of the Registrants)
all with an aggregate initial public offering price not to exceed
$300,000,000.
(2) Pursuant to Rule 457(n) and (o), the registration fee is calculated on the
basis of the proposed aggregate maximum offering price of the Preferred
Securities.
(3) Includes the rights of holders of the Preferred Securities under the
Guarantee Agreements and certain back-up undertakings as described in the
Registration Statement.
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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.
EXPLANATORY NOTE
This Registration Statement contains a prospectus and form of
prospectus supplement to be used in connection with the offer and sale of
Preferred Securities of KCPL Financing I, KCPL Financing II, and KCPL Financing
III, each a Delaware business trust (collectively, the "Trusts").
Kansas City Power & Light Company and the Trusts plan to consummate
from time to time, transactions involving the sale of securities registered
pursuant to this Registration Statement, provided that the proceeds therefrom
will not exceed an aggregate amount of $300,000,000. No decisions have been
made as to which securities will be issued or the timing or size of any offering
of such securities. Such determinations will be made from time to time in the
light of market and other conditions.
Information contained in this prospectus supplement is subject to completion
pursuant to Rule 424 under the Securities Act of 1933. A registration statement
relating to these securities has been declared effective by the Securities and
Exchange Commission pursuant of Rule 415 under the Securities Act of 1933. A
final prospectus supplement will be delivered to purchasers of these securities.
This prospectus supplement and the prospectus shall not constitute an offer to
sell or the solicitation of an offer to buy nor shall there by 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.
SUBJECT TO COMPLETION, DATED ______, 199_
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED ________, 199_)
PREFERRED SECURITIES
% TRUST ORIGINATED PREFERRED SECURITIES-SM- ("TOPrS-SM-")
KCPL FINANCING I
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED BY
KANSAS CITY POWER & LIGHT COMPANY
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The % Trust Originated Preferred Securities (the "Preferred Securities")
offered hereby represent undivided preferred beneficial interests in the assets
of KCPL Financing I, a statutory business trust formed under the laws of the
State of Delaware ("the "Trust"). Kansas City Power & Light Company, a Missouri
corporation ("KCPL"), will own all of the common securities (the "Common
Securities", and together with the Preferred Securities, the "Trust Securities")
representing undivided beneficial interests in the assets of the Trust. The
Trust exists for the sole purpose of issuing the Trust Securities and investing
the proceeds thereof in an equivalent amount of % Junior Subordinated
Deferrable Interest Debentures due ____ (the "Subordinated Debentures") of KCPL.
The Subordinated Debentures will mature on ,_____, which date may be
shortened to a date not earlier than _______________, (such date, the "Stated
Maturity"), in each
(continued on next page)
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SEE "RISK FACTORS" BEGINNING ON PAGE S-7 OF THIS PROSPECTUS SUPPLEMENT FOR
CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE PREFERRED SECURITIES,
INCLUDING THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF
DISTRIBUTIONS ON THE PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF SUCH DEFERRAL.
Application has been made to list the Preferred Securities on the New York
Stock Exchange, Inc. (the "New York Stock Exchange"). If so approved, trading
of the Preferred Securities on the New York Stock Exchange is expected to
commence within a 30-day period after the initial delivery of the Preferred
Securities. See "Underwriting."
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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.
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INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE (1) COMMISSION (2) TRUST (3)(4)
Per Preferred Security $ (3) $
Total $ (3) $
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(1) Plus accrued distributions, if any, from _________ ____, 199_.
(2) The Trust and KCPL 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 Preferred
Securities will be invested in the Subordinated Debentures, KCPL has agreed
to pay to the Underwriters as compensation (the "Underwriters'
Compensation") for their arranging the investment therein of such proceeds
$ per Preferred Security (or $ in the aggregate); provided,
that such compensation for sales of 10,000 or more Preferred Securities to
a single purchaser will be $ per Preferred Security. Therefore, to
the extent of such sales, the actual amount of Underwriters' Compensation
will be less than the aggregate amount specified in the preceding sentence.
See "Underwriting."
(4) Before deducting expenses of the offering which are payable by KCPL
estimated at $ .
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The Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, 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 Preferred Securities will be made only in book-entry form
through the facilities of The Depository Trust Company, on or about
,199_.
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MERRILL LYNCH & CO.
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The date of this Prospectus Supplement is ________ , 199_.
- -SM-"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
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(CONTINUED FROM PREVIOUS PAGE)
case subject to satisfying certain conditions. The Subordinated Debentures when
issued will be unsecured obligations of KCPL and will be subordinate and junior
in right of payment to certain other indebtedness of KCPL, as described herein.
Upon an event of default under the Declaration (as defined below), the holders
of Preferred Securities will have a preference over the holders of the Common
Securities with respect to payments of distributions and payments upon
redemption, liquidation and otherwise.
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of % of the liquidation amount of $25 per
Preferred Security, accruing from the date of original issuance and payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing ("distributions"). The payment of
distributions out of moneys held by the Trust and payments on liquidation of the
Trust or the redemption of Preferred Securities, as set forth below, are
guaranteed by KCPL (the "Preferred Securities Guarantee") to the extent
described herein and under "Description of Preferred Securities Guarantees" in
the accompanying Prospectus. The Preferred Securities Guarantee covers payments
of distributions and other payments on the Preferred Securities if and to the
extent that the Trust has funds available therefor, which will not be the case
unless KCPL has made payments of interest or principal or other payments on the
Subordinated Debentures held by the Trust as its sole asset. The Preferred
Securities Guarantee, when taken together with KCPL's obligations under the
Subordinated Debentures and the Indenture (as defined below) and its obligations
under the Declaration, including its liabilities to pay costs, expenses, debts
and obligations of the Trust (other than with respect to the Trust Securities),
provide a full and unconditional guarantee of amounts due on the Preferred
Securities. See "Risk Factors-Rights Under the Preferred Securities Guarantee"
herein. The obligations of KCPL under the Preferred Securities Guarantee are
subordinate and junior in right of payment to all other liabilities of KCPL and
rank PARI PASSU with the most senior preferred stock issued from time to time by
KCPL. The obligations of KCPL under the Subordinated Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness (as
defined herein) of KCPL, which aggregated approximately $ at September 30,
1996, and rank PARI PASSU with KCPL's other general unsecured creditors. The
Subordinated Debentures purchased by the Trust may be subsequently distributed
pro rata to holders of the Preferred Securities and Common Securities in
connection with the dissolution of the Trust.
The distribution rate and the distribution payment date and other payment
dates for the Preferred Securities will correspond to the interest rate and
interest payment date and other payment dates on the Subordinated Debentures,
which will be the sole assets of the Trust. As a result, if principal or
interest is not paid on the Subordinated Debentures, no amounts will be paid on
the Preferred Securities. If KCPL does not make principal or interest payments
on the Subordinated Debentures, the Trust will not have sufficient funds to make
distributions on the Preferred Securities. In such event, the Preferred
Securities Guarantee will not apply to such distributions until the Trust has
funds available therefor.
So long as KCPL is not in default in the payment of interest on the
Subordinated Debentures, KCPL has the right to defer payments of interest on the
Subordinated Debentures by extending the interest payment period on the
Subordinated Debentures at any time for up to 20 consecutive quarters (each, an
"Extension Period"), provided that an Extension Period may not extend beyond the
Stated Maturity of the Subordinated Debentures. If interest payments are
S-5
so deferred, distributions on the Preferred Securities will also be deferred.
During such Extension Period, distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at an annual rate
of % percent per annum compounded quarterly, and during any Extension Period
holders of Preferred Securities will be required to include deferred interest
income in their gross income for United States federal income tax purposes in
advance of receipt of the cash distributions with respect to such deferred
interest payments. There could be multiple Extension Periods of varying lengths
throughout the term of the Subordinated Debentures. See "Description of the
Subordinated Debentures--Option to Extend Interest Payment Period," "Risk
Factors--Option to Extend Interest Payment Period" and "United States Federal
Income Taxation--Interest Income and Original Issue Discount."
The Subordinated Debentures are redeemable by KCPL, in whole or in part,
from time to time, on or after , or, in whole but not in part,
prior to , upon the occurrence of a Tax Event (as defined
herein). If KCPL redeems Subordinated Debentures, the Trust must redeem Trust
Securities on a pro rata basis having an aggregate liquidation amount equal to
the aggregate principal amount of the Subordinated Debentures so redeemed at $25
per Preferred Security plus accrued and unpaid distributions thereon (the
"Redemption Price") to the date fixed for redemption. See "Description of the
Preferred Securities-Tax Event Redemption." The Preferred Securities will be
redeemed upon maturity of the Subordinated Debentures.
KCPL will have the right at any time to liquidate the Trust and cause the
Subordinated Debentures to be distributed to the holders of the Trust
Securities. If the Subordinated Debentures are distributed to the holders of
the Preferred Securities, KCPL will use its best efforts to have the
Subordinated Debentures listed on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed. See "Description of the
Preferred Securities--Termination of the Trust and Distribution of Subordinated
Debentures" and "Description of the Subordinated Debentures."
In the event of the involuntary or voluntary dissolution, winding-up or
termination of the Trust, the holders of the Preferred Securities will be
entitled to receive for each Preferred Security a liquidation amount of $25 plus
accrued and unpaid distributions thereon (including interest thereon) to the
date of payment, unless, in connection with such dissolution, the Subordinated
Debentures are distributed to the holders of the Preferred Securities.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE THAT 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 TRANSACTIONS, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-6
RISK FACTORS
Prospective purchasers of 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.
ABSENCE OF PRIOR PUBLIC MARKET
Prior to this offering, there has been no public market for the Preferred
Securities. Although application has been made to list the Preferred Securities
on the New York Stock Exchange, there can be no assurance that, once listed, an
active trading market will develop for the Preferred Securities or that, if such
market develops, the market price will equal or exceed the public offering price
set forth on the cover page of this Prospectus Supplement.
RANKING OF PREFERRED SECURITIES GUARANTEE AND SUBORDINATED DEBENTURES
KCPL's obligations under the Guarantee are subordinate and junior in right
of payment to all other liabilities of KCPL, including the Subordinated
Debentures, and rank PARI PASSU with the most senior preferred stock issued from
time to time by KCPL. The obligations of KCPL under the Subordinated Debentures
are subordinate and junior in right of payment to all present and future Senior
Indebtedness of KCPL and rank PARI PASSU with obligations to or rights of KCPL's
other general unsecured creditors. No payment may be made of the principal of,
premium, if any, or interest on the Subordinated Debentures, or in respect of
any redemption, retirement, purchase or other acquisition of any of the
Subordinated Debentures, at any time when (i) there is a default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness, or (ii) the maturity of any Senior Indebtedness has been
accelerated because of a default. As of September 30, 1996, Senior Indebtedness
of KCPL aggregated approximately $____ million. There are no terms in the
Preferred Securities, the Subordinated Debentures or the Guarantee that limit
KCPL's ability to incur additional indebtedness, including indebtedness which
ranks senior to the Subordinated Debentures and the Guarantee. See "Description
of the Preferred Securities Guarantees--Status of the Preferred Securities
Guarantees" and "Description of the Subordinated Debentures" in the accompanying
Prospectus, and "Description of the Subordinated Debentures--Subordination"
herein.
RIGHTS UNDER THE PREFERRED SECURITIES GUARANTEE
The Preferred Securities Guarantee will be qualified as an indenture under
the Trust Indenture Act. The First National Bank of Chicago will act as
indenture trustee under the Preferred Securities Guarantee for the purposes of
compliance with the provisions of the Trust Indenture Act (the "Guarantee
Trustee"). The Guarantee Trustee will hold the Preferred Securities Guarantee
for the benefit of the holders of the Preferred Securities.
The Preferred Securities Guarantee guarantees to the holders of the
Preferred Securities the payment of (i) any accrued and unpaid distributions
that are required to be paid on the Preferred Securities, to the extent the
Trust has funds available therefor, (ii) the Redemption Price, including all
accrued and unpaid distributions with respect to Preferred Securities called for
redemption by the Trust, to the extent the Trust has funds available therefor,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Trust (other than in connection with the distribution of Subordinated
Debentures to the holders of Preferred
S-7
Securities or a redemption of all the Preferred Securities), the lesser of (a)
the aggregate of the liquidation amount and all accrued and unpaid distributions
on the Preferred Securities to the date of the payment to the extent the Trust
has funds available therefor or (b) the amount of assets of the Trust remaining
available for distribution to holders of the Preferred Securities in liquidation
of the Trust.
The holders of a majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under the
Preferred Securities Guarantee. Notwithstanding the foregoing, any holder of
Preferred Securities may institute a legal proceeding directly against KCPL to
enforce such holder's rights under the Preferred Securities Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other person or entity. If KCPL were to default on its obligation to pay
amounts payable on the Subordinated Debentures or otherwise, the Trust would
lack available funds for the payment of distributions or amounts payable on
redemption of the Preferred Securities or otherwise, and, in such event, holders
of the Preferred Securities would not be able to rely upon the Preferred
Securities Guarantee for payment of such amounts. Instead, holders of the
Preferred Securities would rely on the enforcement (1) by the Property Trustee
(as defined herein) of its rights as registered holder of the Subordinated
Debentures against KCPL pursuant to the terms of the Subordinated Debentures or
(2) by such holders of their right against KCPL to enforce payments on the
Subordinated Debentures. See "Description of the Preferred Securities
Guarantees" and "Description of the Subordinated Debentures" in the accompanying
Prospectus. The Declaration provides that each holder of Preferred Securities,
by acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee, including the subordination provisions thereof, and the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, then the holders of Preferred Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the
Subordinated Debentures against KCPL. In addition, the holders of a majority in
liquidation amount of the Preferred Securities will have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Property Trustee or to direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder of the
Subordinated Debentures. If the Property Trustee fails to enforce its rights
under the Subordinated Debentures, a holder of Preferred Securities may
institute a legal proceeding directly against KCPL to enforce the Property
Trustee's rights under the Subordinated Debentures without first instituting any
legal proceeding against the Property Trustee or any other person or entity.
Notwithstanding the foregoing, if a Declaration Event of Default has occurred
and is continuing, and such event is attributable to the failure of KCPL to pay
interest or principal on the Subordinated Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such holder of the principal of or
interest on the Subordinated Debentures having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder (a
"Direct Action") on or after the respective due date specified in the
Subordinated Debentures. In connection with such Direct Action, KCPL will be
subrogated to the rights of such holder of
S-8
Preferred Securities under the Declaration to the extent of any payment made by
KCPL to such holder of Preferred Securities in such Direct Action. The holders
of Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debentures. See "Description of
the Preferred Securities-Declaration Events of Default."
OPTION TO EXTEND INTEREST PAYMENT PERIOD
KCPL has the right under the Indenture to defer payments of interest on the
Subordinated Debentures by extending the interest payment period at any time,
and from time to time, on the Subordinated Debentures. As a consequence of such
an extension, quarterly distributions on the Preferred Securities would be
deferred (but would continue to accrue, despite such deferral, with interest
thereon compounded quarterly) by the Trust during any such Extension Period.
Such right to extend the interest payment period for the Subordinated Debentures
is limited to a period not exceeding 20 consecutive quarters, but no such
Extension Period may extend beyond the Stated Maturity of the Subordinated
Debentures. During any Extension Period, (a) KCPL may not declare or pay
dividends on, or make a distribution with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of shares of KCPL common stock in
connection with the satisfaction by KCPL of its obligations under any employee
benefit plans or any other contractual obligation of KCPL (other than a
contractual obligation ranking PARI PASSU with or junior to the Subordinated
Debentures), (ii) as a result of a reclassification of KCPL capital stock or the
exchange or conversion of one class or series of KCPL capital stock for another
class or series of KCPL capital stock or (iii) the purchase of fractional
interests in shares of KCPL capital stock pursuant to the conversion or exchange
provisions of such KCPL capital stock or the security being converted or
exchanged), (b) KCPL may not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
KCPL that rank PARI PASSU with or junior to the Subordinated Debentures, and (c)
KCPL may not make any guarantee payments with respect to the foregoing (other
than pursuant to the Preferred Securities Guarantee). Prior to the termination
of any such Extension Period, KCPL may further extend the interest payment
period; provided, that such Extension Period, together with all such previous
and further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity of the Subordinated Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, KCPL may commence a
new Extension Period, subject to the above requirements. See "Description of
the Preferred Securities-Distributions" and "Description of the Subordinated
Debentures-Option to Extend Interest Payment Period."
Should KCPL exercise its right to defer payments of interest by extending
the interest payment period, each holder of Preferred Securities would be
required to accrue income (as original issue discount ("OID")) in respect of the
interest payable thereafter allocable to its Preferred Securities for United
States federal income tax purposes, which would be allocated but not distributed
to holders of record of Preferred Securities. As a result, each such holder of
Preferred Securities would recognize income for United States federal income tax
purposes in advance of the receipt of cash and would not receive the cash from
the Trust related to such income if such holder disposed of its Preferred
Securities prior to the record date for the date on which distributions of such
amounts were made. See United States Federal Income Taxation -- Interest Income
and Original Issue Discount. KCPL has no current intention of exercising its
right to defer payments of interest by extending the interest payment period on
the Subordinated Debentures. However, should KCPL determine to exercise such
right in the future, the market price of the Preferred Securities is likely to
be affected. A holder that disposes of its Preferred
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Securities during an Extension Period, therefore, might not receive the same
return on its investment as a holder that continues to hold its Preferred
Securities. In addition, as a result of the existence of KCPL's right to defer
interest payments, the market price of the Preferred Securities (which represent
an undivided beneficial interest in the Subordinated Debentures) may be more
volatile than other securities that do not have such rights. See "United States
Federal Income Taxation--Sales of Preferred Securities."
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill") was
released, which would, among other things, generally deny interest deductions
for United States federal income tax purposes for interest on an instrument,
issued by a corporation, that has a maximum weighted average maturity of more
than 40 years. The Bill would also generally deny interest deductions for
interest on an instrument, issued by a corporation, that has a maximum term of
more than 20 years and that is not shown as indebtedness on the separate balance
sheet of the issuer or, where the instrument is issued to a related party (other
than a corporation), where the holder or some other related party issues a
related instrument that is not shown as indebtedness on the issuer's
consolidated balance sheet. The above-described provisions of the Bill were
proposed to be effective generally for debt instruments issued on or after
December 7, 1995. If either provision were to apply to the Subordinated
Debentures, KCPL would be unable to deduct interest on the Subordinated
Debentures for United States federal income tax purposes. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means Committees
issued a joint statement to the effect that it was their intention that the
effective date of the President's legislative proposals, if adopted, will be no
earlier than the date of appropriate Congressional action. KCPL believes that,
under current law, it will be able to deduct interest on the Subordinated
Debentures. There can be no assurance, however, that current or future
legislative proposals or final legislation will not affect the ability of KCPL
to deduct interest on the Subordinated Debentures. Such a change could give
rise to a Tax Event, which may permit KCPL to cause a redemption of the
Preferred Securities. See "Description of the Preferred Securities -- Tax Event
Redemption" and "United States Federal Income Taxation -- Possible Tax Law
Changes."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution or liquidation of the Trust were to
occur. Accordingly, the Preferred Securities that an investor may purchase, or
the Subordinated Debentures that the investor may receive on dissolution and
liquidation of the Trust, may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby. Because holders of
Preferred Securities may receive Subordinated Debentures upon the occurrence of
a Tax Event, or in other circumstances, prospective purchasers of Preferred
Securities are also making an investment decision with regard to the
Subordinated Debentures and should carefully review all the information
regarding the Subordinated Debentures and KCPL contained herein and in the
accompanying Prospectus. See "Description of the Preferred Securities -- Tax
Event Redemption" and "Description of the Subordinated Debentures".
S-10
REDEMPTION OR DISTRIBUTION OF THE SUBORDINATED DEBENTURES
KCPL will have the right at any time to terminate the Trust and, after
satisfaction of claims of creditors as provided by applicable law, to cause the
Subordinated Debentures to be distributed to the holders of the Trust
Securities. In certain circumstances, KCPL will have the right to redeem the
Subordinated Debentures, in whole or in part, in which event the Trust will
redeem the Trust Securities on a pro rata basis to the same extent as the
Subordinated Debentures are redeemed by KCPL. See "Description of the Preferred
Securities--Tax Event Redemption" and "United States Federal Income Taxation."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of the Trust would not be a taxable
event to holders of the Preferred Securities. If, however, the Trust is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of dissolution of the Trust, the
distribution of the Subordinated Debentures would be a taxable event to holders
of Preferred Securities. Moreover, the redemption of the Subordinated
Debentures upon occurrence of a Tax Event, or a dissolution of the Trust in
which holders of the Preferred Securities receive cash would be a taxable event
to such holders. See "United States Federal Income Taxation -- Receipt of
Subordinated Debentures or Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution or liquidation of the Trust were to
occur. Accordingly, the Preferred Securities or the Subordinated Debentures may
trade at a discount to the price that the investor paid to purchase the
Preferred Securities offered hereby. Because holders of Preferred Securities may
receive Subordinated Debentures, prospective purchasers of Preferred Securities
are also making an investment decision with regard to the Subordinated
Debentures and should carefully review all the information regarding the
Subordinated Debentures contained herein and in the accompanying Prospectus.
See "Description of the Preferred Securities--Tax Event Redemption" and
"Description of the Subordinated Debentures-General."
SHORTENING THE STATED MATURITY OF THE SUBORDINATED DEBENTURES
KCPL will have the right at any time to shorten the maturity of the
Subordinated Debentures to a date not earlier than ____________, ____________.
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will
not be entitled to vote to appoint, remove or replace, or to increase or
decrease the number of, KCPL Trustees, which voting rights are vested
exclusively in the holder of the Common Securities. See "Description of
Preferred Securities--Voting Rights."
TRADING PRICE OF PREFERRED SECURITIES
The Preferred Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder of Preferred Securities who uses the accrual
method of accounting for tax purposes (and a cash method holder, if the
Subordinated Debentures are deemed to have been issued with OID) and
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who disposes of such Preferred Securities between record dates for payments of
distributions thereon will be required to include accrued but unpaid interest on
the Subordinated Debentures through the date of disposition in income as
ordinary income (i.e., interest or possibly OID), and to add such amount to the
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. To the extent the selling price is less than the
holder's adjusted tax basis (which will include, all accrued but unpaid
interest), a holder will recognize a capital loss. Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. See United States Federal Income
Taxation -- Interest Income and Original Issue Discount" and "-- Sales of
Preferred Securities."
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction, including a change of control, or other similar transactions
involving KCPL that may adversely affect such holders. See "Description of the
Subordinated Debentures."
KANSAS CITY POWER & LIGHT COMPANY
Kansas City Power & Light Company, a Missouri corporation, is a medium-size
electric utility, headquartered in downtown Kansas City, which generates and
distributes electricity to over 430,000 customers in a 4,700-square mile area
located in 23 counties in western Missouri and eastern Kansas. Customers
include 380,000 residences, 50,000 commercial firms, and over 3,000 industries,
municipalities and other electric utilities. About two-thirds of total Kwh
sales and revenue are from Missouri customers and the remainder from Kansas
customers. The address of the principal executive office is 1201 Walnut, Kansas
City, Missouri 64106-2124 (Telephone: (816) 556-2200.
THE TRUST
The Trust is a statutory business trust formed under Delaware law pursuant
to the filing of a certificate of trust with the Delaware Secretary of State on
December __, 1996. The business of the Trust is defined in a declaration of
trust executed by KCPL, as sponsor (the "Sponsor"), and the Trustees (as defined
herein). Such declaration will be amended and restated in its entirety (as so
amended and restated, the "Declaration") substantially in the form filed as an
exhibit to the Registration Statement of which this Prospectus Supplement and
the accompanying Prospectus form a part. The Declaration will be qualified as
an indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Upon issuance of the Preferred Securities, the purchasers
thereof will own all of the Preferred Securities. See "Description of the
Preferred Securities-Book-Entry Only Issuance-The Depository Trust Company."
KCPL will acquire Common Securities in an aggregate liquidation amount equal to
approximately 3 percent of the total capital of the Trust. The Trust exists for
the exclusive purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of the Trust, (ii) investing the
gross proceeds of the Trust Securities in the Subordinated Debentures and (iii)
engaging in only those other activities necessary or incidental thereto. The
Trust has a term of 45 years, but may terminate earlier as provided in the
Declaration.
Pursuant to the Declaration, the number of the Trustees of the Trust will
initially be four. Two of the Trustees (the "Regular Trustees") will be persons
who are employees or officers of,
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or who are affiliated with, KCPL. A third trustee will be a financial
institution that is unaffiliated with KCPL, which trustee will serve as property
trustee under the Declaration and as indenture trustee for the purposes of
compliance with the provisions of the Trust Indenture Act (the "Property
Trustee"). The fourth Trustee will be either a legal entity with its principal
place of business in Delaware or an individual resident in Delaware, which will
serve for the limited purpose of satisfying certain Delaware laws (the "Delaware
Trustee"). Initially, The First National Bank of Chicago will be the Property
Trustee and First Chicago Delaware Inc. will be the Delaware Trustee until
removed or replaced by the holder of the Common Securities. For purposes of
compliance with the provisions of the Trust Indenture Act, The First National
Bank of Chicago will act as trustee (the "Preferred Guarantee Trustee") under
the Preferred Securities Guarantee. The First National Bank of Chicago will act
as Debt Trustee (as defined herein) under the Indenture. See "Description of
the Preferred Securities Guarantees" in the accompanying Prospectus and
"Description of the Preferred Securities-Voting Rights" herein.
The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and will have the power to
exercise all rights, powers and privileges under the Indenture as the holder of
the Subordinated Debentures. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest bearing bank account (the
"Property Account") to hold all payments made in respect of the Subordinated
Debentures for the benefit of the holders of the Trust Securities. The Property
Trustee will make payments of distributions and payments on liquidation,
redemption and otherwise to the holders of the Trust Securities out of funds
from the Property Account. The Preferred Guarantee Trustee will hold the
Preferred Securities Guarantee for the benefit of the holders of the Preferred
Securities. KCPL, as the direct or indirect holder of all the Common
Securities, will have the right to appoint, remove or replace any Trustee and to
increase or decrease the number of Trustees. KCPL will pay all fees and
expenses related to the Trust and the offering of the Trust Securities. See
"Description of the Subordinated Debentures-Miscellaneous."
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the
Declaration, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
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SELECTED FINANCIAL DATA
KANSAS CITY POWER & LIGHT COMPANY
Income Statement Information
Twelve Months
Year Ended December 31, Ended
------------------------------- Sept. 30, 1996
--------------
1993 1994 1995 (Unaudited)
---- ---- ----
(Thousands)
(Thousands)
Operating revenues. . . . . . . .$857,450 $868,272 $885,955 $907,105
Operating income. . . . . . . . .$156,302 $149,691 $167,048 $179,636
Net income. . . . . . . . . . . .$105,772 $104,775 $122,586 $111,753
RECENT DEVELOPMENTS
[ To be completed
as of the date of
the Prospectus Supplement]
CAPITALIZATION OF KCPL
The following table sets forth the capitalization of KCPL at September 30,
1996, and KCPL's capitalization as of such date as adjusted to reflect the sales
of the Preferred Securities but does not reflect any portion of the $398 million
principal amount of Medium-Term Notes which are being offered by the Company for
sale from time to time through agents pursuant to separate properties. In the
fourth quarter of 1996, $98 million of these Notes have been issued. The table
should be read in conjunction with KCPL's consolidated financial statements and
notes thereto included in the documents incorporated by reference herein. See
"Incorporation of Certain Documents by Reference" in the accompanying
Prospectus.
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September 30, 1996
-------------------------
(Millions)
Actual Adjusted
(unaudited)
Long-term debt(1):
Bonds $ 762 762
Subsidiary Obligations 119 119
------ ------
Total Long-term debt 881 881
Preferred Stock 90 90
Company Obligated Mandatorily Redeemable
Preferred Securities of Subsidiary Trust 300
Common equity 917 917
------ ------
Total $1888 $2188
------ ------
------ ------
(1) Includes long-term debt included in current liabilities.
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated into KCPL's
consolidated financial statements, with the Preferred Securities treated as
minority interest and shown in KCPL's balance sheet as "Company-obligated
mandatorily redeemable preferred securities of subsidiary trust holding solely
Company subordinated debt securities." The financial statement footnotes of
KCPL will reflect that the sole asset of the Trust will be the Subordinated
Debentures. See "Capitalization."
USE OF PROCEEDS
The Trust will use the proceeds of the sale of the Trust Securities to
acquire Subordinated Debentures from KCPL. KCPL intends to add the net proceeds
from the sale of the Subordinated Debentures to the general funds of KCPL for
use for corporate purposes, which may include capital expenditures,
acquisitions, refinancing or repurchase of outstanding long-term debt, preferred
and common securities, investments in subsidiaries, and repayment of short-term
debt and other business opportunities.
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee will act as the indenture trustee for
purposes of compliance with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in the
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Declaration and those made part of the Declaration by the Trust Indenture Act.
The following summary of the principal terms and provisions of the Preferred
Securities, which supplements and to the extent inconsistent, replaces, the
description set forth under the caption "Description of the Preferred
Securities" in the accompanying Prospectus, does not purport to be complete and
is subject to, and qualified in its entirety by reference to, the Declaration, a
copy of the form of which is filed as an exhibit to the Registration Statement
of which this Prospectus forms a part, the Trust Act and the Trust Indenture
Act.
GENERAL
The Declaration authorizes the Regular Trustees, on behalf of the Trust, to
issue the Preferred Securities, which represent preferred undivided beneficial
interests in the assets of the Trust, and the Common Securities, which represent
common undivided beneficial interests in the assets of the Trust. All of the
Common Securities will be owned by KCPL. The Common Securities rank PARI PASSU,
and payments will be made thereon on a pro rata basis, with the Preferred
Securities, except that upon the occurrence and during the continuation of a
Declaration Event of Default, the rights of the holders of the Common Securities
to receive payment of periodic distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights to payment of the
holders of the Preferred Securities. The Declaration does not permit the
issuance by the Trust of any securities other than the Trust Securities or the
incurrence of any indebtedness by the Trust. Pursuant to the Declaration, the
Property Trustee will own and hold the Subordinated Debentures for the benefit
of the holders of the Trust Securities. The payment of distributions out of
money held by the Trust, and payments upon redemption of the Preferred
Securities or liquidation of the Trust, are guaranteed by KCPL to the extent
described under "Description of the Preferred Securities Guarantees" in the
accompanying Prospectus. The Guarantee Trustee will hold the Preferred
Securities Guarantee for the benefit of the holders of the Preferred Securities.
The Preferred Securities Guarantee does not cover payment of distributions on
the Preferred Securities when the Trust does not have sufficient available funds
in the Property Account to make such distributions. In such event, the remedy
of a holder of Preferred Securities is to vote to direct the Property Trustee to
enforce the Property Trustee's rights under the Subordinated Debentures except
in the limited circumstances in which the holder may take Direct Action. See
"Voting Rights" and "Declaration Events of Default."
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of _____% of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears will bear interest at the same per annum rate (to the
extent permitted by applicable law). The term "distributions" as used herein
includes any such interest payable unless otherwise stated. Distributions on
the Preferred Securities will be cumulative, will accrue from the date of the
initial issuance of the Preferred Securities and will be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year
commencing _______, when, as and if available for payment by the Property
Trustee, except as otherwise described below. The amount of distributions
payable for any full quarterly period will be computed on the basis of a 360-day
year of twelve 30 day months, and for any period shorter than a full quarter, on
the basis of the actual number of days elapsed in such a 90-day quarter.
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KCPL has the right under the Indenture to defer payments of interest on the
Subordinated Debentures by extending the interest payment period from time to
time on the Subordinated Debentures issued thereunder which, if exercised, would
defer quarterly distributions on the Preferred Securities (though such
distributions would continue to accrue interest since interest would continue to
accrue on the Subordinated Debentures) during any such extended interest payment
period. In the event that KCPL exercises this right, then (a) KCPL may not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, other than (i) purchases or acquisitions of shares of KCPL common
stock in connection with the satisfaction by KCPL of its obligations under any
employee benefit plans or any other contractual obligation of KCPL (other than a
contractual obligation ranking PARI PASSU with or junior to the Subordinated
Debentures), (ii) as a result of a reclassification of KCPL capital stock or the
exchange or conversion of one class or series of KCPL capital stock for another
class or series of KCPL capital stock or (iii) the purchase of fractional
interests in shares of KCPL capital stock pursuant to the conversion or exchange
provisions of such KCPL capital stock or the security being converted or
exchanged), (b) KCPL may not make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by KCPL which rank PARI PASSU with or junior to the
Subordinated Debentures, and (c) KCPL may not make any guarantee payments with
respect to the foregoing (other than pursuant to the Preferred Securities
Guarantee). This prohibition effectively requires that any Extension Period
with respect to any series of Subordinated Debentures will also apply to each
other series of subordinated debentures issued under the Indenture to other
trusts similar to the Trust. Prior to the termination of any such Extension
Period, KCPL may further extend the interest payment period, provided that such
Extension Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend beyond the maturity of
the Subordinated Debentures. Upon the termination of any Extension Period and
the payment of all amounts then due, KCPL may select a new Extension Period as
if no Extension Period had previously been declared, subject to the above
requirements. See " -- Voting Rights" and "Description of the Subordinated
Debentures -- Interest" and "-- Option to Extend Interest Payment Period." If
distributions are deferred, the deferred distributions and accrued interest
thereon shall be paid to holders of record of the Preferred Securities, if funds
are available therefor, as they appear on the books and records of the Trust on
the record date next following the termination of such Extension Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that the Trust has funds available for the payment of such
distributions in the Property Account. The Trust's funds available for
distribution to the holders of the Preferred Securities will be limited to
payments received under the Subordinated Debentures. See "Description of the
Subordinated Debentures." The payment of distributions out of moneys held by the
Trust is guaranteed by KCPL to the extent set forth under "Description of the
Preferred Securities Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
only form, will be one Business Day (as defined herein) prior to the relevant
payment dates, which payment dates correspond to the interest payment dates on
the Subordinated Debentures. Such distributions will be paid through the
Property Trustee, which will hold amounts received in respect of the
Subordinated Debentures in the Property Account for the benefit of the holders
of the Trust Securities. Subject to any
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applicable laws and regulations and the provisions of the Declaration, each such
payment will be made as described under "-Book-Entry Only Issuance -- The
Depository Trust Company" below. In the event the Preferred Securities do not
continue to remain in book-entry only form, the Regular Trustees will have the
right to select relevant record dates which will be at least one Business Day,
but less than 60 Business Days, prior to the relevant payment dates. In the
event that any date on which distributions are to be made on the Preferred
Securities is not a Business Day, then payment of the distributions 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 will
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" means any day other
than a day on which banking institutions in Chicago, Illinois or New York, New
York are authorized or required by law to close.
REDEMPTION
The Subordinated Debentures will mature on _________ __, ____ and may be
redeemed, in whole or in part, at any time on or after __________ __, ____, or
at any time in certain circumstances upon the occurrence of a Tax Event. Upon
the repayment of the Subordinated Debentures, whether at maturity or upon
acceleration, redemption or otherwise, the proceeds from such repayment or
payment will simultaneously be applied to redeem Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debentures so repaid or redeemed at the Redemption Price; provided
that, except in the case of payments upon maturity, holders of Trust Securities
will be given not less than 30 nor more than 60 days notice of such redemption.
See "Description of the Subordinated Debentures." In the event that fewer than
all of the outstanding Preferred Securities are to be redeemed, the Preferred
Securities will be redeemed pro rata as described under "-- Book-Entry Only
Issuance-- The Depository Trust Company" below.
TAX EVENT REDEMPTION
"Tax Event" means that the Regular Trustees shall have received an opinion
from independent tax counsel experienced in such matters (a "Redemption Tax
Opinion") to the effect that, on or after the date of this Prospectus
Supplement, 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 or (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, which amendment or change is enacted, promulgated,
issued or announced or which interpretation or pronouncement is issued or
announced or which action is taken, in each case on or after the date of this
Prospectus Supplement, there is more than an insubstantial risk that interest
payable to the Trust on the Subordinated Debentures would not be deductible in
whole or in part by KCPL for United States federal income tax purposes, which
change or amendment becomes effective on or after the date of this Prospectus
Supplement.
If at any time a Tax Event has occured and is continuing with respect to
the Trust or the Preferred Securities, the Trust may, upon not less than 30 nor
more than 60 days notice, redeem the Subordinated Debentures in whole or in
part for cash within 90 days following the occurrence of such Tax Event, and,
following such redemption, Trust Securities with an
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aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debentures so redeemed will be redeemed by the Trust at the
Redemption Price on a pro rata basis; provided, however, that, if at the time
there is available to KCPL or the Trust the opportunity to eliminate, within
such 90-day period, the Tax 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 Trust, KCPL or the holders of the
Trust Securities, KCPL or the Trust will pursue such measure in lieu of
redemption.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Preferred
Securities of the Trust unless all accrued and unpaid distributions have been
paid on all Trust Securities for all quarterly distribution periods terminating
on or prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred
Securities of the Trust (which notice will be irrevocable), then by 12:00 noon,
New York City time, on the redemption date, provided that KCPL has paid to the
Property Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Subordinated Debentures, the Trust will
irrevocably deposit with the depositary funds sufficient to pay the applicable
Redemption Price and will give the depositary irrecovable instructions and
authority to pay the Redemption Price to the holders of the Preferred
Securities. See "-- Book-Entry Only Issuance -- The Depository Trust Company."
If notice of redemption has been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue and all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price, but without
interest on such Redemption Price. In the event that any date fixed for
redemption of 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 Preferred
Securities is improperly withheld or refused and not paid either by the Trust or
by KCPL pursuant to the Preferred Securities Guarantee, distributions on such
Preferred Securities will continue to accrue, from the original redemption date
to the actual 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.
In the event that fewer than all of the outstanding Preferred Securities
are to be redeemed, the Preferred Securities will be redeemed pro rata as
described under "-- Book-Entry Only Issuance -- The Depository Trust Company"
below.
Subject to the foregoing and to applicable law (including, without
limitation, United States federal securities laws), KCPL or its affiliates may,
at any time and from time to time, purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
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DISSOLUTION; DISTRIBUTION OF SUBORDINATED DEBENTURES
In the event of any voluntary dissolution, winding-up or termination of the
Trust, the holders of the Preferred Securities at that time will be entitled to
receive out of the assets of the Trust, after satisfaction of liabilities to
creditors of the Trust, distributions in an amount equal to the aggregate of the
stated liquidation amount of $25 per Preferred Security plus accrued and unpaid
distributions thereon to the date of payment (the "Liquidation Distribution"),
unless, in connection with such dissolution, winding-up or termination,
Subordinated Debentures in an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accrued and
unpaid distributions, on the Preferred Securities have been distributed on a pro
rata basis to the holders of Preferred Securities in exchange for such Preferred
Securities.
If upon any such dissolution the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities shall be paid on a pro rata basis. The
holders of the Common Securities will be entitled to receive distributions upon
any such dissolution pro rata with the holders of the Preferred Securities,
except that if a Declaration Event of Default has occurred and is continuing,
the Preferred Securities shall have a preference over the Common Securities.
Pursuant to the Declaration, the Trust will terminate (i) on________ 20 ___
[45 years], the expiration of the term of the Trust, (ii) upon the bankruptcy of
KCPL, (iii) upon the filing of a certificate of dissolution or its equivalent
with respect to KCPL, the filing of a certificate of cancellation with respect
to the Trust, or the revocation of the charter of KCPL and the expiration of 90
days after the date of revocation without a reinstatement thereof, (iv) upon the
entry of a decree of judicial dissolution of KCPL or the Trust, (v) upon the
redemption of all of the Trust Securities, (vi) upon the dissolution of the
Trust in accordance with the terms of the Trust Securities pursuant to which all
Subordinated Debentures shall have been distributed to the holders of the Trust
Securities, or (vii) at any time at the option of KCPL upon its written
direction to the Property Trustee to dissolve the Trust and distribute the
Subordinated Debentures to the holders of the Trust Securities.
If Subordinated Debentures are distributed to the holders of the Preferred
Securities, KCPL will use its best efforts to have the Subordinated Debentures
listed on the New York Stock Exchange or on such other exchange as the Preferred
Securities are then listed.
After the date for any distribution of Subordinated Debentures upon
dissolution of the Trust, (i) the Preferred Securities and Preferred Securities
Guarantees will no longer be deemed to be outstanding, (ii) the depositary or
its nominee, as the record holder of the Preferred Securities, will receive a
registered global certificate or certificates representing the Subordinated
Debentures to be delivered upon such distribution and (iii) any certificates
representing Preferred Securities and Preferred Securities Guarantees not held
by the depositary or its nominee will be deemed to represent Subordinated
Debentures having an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate
of, and accrued and unpaid interest equal to accrued and unpaid distributions
on, such Preferred Securities, until such certificates are presented to KCPL or
its agent for transfer or reissuance.
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There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for the Preferred Securities if a dissolution and liquidation of the Trust were
to occur. Accordingly, the Preferred Securities that an investor may purchase,
or the Subordinated Debentures that the investor may receive on dissolution and
liquidation of the Trust, may trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture (an "Indenture Event of Default")
(see "Description of the Subordinated Debentures -- Indenture Events of
Default") constitutes an event of default under the Declaration with respect to
the Trust Securities (a "Declaration Event of Default"), provided that pursuant
to the Declaration, the holder of the Common Securities will be deemed to have
waived any Declaration Event of Default with respect to the Common Securities or
its consequences until all Declaration Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until
such Declaration Events of Default with respect to the Preferred Securities have
been so cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the holders of the Preferred Securities
and only the holders of the Preferred Securities will have the right to direct
the Property Trustee with respect to certain matters under the Declaration, and
therefore under the Indenture.
If the Property Trustee fails to enforce its rights under the Subordinated
Debentures after a holder of Preferred Securities has made a written request,
such holder may institute a legal proceeding against KCPL to enforce the
Property Trustee's rights under the Subordinated Debentures without first
instituting any legal proceeding against the Trustee or any other person or
entity. Notwithstanding the foregoing, if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of KCPL
to pay interest or principal on the Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, the
redemption date), then a holder of Preferred Securities may institute a Direct
Action for enforcement of payment to such holder directly of the principal of,
or interest on, Subordinated Debentures having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder on or
after the respective due date specified in the Subordinated Debentures. In
connection with such Direct Action, KCPL will be subrogated to the rights of
such holder of Preferred Securities under the Declaration to the extent of any
payment made by KCPL to such holder of Preferred Securities in such Direct
Action. The holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Subordinated
Debentures.
Upon the occurrence of a Declaration Event of Default, the Property
Trustee, as the sole holder of the Subordinated Debentures, will have the right
under the Indenture to declare the principal of, and interest on, the
Subordinated Debentures to be immediately due and payable. KCPL and the Trust
are each required to file annually with the Property Trustee an officers'
certificate as to its compliance with all conditions and covenants under the
Declaration.
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VOTING RIGHTS
Except as provided below, under the Trust Act, the Trust Indenture Act and
under "Description of the Preferred Securities Guarantee -- Amendments and
Assignment" in the accompanying Prospectus and as otherwise required by law and
the Declaration, the holders of the Preferred Securities will have no voting
rights. In the event that KCPL elects to defer payments of interest on the
Subordinated Debentures as described above under" -- Distributions," the holders
of the Preferred Securities do not have the right to appoint a special
representative or trustee or otherwise act to protect their interests.
The holders of a majority in aggregate liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or to direct the
exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as the holder
of the Subordinated Debentures, to (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debt Trustee under the
Indenture with respect to the Subordinated Debentures, (ii) waive any past
Indenture Event of Default which is waivable under the Indenture, (iii) exercise
any right to rescind or annul a declaration that the principal of all the
Subordinated Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the Subordinated
Debentures, where such consent shall be required; provided, however, that where
a consent under the Indenture would require the consent of the holders of more
than a majority in principal amount of Subordinated Debentures affected thereby
(a "Super-Majority"), only the holders of at least the proportion in liquidation
amount of the Preferred Securities which the relevant Super-Majority represents
of the aggregate principal amount of the Subordinated Debentures may direct the
Property Trustee to give such consent. If the Property Trustee fails to enforce
its rights under the Declaration, a holder of Preferred Securities may institute
a legal proceeding directly against any person to enforce the Property Trustee's
rights under the Declaration without first instituting any legal proceeding
against the Property Trustee or any other person or entity. The Property
Trustee will notify all holders of the Preferred Securities of any notice of
default received from the Debt Trustee with respect to the Subordinated
Debentures. Such notice will state that such Indenture Event of Default also
constitutes a Declaration Event of Default. The Property Trustee will not take
any action described in clauses (i), (ii), (iii) or (iv) above unless the
Property Trustee has obtained an opinion of independent tax counsel to the
effect that, as a result of such action, the Trust will not be classified as
other than a grantor trust for United States federal income tax purposes.
In the event the consent of the Property Trustee, as the holder of the
Subordinated Debentures, is required under the Indenture for any amendment,
modification or termination of the Indenture, the Property Trustee will request,
and act only in accordance with, the direction of the holders of a majority in
liquidation amount of the Preferred Securities and, if no Declaration Event of
Default has occurred and is continuing, the holders of a majority in liquidation
amount of the Common Securities, voting together as separate classes, provided
that where a consent under the Indenture would require the consent of a Super-
Majority, the Property Trustee may only give such consent at the direction of
the holders of at least the proportion in liquidation amount of the Preferred
Securities and Common Securities, respectively, which the relevant Super-
Majority represents of the aggregate principal amount of the Subordinated
Debentures outstanding. The Property Trustee will not take any such action in
accordance with the directions of the holders of the Trust Securities unless the
Property Trustee has obtained an
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opinion of independent tax counsel to the effect that, as a result of such
action, the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of 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 holders of the Trust Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which holders of 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 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 holder of
Preferred Securities will be required for the Trust to redeem and cancel
Preferred Securities or distribute Subordinated Debentures in accordance with
the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, neither KCPL nor any
entity directly or indirectly controlling or controlled by, or under direct or
indirect common control with, KCPL, will be entitled to vote or consent with
respect to any Preferred Securities which at such time are owned by KCPL or any
such entity, and such Preferred Securities will, for purposes of such vote or
consent, be treated as if they were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "-- Book-entry only Issuance -- The
Depository Trust Company."
Holders of the Preferred Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by KCPL,
as the direct or indirect holder of all the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be amended or modified if approved and executed by a
majority of the Regular Trustees, provided that if any proposed amendment
provides for, or the Regular Trustees otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or special rights of
the Trust Securities, whether by way of amendment to the Declaration or
otherwise or (ii) the dissolution, winding up or termination of the Trust other
than pursuant to the terms of the Declaration, then the holders of the Trust
Securities as a single class will be entitled to vote on such amendment or
proposal and such amendment or proposal will not be effective except with the
approval of the holders of at least 66-2/3 per cent in liquidation amount of the
Trust Securities affected thereby, provided that if any amendment or proposal
referred to in clause (i) above would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal
will not be effective except with the approval of the holders of 66-2/3 per cent
in liquidation amount of such class of Trust Securities.
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Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified as other than a grantor trust, for purposes of United States
federal income tax purposes, (ii) reduce or otherwise adversely affect the
powers of the Property Trustee or (iii) cause the Trust to be deemed to be an
"investment company" which is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may 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 Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the holders of the Trust Securities, the
Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or
into, or be replaced by a trust organized as such under the laws of any State;
provided, that (i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or (y) substitutes
for the Trust Securities other securities having substantially the same terms as
the Trust Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Trust Securities in priority with respect to
distributions and payments upon liquidation, redemption, maturity and otherwise,
(ii) KCPL expressly acknowledges a trustee of such successor entity which
possesses the same powers and duties as the Property Trustee as the holder of
the Subordinated Debentures, (iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, or any national securities exchange or other
organization on which the Preferred Securities are then listed, (iv) such
merger, consolidation, amalgamation or replacement does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the holders of the Trust Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the holders' interest in the new entity), (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation or replacement, KCPL has received an opinion from
independent counsel to the Trust experienced in such matters to the effect that
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the holders' interest in the new entity),
and (B) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) KCPL guarantees the obligations
of such successor entity under the Successor Securities at least to the extent
provided by the Preferred Securities Guarantee. Notwithstanding the foregoing,
the Trust will not, except with the consent of the holders of 100% in
liquidation amount of the Trust Securities, consolidate, amalgamate, merge with
or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the Trust or the
successor entity to be classified for United States federal income tax purposes
as other than a grantor trust.
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BOOK-ENTRY ONLY ISSUANCE - THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Preferred Securities. The 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 Preferred Securities certificates will be
issued, representing in the aggregate the total number of Preferred Securities,
and will be deposited with DTC ("Global Certificates").
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a global Preferred
Security.
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 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,
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 Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
Preferred Securities ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not 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 Preferred Securities.
Transfers of ownership interests in the 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 Preferred securities, except in the event that use
of the book-entry system for the Preferred Securities is discontinued.
To facilitate subsequent transfers, all the Preferred Securities deposited
by Participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of Preferred Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Preferred Securities. DTC's records reflect
only the identity of the Direct Participants to whose accounts such Preferred
Securities are credited, which may or may not be the Beneficial Owners. The
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Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Preferred Securities represented thereby for all
purposes under the Declaration and the Preferred Securities. No beneficial
owner of an interest in a Global Certificate will be able to transfer that
interest except in accordance with DTC's applicable procedures, in addition to
those provided for under the Declaration.
DTC has advised KCPL that it will take any action permitted to be taken by
a holder of Preferred Securities (including the presentation of Preferred
Securities for exchange as described below) only at the direction of one or more
Participants to whose account the DTC interests in the Global Certificates are
credited and only in respect of such portion of the aggregate liquidation amount
of Preferred Securities as to which such Participant or Participants has or have
given such direction. However, if there is a Declaration Event of Default under
the Preferred Securities, DTC will exchange the Global Certificates for
certificated Preferred Securities, which it will distribute to its Participants.
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 will be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC will reduce pro rata the amount of
the interest of each Direct Participant in the Preferred Securities to be
redeemed; provided that if, as a result of such pro rata redemption, Direct
Participants would hold fractional interests in the Preferred Securities, DTC
will adjust the amount of the interest of each Direct Participant to be redeemed
to avoid such fractional interests.
Although voting with respect to the 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 Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the Trust 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 Preferred
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Distribution payments on the 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, as in the case with securities
held for the account of customers in bearer form or registered in "street name,"
and will be the responsibility of such Participant and not of DTC, the Trust,
any trustee or KCPL, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of distributions to DTC is the
responsibility of the Trust, 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.
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Except as provided herein, a Beneficial Owner in a global Preferred
Security will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC, DTC
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither KCPL, the Trust nor
any Trustee will have any responsibility for the performance by DTC or its
Direct Participants or Indirect Participants under the rules and procedures
governing DTC. DTC may discontinue providing its services as securities
depositary with respect to the Preferred Securities at any time by giving
reasonable notice to the Trust. Under such circumstances, in the event that a
successor securities depositary is not obtained, Preferred Securities
certificates are required to be printed and delivered. Additionally, the
Regular Trustees (with the consent of KCPL) may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary) with
respect to the Preferred Securities. In that event, certificates for the
Preferred Securities of such Trust will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that KCPL and the Trust believe to be reliable,
but KCPL and the Trust assume no responsibility for the accuracy thereof.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to the occurrence of a default with respect to
the Trust Securities and after the curing of all such defaults that may have
occurred, undertakes to perform only such duties as are specifically set forth
in the Declaration and, after default, shall exercise the same degree of care as
a prudent individual would exercise in the conduct of his or her own affairs.
Subject to such provisions, the Property Trustee is under no obligation to
exercise any of the powers vested in it by the Declaration at the request of any
holder of Preferred Securities unless offered reasonable indemnity by such
holder against the costs, expenses and liabilities which might be incurred
thereby; but the foregoing shall not relieve the Property Trustee, upon the
occurrence of a Declaration Event of Default, from exercising the rights and
powers vested in it by the Declaration. The Property Trustee also serves as
trustee under the Preferred Securities Guarantee. KCPL and its officers and
directors have no material relationship with the Property Trustee except that
(a) the Property Trustee is a dealer in commercial paper issued by KCPL, (b) the
Property Trustee is trustee and remarketing agent for certain governmental
revenue bonds which are payable with amounts paid by KCPL to the issuer of such
bonds, and (c) KCPL and its principal subsidiary maintain lines of credit with
the Property Trustee.
REGISTRAR AND TRANSFER AGENT
In the event that the Preferred Securities do not remain in book-entry only
form, the Property Trustee will act as paying agent and may designate an
additional or substitute paying agent at any time. Registration of transfers of
Preferred Securities will be effected without charge by or on behalf of the
Trust, but upon payment (with the giving of such indemnity as the Regular
Trustees may require) in respect of any tax or other governmental charges which
may be imposed in relation to it. The Trust will not be required to register or
cause to be registered
S-27
the transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust
in such a way so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act or characterized for United States
Federal income tax purposes as other than a grantor trust. KCPL is authorized
and directed to conduct its affairs so that the Subordinated Debentures will be
treated as indebtedness of KCPL for United States federal income tax purposes.
In this connection, the Regular Trustees and KCPL are authorized to take any
action, not inconsistent with applicable law, or the corporate charter of KCPL,
that each of the Regular Trustees and KCPL determines in their discretion to be
necessary or desirable for such purposes, as long as such action does not
materially and adversely affect the interests of the holders of the Preferred
Securities.
Holders of Preferred Securities will have no preemptive or similar rights.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Pursuant to the Preferred Securities Guarantee, KCPL will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full to the
holders of the Preferred Securities issued by the Trust, the Guarantee Payments
(as defined in the accompanying Prospectus) except to the extent paid by the
Trust, as and when due, regardless of any defense, right of setoff or
counterclaim which the Trust may have or assert. KCPL's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
KCPL to the holders of Preferred Securities or by causing the Trust to pay such
amounts to such holders. The Preferred Securities Guarantee will be qualified
as an indenture under the Trust Indenture Act. The First National Bank of
Chicago will act as Guarantee Trustee. The terms of the Preferred Securities
Guarantee will be those set forth in such Guarantee and those made part of such
Preferred Securities Guarantee by the Trust Indenture Act. The Preferred
Securities Guarantee will be held by the Guarantee Trustee for the benefit of
the holders of the Preferred Securities. A summary description of the Preferred
Securities Guarantee appears in the accompanying Prospectus under the caption
"Description of the Preferred Securities Guarantees."
DESCRIPTION OF THE SUBORDINATED DEBENTURES
Set forth below is a description of the specific terms of the Subordinated
Debentures in which the Trust will invest the proceeds from the issuance and
sale of the Trust Securities. This description supplements the description of
the general terms and provisions of the Subordinated Debentures set forth in the
accompanying Prospectus under the caption "Description of the
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Subordinated Debentures". The following description does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the description in the accompanying Prospectus and the Indenture, dated as of
, between KCPL and The First National Bank of
Chicago, as Trustee (the "Debt Trustee"), as supplemented by a Supplemental
Indenture dated as of (said Indenture, as so
supplemented, is hereinafter referred to as the "Indenture"), the forms of which
are filed as Exhibits to the Registration Statement of which this Prospectus
Supplement and the accompanying Prospectus form a part. Certain capitalized
terms used herein are defined in the Indenture.
KCPL will have the right at any time to liquidate the Trust and cause the
Subordinated Debentures to be distributed to the holders of the Trust
Securities. If the Subordinated Debentures are distributed to the holders of
the Preferred Securities, KCPL will use its best efforts to have the
Subordinated Debentures listed on the New York Stock Exchange or on such other
national securities exchange or similar organization on which the Preferred
Securities are then listed or quoted.
GENERAL
The Subordinated Debentures will be issued as unsecured indebtedness of
KCPL under the Indenture. The Subordinated Debentures will be limited in
aggregate principal amount to approximately $ , such amount being
the sum of the aggregate stated liquidation amount of the Trust Securities.
The Subordinated Debentures are not subject to a sinking fund provision.
The entire principal amount of the Subordinated Debentures will mature and
become due and payable, together with any accrued and unpaid interest thereon
including Compound Interest (as defined herein) and Additional Interest (as
defined herein), if any, on , subject to the right of
KCPL to shorten the maturity date to a date no earlier than .
If Subordinated Debentures are distributed to holders of Preferred
Securities in liquidation of such holders' interests in the Trust, such
Subordinated Debentures will initially be issued as a Global Security (as
defined herein). As described herein, Subordinated Debentures may be issued in
certificated form in exchange for a Global Security. See "Book-Entry and
Settlement" and "The Depositary" below. In the event that Subordinated
Debentures are issued in certificated form, such 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 Subordinated Debentures
issued as a Global Security will be made to DTC, a successor depositary or, in
the event that no depositary is used, to a Paying Agent for the Subordinated
Debentures. In the event Subordinated Debentures are issued in certificated
form, principal and interest will be payable, the transfer of the Subordinated
Debentures will be registrable and Subordinated Debentures will be exchangeable
for Subordinated Debentures of other denominations of a like aggregate principal
amount, at the corporate trust office of the Debt Trustee in New York, New York;
provided, that payment of interest may be made at the option of KCPL by check
mailed to the address of the holder entitled thereto or by wire transfer to an
account appropriately designated by the holder entitled thereto.
Notwithstanding the foregoing, so long as the holder of any Subordinated
Debentures is the Property Trustee, the payment of principal and interest on the
Subordinated Debentures held by the Property Trustee will be made at such place
and to such account as may be designated by the Property Trustee.
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The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving KCPL that may adversely
affect such holders.
SUBORDINATION
The Indenture provides that the Subordinated Debentures are subordinated
and junior in right of payment to all Senior Indebtedness of KCPL, whether now
existing or hereafter incurred. Senior Indebtedness may include Indebtedness of
KCPL which is subordinated to other Indebtedness of KCPL but nevertheless senior
to the Subordinated Debentures. No payment of principal of (including
redemption payments, if any), premium, if any, or interest on, the Subordinated
Debentures may be made if (a) there is a default in the payments of principal,
premium, interest or any other payment due on any Senior Indebtedness, or (b)
the maturity of any Senior Indebtedness has been accelerated because of a
default. Upon any distribution of assets of KCPL 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, premium, if any, and interest due or to become due on, all
Senior Indebtedness must be paid in full before the holders of the Subordinated
Debentures are entitled to receive or retain any payment. The rights of the
holders of the Subordinated Debentures will be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions applicable
to such Senior Indebtedness until all amounts owing on the Subordinated
Debentures are paid in full.
The term "Senior Indebtedness" means (i) any payment in respect of (a)
indebtedness of KCPL for money borrowed and (b) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by KCPL
including, without limitation, indebtedness evidenced by securities issued
pursuant to its General Mortgage Indenture and Deed of Trust dated as of
December 1, 1986, between KCPL and UMB Bank, N.A., as supplemented, and pursuant
to other indentures with various trustees (other than the Indenture); (ii) all
capital lease obligations of KCPL; (iii) all obligations of KCPL issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of KCPL and all of its obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business); (iv) all obligations of KCPL for the reimbursement on any letter
of credit, banker's acceptance, security purchase facility or similar credit
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) above of other Persons for the payment of which KCPL is responsible or
liable as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) above of other Persons secured by any
lien on any property or asset of KCPL (whether or not such obligation is assumed
by KCPL), except for (1) any such indebtedness that is by its terms subordinated
to or PARI PASSU with the Subordinated Debentures, as the case may be, including
all other debt securities and guarantees in respect of those debt securities,
issued to any other trusts, partnerships or other entity affiliated with KCPL
which is a financing vehicle of KCPL in connection with the issuance of
preferred securities by such entity or other securities which rank PARI PASSU
with, or junior to, the Preferred Securities, and (2) any indebtedness between
or among KCPL and its affiliates. Such Senior Indebtedness will continue to be
Senior Indebtedness and be entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.
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The Indenture does not limit the aggregate amount of Senior Indebtedness
which may be issued by KCPL. As of September 30, 1996, Senior Indebtedness of
KCPL aggregated approximately $________ million.
OPTIONAL REDEMPTION
KCPL will have the right to redeem the Subordinated Debentures, in whole or
in part, from time to time, on or after _____________ __, ____, or at any time
in certain circumstances upon the occurrence of a Tax Event as described under
"Description of the Preferred Securities -- Tax Event Redemption" herein, 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. If a
partial redemption of the Preferred Securities resulting from a partial
redemption of the Subordinated Debentures would result in the delisting of the
Preferred Securities, KCPL may only redeem the Subordinated Debentures in whole.
OPTION TO CHANGE MATURITY DATE
KCPL will have the right at any time to shorten the maturity of the
Subordinated Debentures to a date not earlier than _____________ __, ____.
INTEREST
Each Subordinated Debenture will bear interest at the rate of ___% per
annum from the original date of issuance, payable quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date"), commencing ________ __, _____, to the person in whose name such
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest Payment Date.
If the Subordinated Debentures do not continue to remain in book-entry only
form, KCPL will have the right to select record dates which may not be less
than fifteen days prior to each 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. The amount of interest payable for
any period shorter than a full quarterly period will be computed on the basis of
the actual number of days elapsed in such 90-day quarter. In the event that any
date on which interest is payable on the 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 will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
KCPL will have the right at any time, and from time to time, during the
term of the Subordinated Debentures, to defer payments of interest by extending
the interest payment period for a period not exceeding 20 consecutive quarters,
at the end of which Extension Period, KCPL will pay all interest then accrued
and unpaid (including any Additional Interest, together with the interest
thereon compounded quarterly at the rate specified for the Subordinated
Debentures
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to the extent permitted by applicable law); provided, that, during any such
Extension Period, (a) KCPL may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of KCPL common stock in connection with the
satisfaction by KCPL of its obligations under any employee benefit plans or any
other contractual obligation of KCPL (other than a contractual obligation
ranking PARI PASSU with or junior to the Subordinated Debentures), (ii) as a
result of a reclassification of KCPL capital stock or the exchange or conversion
of one class or series of KCPL capital stock for another class or series of KCPL
capital stock or (iii) the purchase of fractional interests in shares of KCPL
capital stock pursuant to the conversion or exchange provisions of such KCPL
capital stock or the security being converted or exchanged), (b) KCPL may not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by KCPL
which rank PARI PASSU with or junior to the Subordinated Debentures to which
such Extension Period applies and (c) KCPL may not make any guarantee payments
with respect to the foregoing (other than pursuant to the Preferred Securities
Guarantee). This covenant effectively requires that any Extension Period with
respect to payment of interest on any series of Subordinated Debentures will
also apply to each other series of subordinated debentures issued under the
Indenture to other trusts similar to the Trust. Prior to the termination of any
such Extension Period, KCPL may further defer payments of interest by extending
the interest payment period, provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all amounts then due,
KCPL may select a new Extension Period, as if no Extension Period had previously
been declared, subject to the above requirements. No interest during an
Extension Period, except at the end thereof, will be due and payable, KCPL has
no present intention of exercising its rights to defer payments of interest by
extending the interest payment period on the Subordinated Debentures. If the
Property Trustee is the sole holder of the Subordinated Debentures, KCPL will
give the Regular Trustees and the Property Trustee notice of its selection of
such Extension Period one Business Day prior to the earlier of (i) the next
succeeding date on which distributions on the Preferred Securities are payable
or (ii) the date the Trust is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities on the record date or the date such distribution is
payable, but in any event not less than one Business Day prior to such record
date. The Regular Trustees will give notice of KCPL's selection of such
Extension Period to the holders of the Preferred Securities. If the Property
Trustee is not the sole holder of the Subordinated Debentures, KCPL will give
the holders of the Subordinated Debentures notice of its selection of such
Extension Period ten Business Days prior to the earlier of (i) the next Interest
Payment Date or (ii) the date KCPL is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
the Subordinated Debentures affected thereby on the record or payment date of
such related interest payment, but in any event at least two Business Days
before such record date.
ADDITIONAL INTEREST
If at any time the Trust is 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, KCPL will pay as additional interest ("Additional Interest") such
additional amounts as shall be required so that the net amounts received and
retained by the Trust after paying any such taxes, duties, assessments or other
governmental
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charges will be equal to the amounts the Trust would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"),
the revenue portion of President Clinton's budget proposal, was released. The
Bill would, among other things, generally deny interest deductions for United
States federal income tax purposes for interest on an instrument, issued by a
corporation, that has a maximum weighted average maturity of more than 40 years.
The Bill would also generally deny interest deductions for interest on an
instrument, issued by a corporation, that has a maximum term of more than 20
years and that is not shown as indebtedness on the separate balance sheet of the
issuer, or where the instrument is issued with a related instrument that is not
shown as indebtedness on the issuer's consolidated balance sheet. The above-
described provisions of the Bill were proposed to be effective generally for
instruments issued on or after December 7, 1995. If either provision were to
apply to the Subordinated Debentures, KCPL would be unable to deduct interest on
the Subordinated Debentures for United States federal income tax purposes.
However, on March 29, 1996, the Chairmen of the Senate Finance and House Ways
and Means Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative proposals, if
adopted, will be no earlier than the date of appropriate Congressional action.
KCPL believes, that, under current law, it will be able to deduct interest on
the Subordinated Debentures. There can be no assurance, however, that current
or future legislative proposals or final legislation will not be enacted which
may affect the ability of KCPL to deduct interest on the Subordinated
Debentures. Such a change could give rise to a Tax Event, which may permit KCPL
to cause a redemption of the Preferred Securities. See "Description of the
Preferred Securities -- Tax Event Redemption or Distribution" in the
accompanying Prospectus. Such a tax law change would not alter the United
States federal income tax consequences of the purchase, ownership and
disposition of Preferred Securities to holders thereof.
INDENTURE EVENTS OF DEFAULT
If any Indenture Event of Default has occured and is continuing, the
Property Trustee, as the holder of the Subordinated Debentures, will have the
right to declare the principal of and the interest on the Subordinated
Debentures (including any Compound Interest and Additional Interest, if any) 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 Subordinated
Debentures. See "Description of Subordinated Debentures -- Indenture Events of
Default" in the accompanying Prospectus for a description of Indenture Events of
Default. An Indenture Event of Default also constitutes a Declaration Event of
Default. The holders of Preferred Securities in certain circumstances have the
right to direct the Property Trustee to exercise its rights as a holder of
Subordinated Debentures. See "Description of the Preferred Securities --
Declaration Events of Default" and "Voting Rights." Notwithstanding the
foregoing, if an Indenture Event of Default has occurred and is continuing and
is attributable to the failure of KCPL to pay interest or principal on the
Subordinated Debentures on the date such interest or principal is otherwise
payable, KCPL acknowledges that a holder of Preferred Securities may then
institute a Direct Action for payment on or after the respective due date
specified in the Subordinated Debentures. Notwithstanding any payments made to
such holder of Preferred Securities by KCPL in connection with a Direct Action,
KCPL will remain obligated to pay the principal of or interest on the
Subordinated Debentures held by the Trust or the Property Trustee, and KCPL
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will be subrogated to the rights of the holder of such Preferred Securities with
respect to payments on the Preferred Securities to the extent of any payments
made by KCPL to such holder in any Direct Action. The holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of Subordinated Debentures.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Preferred Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of the Trust,
the Subordinated Debentures will be issued in the form of one or more global
certificates (each a "Global Security") registered in the name of the depositary
or its nominee. Except under the limited circumstances described below,
Subordinated Debentures represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Subordinated Debentures
in definitive form. The Global Securities described above may not be
transferred except by the depositary to a nominee of the depositary or by a
nominee of the depositary to the depositary or another nominee of the depositary
or to a successor depositary 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 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 Subordinated Debentures will be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. Accordingly, each beneficial owner must rely on the procedures of the
Depositary or, 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 of Subordinated Debentures under the Indenture.
THE DEPOSITARY
If Subordinated Debentures are distributed to holders of Preferred
Securities in liquidation of such holders' interests in the Trust, DTC will act
as securities depositary for the Subordinated Debentures. For a description of
DTC and the specific terms of the depositary arrangements, see "Description of
the 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 Preferred Securities apply
in all material respects to any Subordinated Debentures represented by one or
more Global Securities. KCPL may appoint a successor to DTC or any successor
depositary in the event DTC or such successor depositary is unable or unwilling
to continue as a depositary for the Global Securities.
None of KCPL, the Trust, the Property Trustee, any paying agent or any
other agent of KCPL or the Debt 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 Subordinated
Debentures or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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A Global Security will be exchangeable for Subordinated Debentures
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies KCPL that it is unwilling or unable to continue
as a depositary for such Global Security and no successor depositary shall have
been appointed, (ii) the Depositary, at any time, ceases to be a clearing agency
registered under the Exchange Act at which time the Depositary is required to be
so registered to act as such depositary and no successor depositary shall have
been appointed, (iii) KCPL, in its sole discretion, determines that such Global
Security will be so exchangeable or (iv) there has occurred an Indenture Event
of Default with respect to such Subordinated Debentures. Any Global Security
that is exchangeable pursuant to the preceding sentence will be exchangeable for
Subordinated Debentures registered in such names as the Depositary shall direct.
It is expected that such instructions will be based upon directions received by
the Depositary from its Participants with respect to ownership of beneficial
interests in such Global Security.
If the Subordinated Debentures are not represented by one or more
Global Securities, certificates evidencing the 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 KCPL for such purpose with
respect to the Subordinated Debentures, without service charge and upon payment
of any taxes and other governmental charges as described in the 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. KCPL has appointed the Debt
Trustee as Debenture Registrar with respect to the Subordinated Debentures.
KCPL 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 KCPL will be required to maintain a transfer agent at the place of
payment. KCPL may at any time designate additional transfer agents with respect
to the Subordinated Debentures.
In the event of any redemption of only a part of the Subordinated
Debentures, KCPL will not be required to (i) issue, exchange or register the
transfer of Subordinated Debentures during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of less
than all of the Subordinated Debentures and ending at the close of business on
the date of such mailing and (ii) register the transfer of or exchange any
Subordinated Debentures so selected for redemption, in whole or in part, except
the unredeemed portion of any Subordinated Debentures being redeemed in part.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by, and
construed in accordance with, the internal laws of the State of New York.
MISCELLANEOUS
The Indenture will provide that KCPL will pay all fees and expenses related
to (i) the offering of the Trust Securities and the Subordinated Debentures,
(ii) the organization, maintenance and dissolution of the Trust, (iii) the
retention of the Trustees and (iv) the enforcement by the Property Trustee of
the rights of the holders of the Preferred Securities. The payment of such fees
and expenses will be fully and unconditionally guaranteed by KCPL.
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KCPL will have the right at all times to assign any of its respective
rights or obligations under the Indenture to a direct or indirectly wholly-owned
subsidiary of KCPL; provided that, in the event of any such assignment, KCPL
will remain liable for all of such obligations. Subject to the foregoing, the
Indenture will be binding upon and inure to the benefit of the parties thereto
and their respective successors and assigns. The Indenture provides that it may
not otherwise be assigned by the parties thereto.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBENTURES
AND THE PREFERRED SECURITIES GUARANTEE
As set forth in the Declaration, the sole purposes of the Trust are to (i)
issue Trust Securities, (ii) invest the proceeds thereof in the Subordinated
Debentures and (iii) engage in only those other activities necessary or
incidental thereto.
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover distributions
and payments due on the Trust Securities primarily because (i) the aggregate
principal amount of Subordinated Debentures will be equal to the sum of the
aggregate stated liquidation amount of the Trust Securities; (ii) the interest
rate and interest and other payment dates on the Subordinated Debentures will
match the distribution rate and distribution and other payment dates for the
Preferred Securities; (iii) KCPL will pay for all costs and expenses of the
Trust; and (iv) the Declaration provides that the Trustees may not cause or
permit the Trust to, among other things, engage in any activity that is not
consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor are
available) are guaranteed by KCPL as and to the extent set forth under
"Description of the Preferred Securities Guarantee" in the accompanying
Prospectus. If KCPL does not make interest payments on the Subordinated
Debentures purchased by the Trust, it is expected that the Trust will not have
sufficient funds to pay distributions on the Preferred Securities. The
Preferred Securities Guarantee is a full and unconditional guarantee from the
time of its issuance, but does not apply to any payment of distributions unless
and until the Trust has sufficient funds for the payment of such distributions.
If KCPL fails to make interest or other payments on the Subordinated
Debentures when due (taking into account any Extension Period), the Declaration
provides a mechanism whereby the holders of the Preferred Securities, using the
procedures described in "Description of the Preferred Securities -- Voting
Rights" in this Prospectus Supplement, may direct the Property Trustee to
enforce its rights under the Subordinated Debentures, including proceeding
directly against KCPL to enforce the Subordinated Debentures. If the Property
Trustee fails to enforce its rights under the Subordinated Debentures, a holder
of Preferred Securities may, after a period of 30 days has elapsed from such
holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against KCPL to enforce the Property
Trustee's rights under the Subordinated Debentures without first instituting any
legal proceeding against the Property Trustee or any other person or entity,
including the Trust.
If KCPL fails to make payments under the Preferred Securities Guarantee,
the Preferred Securities Guarantee provides a mechanism whereby the holders of
the Preferred Securities may direct the Guarantee Trustee to enforce its rights
thereunder. If the Guarantee Trustee fails to
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enforce the Preferred Securities Guarantee, any holder of Preferred Securities
affected thereby may institute a legal proceeding directly against KCPL to
enforce the Guarantee Trustee's rights under the Preferred Securities Guarantee,
without first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity.
The above mechanisms and obligations, taken together, are equivalent to a
full and unconditional guarantee by KCPL of payments due on the Preferred
Securities. See "Description of the Preferred Securities Guarantees -- General"
in the accompanying Prospectus.
UNITED STATES FEDERAL INCOME TAXATION
The following is a summary of certain of the material United States federal
income tax consequences of the purchase, ownership and disposition of Preferred
Securities. Unless otherwise stated, this summary deals only with Preferred
Securities held as capital assets by holders that purchase the Preferred
Securities upon original issuance. This summary does not address all the tax
consequences that may be relevant to holders that may be subject to special tax
treatment such as, for example, banks, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or currencies,
tax-exempt investors, persons whose functional currency is other than the United
States dollar, persons who hold Preferred Securities as part of a straddle,
hedging or conversion transaction or, except as specifically described herein,
foreign taxpayers. In addition, this summary does not address any aspects of
state, local, or foreign laws. This summary is based on the Internal Revenue
Code of 1986, as amended, Treasury regulations promulgated thereunder and
administrative and judicial interpretations thereof, as of the date hereof, all
of which are subject to change, possibly on a retroactive basis. Each holder
should consult its tax advisor as to its particular tax consequences of
acquiring, holding, and disposing of the Preferred Securities, including the tax
consequences under state, local, and foreign laws.
CLASSIFICATION OF THE SUBORDINATED DEBENTURES
It is a condition to the issuance of the Preferred Securities that Sidley &
Austin render its opinion generally to the effect that, under then current
United States federal income tax law and assuming full compliance with the terms
of the Indenture (and certain other documents), and based on certain facts and
assumptions contained in such opinion, the Subordinated Debentures held by the
Trust will be classified for United States federal income tax purposes as
indebtedness of KCPL. Accordingly, corporate holders of Preferred Securities
will not be entitled to a dividends-received deduction with respect to any
income recognized with respect to the Preferred Securities.
CLASSIFICATION OF THE TRUST
It is a condition to the issuance of the Preferred Securities that Sidley &
Austin render its opinion generally to the effect that, under then current
United States federal income tax law and assuming full compliance with the terms
of the Declaration and the Indenture (and certain other documents), and based on
certain facts and assumptions contained in such opinion, the Trust will be
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation. Accordingly, for United States
federal income tax purposes, each holder of Preferred Securities will generally
be considered the owner of an undivided interest in the Subordinated Debentures,
and each holder will be required to include
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in its gross income any interest or original issue discount ("OID") accrued with
respect to its allocable share of those Subordinated Debentures. Investors
should be aware that the foregoing opinions of Sidley & Austin have not been
confirmed by the Internal Revenue Service (the "Service"), by private ruling or
otherwise, and are not binding on the Service or the courts.
KCPL, the Trust, and, by its acceptance of a Preferred Security or a
beneficial interest therein, the holder of, and any person that acquires a
beneficial interest in, such Preferred Security agree to treat such Preferred
Security and the Subordinated Debentures consistently with the foregoing
opinions.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Unless the Subordinated Debentures are issued with OID, stated interest on
the Subordinated Debentures will be taxable to a holder as ordinary income at
the time such interest is paid (if the holder uses the cash method of accounting
for tax purposes) or accrued (if the holder uses the accrual method of
accounting for tax purposes). Under regulations of the U.S. Treasury
Department, the Subordinated Debentures will not be considered issued with OID
if the likelihood of KCPL exercising its right to defer interest (as described
under "Description of the Subordinated Debentures--Option to Extend Interest
Payment Period") is considered a "remote" contingency at the time the
Subordinated Debentures are issued. KCPL believes that such likelihood is
remote, because exercise of its right to defer interest would prevent KCPL from
declaring dividends on its capital stock. Accordingly, KCPL intends to take the
position that the Subordinated Debentures will not be issued with OID. However,
the definition of the term "remote" in the regulations has not yet been
addressed in any rulings or other interpretations by the Service, and it is
possible that the Service would assert that the Subordinated Debentures were
issued with OID. Assuming the Subordinated Debentures continue to remain in
book-entry only form, a determination that the Subordinated Debentures were
issued with OID would not result in substantially different United States
federal income tax consequences to accrual method taxpayers or to cash-method
taxpayers whose taxable year is the calendar year. Holders not described in the
preceding sentence, if any, would recognize the acceleration of up to three
months' interest income.
If, notwithstanding KCPL's current belief, it does exercise its right to
defer interest payments, the Subordinated Debentures would be treated as if they
were retired and then reissued with OID at such time. In such case, the amount
of OID would generally be equal to the interest payable thereafter.
If the Subordinated Debentures are treated as having been issued or
reissued with OID (either because KCPL exercises its right to defer interest
payments or because the likelihood of exercise of such right is not considered a
remote contingency at the time of issuance), holders would include that interest
in income on an economic accrual basis, regardless of their method of tax
accounting. The amount of OID that accrued in any quarter would approximately
equal the amount of interest that accrued on the Subordinated Debentures in that
quarter at the stated interest rate. If interest payments were received later
than the taxable year in which the interest accrued, OID treatment would have
the effect of accelerating the reporting of income for holders who otherwise use
a cash method of tax reporting.
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MARKET DISCOUNT AND PREMIUM
Holders of Preferred Securities other than holders that purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interest in the Subordinated Debentures with market discount,
amortizable bond premium or acquisition premium as such terms are defined for
United States federal income tax purposes. Such holders are advised to consult
their tax advisors as to the income tax consequences of the acquisition,
ownership and disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUST
Under certain circumstances, as described under the caption "Description of
the Preferred Securities -- Dissolution; Distribution of Subordinated
Debentures," Subordinated Debentures may be distributed to holders in exchange
for Preferred Securities and in liquidation of the Trust. Under current United
States federal income tax law, such a redemption would be treated as a non-
taxable event to each holder, and each holder would have an aggregate tax basis
in the Subordinated Debentures equal to such holder's aggregate tax basis in its
Preferred Securities. A holder's holding period in the Subordinated Debentures
so received in liquidation of the Trust would include the period during which
the Preferred Securities were held by such holder.
Under certain circumstances, as described under the captions "Description
of the Preferred Securities--Redemption," "Description of the Preferred
Securities--Tax Event Redemption," and "Description of the Subordinated
Debentures--Optional Redemption," the Subordinated Debentures may be redeemed
for cash and the proceeds of such redemption distributed to holders in
redemption of their Preferred Securities. Under current United States federal
income tax law, such a redemption would be a taxable event, and a holder would
recognize gain or loss as if such holder sold such redeemed Preferred Securities
for cash. See "Sales of Preferred Securities" below.
SALES OF PREFERRED SECURITIES
A holder that sells Preferred Securities will recognize gain or loss equal
to the difference between such holder's adjusted tax basis in the Preferred
Securities and the amount realized on the sale of such Preferred Securities
(other than with respect to accrued and unpaid interest which has not yet been
included in income, which will be treated as ordinary income). A holder's
adjusted tax basis in the Preferred Securities will generally be the initial
purchase price increased by OID (if any) previously includible in such holder's
gross income to the date of disposition and decreased by payments received on
the Preferred Securities. Such gain or loss will generally be a capital gain or
loss and will generally be a long-term capital gain or loss if the Preferred
Securities have been held for more than one year.
The Preferred Securities may trade at prices that do not accurately reflect
the value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder who uses the accrual method of accounting for
tax purposes (and a cash method holder if the Subordinated Debentures are deemed
to have been issued with OID) and that disposes of Preferred Securities between
record dates for payments of distributions thereon will be required to include
accrued but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income, and to add such amount to such
holder's adjusted tax basis in the pro rata share of the underlying Subordinated
Debentures deemed disposed of. To
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the extent that the selling price is less than the holder's adjusted tax basis
(so determined) a holder will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is, as to the United
States, a foreign corporation, a nonresident alien individual, a foreign
partnership, or a foreign estate or trust. This discussion assumes that income
with respect to the Preferred Securities is not effectively connected with a
trade or business in the United States in which the United States Alien Holder
is engaged.
Under current United States federal income tax law, and subject to the
discussion of backup withholding in the following section: (1) payments with
respect to principal and interest (including any OID) by the Trust or any of its
paying agents to any holder of a Preferred Security that is a United States
Alien Holder will not be subject to withholding of United States federal income
tax; provided that, in the case of interest, (a) the beneficial owner of the
Preferred Security does not actually or constructively own 10% of more of the
total combined voting power of all classes of stock of KCPL entitled to vote,
(b) the beneficial owner of the Preferred Security is not a controlled foreign
corporation that is related, directly or indirectly, to KCPL through stock
ownership, and (c) either (A) the beneficial owner of the Preferred Security
certifies to the Trust or its agent, under penalties of perjury, that it is a
United States Alien Holder and provides its name and address or (B) a securities
clearing organization, bank or other financial institution that holds customer'
securities in the ordinary course of its trade or business (a "Financial
Institution"), and holds the Preferred Securities in such capacity, certifies to
the Trust or its agent, under penalties or 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 the Trust or its agent with a copy
thereof, and (2) a United States Alien Holder of a Preferred Security will
generally not be subject to withholding of United States federal income tax on
any gain realized upon the sale or other disposition of a Preferred Security.
On April 15, 1996, proposed Treasury Regulations (the "1996 Proposed
Regulations") were issued which, if adopted in final form, could affect the
United States taxation of United States Alien Holders. The 1996 Proposed
Regulations are generally proposed to be effective for payments after December
31, 1997, regardless of the issue date of the instrument with respect to which
such payments are made, subject to certain transition rules. It cannot be
predicted at this time whether the 1996 Proposed Regulations will become
effective as proposed or what, if any, modifications may be made to them.
Prospective investors are urged to consult their tax advisors with respect to
the effect the 1996 Proposed Regulations may have if adopted.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
Under current United States federal income tax law, information reporting
requirements apply to interest (including OID) and principal payments made to,
and to the proceeds of sales before maturity by, certain non-corporate persons.
In addition, a 31% backup withholding tax applies if a non-corporate person (i)
fails to furnish such person's Taxpayer Identification Number ("TIN") (which,
for an individual, would be his or her Social Security Number) to the payor in
the manner required, (ii) furnishes an incorrect TIN and the payor is so
notified by the Service, (iii) is notified by the Service that such person has
failed properly to report payments
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of interest and dividends or (iv) in certain circumstances, fails to certify,
under penalties of perjury, that such person has not been notified by the
Service that such person is subject to backup withholding for failure properly
to report interest and dividend payments. Backup withholding does not apply
with respect to payments made to certain exempt recipients, such as corporations
and tax-exempt organizations.
In the case of a United States Alien Holder, backup withholding and
information reporting do not apply to payments of principal and interest with
respect to a Preferred Security with respect to which such Holder has provided
the required certification under penalties of perjury that such Holder is a
United States Alien Holder or has otherwise established an exemption, provided
that certain conditions are satisfied.
In general, (i) principal or interest payments with respect to a Preferred
Security collected outside the United States by a foreign office of a custodian,
nominee or other agent acting on behalf of a beneficial owner of a Preferred
Security and (ii) payments on the sale, exchange or retirement of a Preferred
Security to or through a foreign office of a broker are not subject to backup
withholding or information reporting. However, if such custodian, nominee,
agent or broker is a United States person, a controlled foreign corporation for
United States tax purposes, or a foreign person 50% of more of whose gross
income is effectively connected with the conduct of a United States trade or
business for a specified three-year period, such custodian, nominee, agent or
broker may be subject to certain information reporting (but not backup
withholding) requirements with respect to such payments.
Backup withholding tax is not an additional tax. Rather, any amounts
withheld from a payment to a person under the backup withholding rules are
allowed as a refund or a credit against such person's United States federal
income tax, provided that the required information is furnished to the Service.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"),
the revenue portion of President Clinton's budget proposal, was released. The
Bill would, among other things, generally deny interest deductions for United
States federal income tax purposes for interest on an instrument, issued by a
corporation, that has a maximum weighted average maturity of more than 40 years.
The Bill would also generally deny interest deductions for interest on an
instrument, issued by a corporation, that has a maximum term of more than 20
years and that is not shown as indebtedness on the separate balance sheet of the
issuer, or where the instrument is issued with a related instrument that is not
shown as indebtedness on the issuer's consolidated balance sheet. The above-
described provisions of the Bill proposed were to be effective generally for
instruments issued on or after December 7, 1995. If either provision were to
apply to the Subordinated Debentures, KCPL would be unable to deduct interest on
the Subordinated Debentures for United States federal income tax purposes.
However, on March 29, 1996, the Chairmen of the Senate Finance and House Ways
and Means Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative proposals, if
adopted, will be no earlier than the date of appropriate Congressional action.
KCPL believes that, under current law, it will be able to deduct interest on the
Subordinated Debentures. There can be no assurance, however, that current or
future legislative proposals or final legislation will not be adopted which may
affect the ability of KCPL to deduct interest on the Subordinated Debentures.
Such a change could give rise to a Tax Event, which
S-41
may permit KCPL to cause a redemption of the Preferred Securities. See
"Description of the Preferred Securities -- Tax Event Redemption." Such a tax
law change would not alter the United States federal income tax consequences of
the purchase, ownership and disposition of Preferred Securities to holders
thereof.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
S-42
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"Purchase Agreement"), the Trust has agreed to sell to each of the Underwriters
named below, and each of the Underwriters, for whom Merrill Lynch, Pierce,
Fenner & Smith Incorporated are acting as representative (the "Representative"),
has severally agreed to purchase the number of Preferred Securities set forth
opposite its name below. In the Purchase Agreement, the several Underwriters
have agreed, subject to the terms and conditions set forth therein, to purchase
all the Preferred Securities offered hereby if any of the Preferred Securities
are purchased. In the event of default by an Underwriter, the Purchase
Agreement provides that, in certain circumstances, the purchase commitments of
the non-defaulting Underwriters may be increased or the Purchase Agreement may
be terminated.
NUMBER OF PREFERRED
UNDERWRITERS SECURITIES
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .....................................
---------------------
---------------------
The Underwriters propose to offer the 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 Preferred Security. The
Underwriters may allow, and such dealers may reallow, a concession not in excess
of $ per Preferred Security to certain brokers and dealers. After the
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 Representative.
In view of the fact that the proceeds of the sale of the Preferred
Securities will ultimately be used to purchase the Subordinated Debentures of
KCPL, the Purchase Agreement provides that KCPL will pay as compensation
("Underwriters' Compensation") to the Underwriters arranging the investment
therein of such proceeds, an amount in immediately available funds of $
per Preferred Security (or $ in the aggregate) for the accounts of the
several Underwriters; provided that, such compensation for sales of 10,000 or
more Preferred Securities to any single purchaser will be $ per Preferred
Security. Therefore, to the extent of such sales, the actual amount of
Underwriters' Compensation will be less than the aggregate amount specified in
the preceding sentence.
During a period of 30 days from the date of this Prospectus Supplement,
neither the Trust nor KCPL will, without the prior written consent of the
Representative, directly or indirectly, sell, offer to sell, grant any option
for sale of, or otherwise dispose of, any Preferred Securities, any security
convertible into or exchangeable into or exercisable for Preferred Securities or
S-43
Subordinated Debentures or any debt securities substantially similar to the
Subordinated Debentures or equity securities substantially similar to the
Preferred Securities (except for the Subordinated Debentures and the Preferred
Securities offered hereby).
Application has been made to list the Preferred Securities on the New York
Stock Exchange. If so approved, trading of the Preferred Securities on the New
York Stock Exchange is expected to commence within a 30-day period after the
initial delivery of the Preferred Securities. The Representative has advised
the Trust that it intends to make a market in the Preferred Securities prior to
the commencement of trading on the New York Stock Exchange. The Representatives
will have no obligation to make a market in the Preferred Securities, however,
and may cease market making activities, if commenced, at any time.
Prior to this offering there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the Preferred
Securities on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Preferred Securities to a minimum of 400 beneficial
holders.
The Trust and KCPL have agreed to indemnify the Underwriters against, or
contribute to payments that the Underwriters may be required to make in respect
of, certain liabilities, including liabilities under the Securities Act of 1933,
as amended.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, KCPL and its subsidiaries in the ordinary
course of business.
S-44
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 shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sales 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.
SUBJECT TO COMPLETION, DATED DECEMBER __, 1996
KCPL FINANCING I
KCPL FINANCING II
KCPL FINANCING III
PREFERRED SECURITIES
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
KANSAS CITY POWER & LIGHT COMPANY
--------------------
KCPL Financing I, KCPL Financing II, and KCPL Financing III, each a
statutory business trust formed under the laws of the State of Delaware (each, a
"Trust" and, collectively, the "Trusts") may severally offer, from time to time,
their respective preferred securities (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of each Trust. Kansas
City Power & Light Company, a Missouri corporation ("KCPL"), will be the sole
owner of the undivided common beneficial interests in such assets represented by
common securities (the "Common Securities", together with the Preferred
Securities herein referred to as the "Trust Securities") of each Trust. The
payment of periodic cash distributions ("distributions") with respect to the
Preferred Securities and payments on liquidation or redemption with respect to
such Preferred Securities will be each guaranteed by KCPL in the case of each
Trust (a "Preferred Guarantee"), in each case only out of funds held by such
Trust. KCPL's obligations under the Preferred Security Guarantee will be
subordinate and junior in right of payment to all other liabilities of KCPL and
will rank PARI PASSU with the most senior preferred stock issued by KCPL.
Concurrently with the issuance by a Trust of its Preferred Securities, such
Trust will invest the proceeds thereof in KCPL's junior subordinated deferrable
interest debentures (the "Subordinated Debentures") having terms corresponding
to such Trust's Preferred Securities. The Subordinated Debentures will be
unsecured and subordinated indebtedness of KCPL issued under an indenture dated
as of __________, 199_ between the Company and The First National Bank of
Chicago, as Trustee (such indenture, as the same may be supplemented or amended
from time to time, herein referred to as the "Indenture"). The Subordinated
Debentures held by each Trust will be its sole assets, and the payments of
principal of and interest on such Subordinated Debentures will be its only
revenues. The Subordinated Debentures purchased by a Trust may be subsequently
distributed pro rata to holders of Preferred Securities and Common Securities in
connection with the dissolution of such Trust. In addition, upon the
occurrence of certain events, KCPL may redeem the Subordinated Debentures and
cause the redemption of the Preferred Securities.
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 issued pursuant to the
Registration Statement of which this Prospectus forms a part will not exceed
$300,000,000. Certain specific terms of each Trust's Preferred Securities in
respect of which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement, including, where applicable and to the
extent not set forth herein, the identity of the Trust, the specific title, the
aggregate amount, the distribution rate (or the method for determining such
rate), the stated liquidation amount, redemption provisions, other rights, the
initial public offering price and any other special terms, as well as any
planned listing on a securities exchange, of such Preferred Securities.
The Preferred Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. See "Plan of
Distribution." The names of any of the underwriters or dealers involved in the
sale of the Preferred Securities in respect of which this Prospectus is being
delivered, the number of Preferred Securities to be purchased by any such
underwriters or dealers, any applicable commissions or discounts and the net
proceeds to each Trust will be set forth in the applicable Prospectus
Supplement.
Each Prospectus Supplement will also contain information concerning certain
United States federal income tax considerations applicable to the Preferred
Securities offered thereby.
-------------------------
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 date of this Prospectus is ___________, 199_.
AVAILABLE INFORMATION
KCPL 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"). KCPL and the Trusts have
filed with the Commission a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the Preferred Securities offered hereby and
certain related securities. This Prospectus does not contain all of the
information set forth in the Registration Statement and reference is hereby made
to the Registration Statement and the exhibits thereto for further information
with respect to KCPL and the Preferred Securities offered hereby. Such
reports, proxy statements, Registration Statement and exhibits and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at its Northeast Regional Office located at 7 World Trade
Center, Suite 1300, New York, New York 10048 and Midwest Regional Office located
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549. KCPL is subject to the electronic filing requirements of the
Commission. Accordingly, pursuant to the rules and regulations of the
Commission, certain documents, including annual and quarterly reports and proxy
statements, filed by KCPL with the Commission have been filed electronically.
The Commission also maintains a World Wide Web site that contains reports, proxy
and information statements and other information regarding registrants
(including KCPL) that file electronically with the Commission at (http://
www.sec.gov). Certain of KCPL's securities are listed on the New York Stock
Exchange and such reports, proxy statements and other information may also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
No separate financial statements of the Trusts are included herein.
KCPL considers that such financial statements would not be material to holders
of the Preferred Securities because: (i) all of the Common Securities of the
Trusts are owned by KCPL, a reporting company under the Exchange Act; (ii) the
Trusts have no independent operations; but exist for the sole purpose of issuing
the Trust Securities and holding the Subordinated Debentures as trust assets;
and (iii) the obligations of the Trusts under the Preferred Securities, to the
extent funds are available therefor, are fully and unconditionally guaranteed to
the extent set forth herein by KCPL.
The Trusts are not currently subject to the information reporting
requirements of the Exchange Act. The Trusts will become subject to such
requirements upon the effectiveness of the Registration Statement, although they
intend to seek and expect to receive exemptions therefrom.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report of KCPL on Form 10-K, as amended, for the year ended
December 31, 1995, the Quarterly Reports of KCPL on Form 10-Q for the periods
ended March 31, 1996, June 30, 1996 and September 30, 1996, and the Current
Reports of KCPL on Form 8-K dated May 22, 1996, May 28, 1996, and September 19,
1996, are incorporated by reference into this Prospectus. All documents filed
by KCPL pursuant to Sections 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 the
2
offering of the Preferred Securities contemplated hereby shall be deemed to be
incorporated by reference into this Prospectus and to be made a part hereof from
the respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, in the
applicable Prospectus Supplement or in any subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
KCPL hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, including any beneficial
owner, upon 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 certain exhibits to such documents.
Requests should be directed to Corporate Secretary, Kansas City Power & Light
Company, 1201 Walnut, Kansas City, Missouri 64106-2124 (Telephone: (816) 556-
2053).
KANSAS CITY POWER & LIGHT COMPANY
Kansas City Power & Light Company, a Missouri corporation, is a
medium-size electric utility, headquartered in downtown Kansas City, which
generates and distributes electricity to over 430,000 customers in a 4,700-
square mile area located in 23 counties in western Missouri and eastern Kansas.
Customers include 380,000 residences, 50,000 commercial firms, and over 3,000
industries, municipalities and other electric utilities. About two-thirds of
total Kwh sales and revenue are from Missouri customers and the remainder from
Kansas customers. The address of its principal executive office is 1201 Walnut,
Kansas City, Missouri 64106-2124 (Telephone: (816) 556-2200).
THE TRUSTS
Each of the Trusts is a statutory business trust formed under Delaware
law pursuant to the filing of a certificate of trust with the Delaware Secretary
of State on December __, 1996. The business of each Trust is defined in a
Declaration of Trust, executed by KCPL as sponsor (the "Sponsor"), and the
Trustees (as defined herein). The Declaration of Trust of each Trust will be
amended and restated in its entirety (as so amended and restated, the
"Declaration") substantially in the form filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The Declaration will be
qualified as an indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). Upon issuance of the Preferred Securities, the
purchasers thereof will own all of the Preferred Securities. KCPL will acquire
all of the Common Securities in an aggregate liquidation amount equal to
approximately 3% of the total capital of each Trust. Each Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds of the Trust Securities in the Subordinated Debentures and (iii)
engaging in only those other activities necessary or incidental thereto. Each
Trust has a term of approximately 45 years, but may terminate earlier as
provided in the applicable Declaration.
Each Trust's business and affairs will be conducted by the trustees
(the "Trustees") appointed by KCPL, as holder of the Common Securities. The
duties and obligations of the
3
Trustees will be governed by the Declaration. Pursuant to the Declaration, the
number of Trustees will initially be four. Two of the Trustees (the "Regular
Trustees") will be persons who are employees or officers of or affiliated with,
KCPL. The third Trustee will be a corporation which maintains a principal place
of business in the State of Delaware that will serve for the sole purpose of
complying with certain Delaware laws (the "Delaware Trustee"). The fourth
Trustee will be a financial institution unaffiliated with KCPL which will serve
as property trustee under the Declaration and as indenture trustee for purposes
of the Trust Indenture Act (the "Property Trustee"). First Chicago Delaware
Inc. ("First Chicago Delaware") will act as the Delaware Trustee and The First
National Bank of Chicago will act as the Property Trustee, in each case until
removed or replaced by the holder of the Common Securities. The First National
Bank of Chicago will also act as indenture trustee under the Preferred
Securities Guarantee (the "Guarantee Trustee"). See "Description of the
Preferred Securities Guarantee."
The Property Trustee will hold title to the Subordinated Debentures
held by each Trust for the benefit of the holders of the Trust Securities issued
by such Trust and will have the power to exercise all rights, powers and
privileges under the Indenture (as defined herein) as the holder of such
Subordinated Debentures. In addition, the Property Trustee will maintain
exclusive control of a segregated non-interest bearing bank account for each
Trust (the "Property Account") to hold all payments made in respect of the
Subordinated Debentures held by such Trust for the benefit of the holders of the
Trust Securities issued by such Trust. The Property Trustee will make payments
of distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities issued by each Trust out of funds from the
Property Account of such Trust. The Guarantee Trustee will hold each Preferred
Securities Guarantee for the benefit of the holders of the Preferred Securities.
KCPL, as the holder of all the Common Securities, will have the right to
appoint, remove or replace any Trustee and to increase the number of Trustees,
provided that the number of Trustees will be at least four, two of which will be
Regular Trustees. KCPL will pay all fees and expenses related to the Trust, the
offering of the Preferred Securities and the issuance of the Subordinated
Debentures. See "Description of the Subordinated Debentures -- Miscellaneous."
The rights of the holders of the Preferred Securities of each Trust,
including economic rights, rights to information and voting rights, are as set
forth in the Declaration for such Trust, the Delaware Business Trust Act, as
amended (the "Trust Act"), and the Trust Indenture Act. See "Description of the
Preferred Securities."
The Property Trustee for each Trust is The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
The principal place of business of each Trust shall be c/o Kansas City Power &
Light Company, 1201 Walnut, Kansas City, Missouri 64106-2124 (telephone number
816/556-2200).
Copies of the above documents (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge from
KCPL, 1201 Walnut, Kansas City, Missouri 64106-2124 (telephone number 816/556-
2200).
4
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
FIXED CHARGES AND PREFERRED DIVIDEND REQUIREMENTS
Year Ended December 31,
Twleve Months Ended ----------------------------------------------
September 30, 1996 1995 1994 1993 1992 1991
------------------- ----------------------------------------------
(Thousands)
Ratio of earnings to fixed charges 3.37 3.94 4.07 3.80 3.12 3.22
------------------- ---------------------------------------------
Ratio of earnings to combined fixed
charges and preferred dividend
requirements 3.12 3.59 3.69 3.51 2.90 2.85
------------------- ---------------------------------------------
(1) For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of net income plus interest charges, income taxes and
the estimated interest component of rents. "Fixed charges" consists of
interest charges and the estimated interest component of rents.
(2) For the purpose of computing the ratio of earnings to fixed charges plus
preferred dividend requirements, "earnings" consist of net income plus
interest charges, income taxes and the estimated interest component of
leased property. "Fixed charges" consists of interest charges and the
estimated interest component of leased property. "Preferred dividend
requirements" consists of the calculated pre-tax preferred dividend
requirement.
USE OF PROCEEDS
Each Trust will use the proceeds of the sale of the Trust Securities
to acquire Subordinated Debentures from KCPL. Unless otherwise indicated in the
applicable Prospectus Supplement, KCPL intends to add the net proceeds from the
sale of the Subordinated Debentures to the general funds of KCPL for use for
corporate purposes, which may include capital expenditures, acquisitions,
refinancing or repurchase of outstanding long-term debt, preferred and common
securities, investments in subsidiaries, and repayment of short-term debt and
other business opportunities.
DESCRIPTION OF THE PREFERRED SECURITIES
The Declaration of each Trust authorizes the Regular Trustees of such
Trust to issue on behalf of such Trust only one series of Preferred Securities
having terms described in the Prospectus Supplement relating thereto. The
Declaration will be qualified as an indenture under the Trust Indenture Act.
The Property Trustee will act as Indenture Trustee for purposes of the Trust
Indenture Act. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as will be set forth in
the Declaration or made part of the Declaration by the Trust Indenture Act and
which will mirror the terms of the Subordinated Debentures held by the Trust and
described in the Prospectus Supplement relating thereto. Reference is made to
the Prospectus Supplement relating to the Preferred Securities of each Trust for
specific terms, including (i) the distinctive designation of such Preferred
Securities; (ii) the number of Preferred Securities issuable by such Trust;
(iii) the annual distribution rate (or method of determining such rate) for
Preferred Securities issued by such Trust and the date or dates upon which such
distributions will
5
be payable; (iv) whether distributions on Preferred Securities issued by such
Trust will be cumulative, and, in the case of Preferred Securities having such
cumulative distribution rights, the date or dates or method of determining the
date or dates from which distributions on Preferred Securities issued by such
Trust will be cumulative; (v) the amount or amounts which will be paid out of
the assets of such Trust to the holders of Preferred Securities of such Trust
upon voluntary or involuntary dissolution, winding-up or termination of such
Trust; (vi) the obligation, if any, of such Trust to purchase or redeem
Preferred Securities issued by such Trust and the price or prices at which, the
period or periods within which, and the terms and conditions upon which
Preferred Securities issued by such Trust will be purchased or redeemed, in
whole or in part, pursuant to such obligation; (vii) the voting rights, if any,
of holders of Preferred Securities issued by such Trust 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 such Preferred Securities, or of
Preferred Securities issued by one or more Trusts, or of both, as a condition to
specified action or amendments to the Declaration of such Trust; (viii) the
terms and conditions, if any, upon which the Subordinated Debentures owned by
such Trust may be distributed to holders of Preferred Securities of such Trust;
(ix) if applicable, any securities exchange upon which the Preferred Securities
of such Trust will be listed; and (x) any other relevant rights, preferences,
privileges, limitations or restrictions of Preferred Securities issued by such
Trust not inconsistent with the Declaration of such Trust or with applicable
law. All Preferred Securities offered hereby will be guaranteed by KCPL to the
extent set forth below under "Description of the Preferred Securities
Guarantees." Certain United Stated federal income tax considerations applicable
to any offering of Preferred Securities will be described in the Prospectus
Supplement relating thereto.
Each Trust will issue one series of Common Securities in connection
with the issuance of Preferred Securities. The Declaration of each Trust
authorizes the Regular Trustees of such Trust to issue on behalf of such Trust
one series of Common Securities having such terms including distributions,
redemption, voting, liquidation rights or such restrictions as will be set forth
therein. Except for voting rights, the terms of the Common Securities issued by
a Trust will be substantially identical to the terms of the Preferred Securities
issued by such Trust and such Common Securities will rank PARI PASSU, and
payments will be made thereon pro rata, with such Preferred Securities except
that, upon an event of default under the Declaration, the rights of the holders
of such Common Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise will be subordinated to the rights of
the holders of the Preferred Securities. Except in certain limited
circumstances, the Common Securities of a Trust will also carry the right to
vote to appoint, remove or replace any of the Trustees of such Trust. All of
the Common Securities of each Trust will be directly or indirectly owned by
KCPL.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
If an Event of Default under a Declaration of a Trust occurs and is
continuing, then the holders of Preferred Securities of such Trust would rely on
the enforcement by the Property Trustee of its rights as a holder of the
applicable series of Subordinated Debentures against KCPL. In addition, the
holders of a majority in liquidation amount of Preferred Securities of such
Trust will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or to direct the
exercise of any trust or power conferred upon the Property Trustee under the
applicable Declaration, including the right to direct such Property Trustee to
exercise the remedies available to it as a holder of Subordinated Debentures.
If the Property Trustee fails to enforce its right under the Subordinated
Debentures held by a Trust, a holder of Preferred Securities of such Trust may
institute a legal proceeding directly
6
against KCPL to enforce the Property Trustee's rights under the Subordinated
Debentures without first instituting any legal proceeding against the Property
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default under the Declaration of a Trust has occurred and is continuing
and such event is attributable to the failure of KCPL to pay interest or
principal on the applicable series of Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Preferred Securities of such Trust may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on such Subordinated Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder (a "Direct Action") on or after the respective due date specified in
such Subordinated Debentures. In connection with such Direct Action, KCPL will
be subrogated to the rights of such holder of Preferred Securities under the
applicable Declaration to the extent of any payment made by KCPL to such holder
of Preferred Securities in such Direct Action.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEE
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by KCPL for the
benefit of the holders from time to time of the Preferred Securities under each
Trust. Each Preferred Securities Guarantee will be qualified as an indenture
under the Trust Indenture Act. The Guarantee Trustee will act as the Guarantee
Trustee. The terms of each Preferred Securities Guarantee will be those set
forth therein and those made a part thereof by the Trust Indenture Act. The
following summary of the material terms of the Preferred Securities Guarantee
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 form of the Preferred
Securities Guarantee, which is filed as an exhibit to the Registration Statement
of which this Prospectus forms a part, and the Trust Indenture Act. Each
Preferred Securities Guarantee will be held by the Guarantee Trustee for the
benefit of the holders of the Preferred Securities of the applicable Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee with respect to a
Trust, KCPL will irrevocably and unconditionally agree, to the extent set forth
therein, to pay in full, to the holders of the Preferred Securities issued by
such Trust, the Guarantee Payments (as defined herein) (without duplication of
amounts theretofore paid by such Trust), as and when due regardless of any
defense, right of set-off or counterclaim which such Trust may have or assert.
The following payments or distributions with respect to the Preferred Securities
of a Trust, to the extent not paid or made by such Trust, (the "Guarantee
Payments") will be subject to the Preferred Securities Guarantee with respect to
such Trust (without duplication):(i) any accrued and unpaid distributions which
are required to be paid on the Preferred Securities, to the extent such Trust
has funds available therefor, (ii) the redemption price, including all accrued
and unpaid distributions to the date of the redemption (the "Redemption Price"),
to the extent such Trust has funds available therefor, with respect to any
Preferred Securities called for redemption by such Trust and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of such Trust
(other than in connection with the distribution of Subordinated Debentures held
by such Trust to the holders of Preferred Securities issued by such Trust in
exchange for such Preferred Securities or redemption of all such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on such Preferred Securities to the date of
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payment to the extent such Trust has funds available therefor and (b) the amount
of assets of such Trust remaining available for distribution to holders of such
Preferred Securities in liquidation of such Trust. The redemption price and
liquidation amount will be fixed at the time the Preferred Securities are
issued. KCPL's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by KCPL to the holders of Preferred
Securities issued by a Trust or by causing such Trust to pay such amounts to
such holders.
The Preferred Securities Guarantee for a Trust will not apply to any
payment of distributions except to the extent such Trust has funds available
therefor. If KCPL does not make interest payments on the Subordinated
Debentures purchased by a Trust, such Trust will not pay distributions on the
Preferred Securities issued by such Trust and will not have funds available
therefor.
The Preferred Securities Guarantee for a Trust, when taken together
with KCPL's obligations under the applicable Subordinated Debentures, the
Indenture and the applicable Declaration, including its obligation to pay costs,
expenses, debt, and liabilities of such Trust (other than with respect to its
Trust Securities), will be a full and unconditional guarantee, on a subordinated
basis, by KCPL of payments due on the Preferred Securities issued by such Trust
from the time of issuance of such Preferred Securities, but will not apply to
the payment of distributions and other payments on such Preferred Securities
when the Property Trustee does not have sufficient funds in the Property Account
of such Trust to make such distributions or other payments. If KCPL does not
make interest payments on the Subordinated Debentures held by the Property
Trustee for a Trust, such Trust will not make distributions on the Preferred
Securities issued by such Trust and will not have funds available therefor. See
"Description of the Subordinated Debentures -- Certain Covenants."
CERTAIN COVENANTS OF KCPL
In the Preferred Securities Guarantee for a Trust, KCPL will covenant
that, so long as any Preferred Securities issued by such Trust remain
outstanding, if there shall have occurred and be continuing any event that would
constitute an event of default under such Preferred Securities Guarantee or the
Declaration of such Trust, then (a) KCPL may not declare or pay any dividend on,
or make any distribution of such Trust with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of shares of KCPL common stock in
connection with the satisfaction by KCPL of its obligations under any employee
benefit plans or any other contractual obligation of KCPL (other than a
contractual obligation ranking PARI PASSU with or junior to the Subordinated
Debentures), (ii) as a result of a reclassification of KCPL capital stock or the
exchange or conversion of one class or series of KCPL capital stock for another
class or series of KCPL capital stock or (iii) the purchase of fractional
interests in shares of KCPL capital stock pursuant to the conversion or exchange
provisions of such KCPL capital stock or the security being converted or
exchanged), (b) KCPL may not make any payment of interest, principal or premium,
if any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by KCPL which rank PARI PASSU with or junior to the
Subordinated Debentures and (c) KCPL may not make any guarantee payments with
respect to the foregoing (other than pursuant to the Preferred Stock
Guarantees).
AMENDMENTS AND ASSIGNMENT
8
Except with respect to any changes which do not materially adversely
affect the rights of holders of Preferred Securities issued by a Trust (in which
case no vote will be required), the Preferred Securities Guarantee for such
Trust may be amended only with the prior approval of the holders of not less
than 66-2/3% in liquidation amount of the outstanding Preferred Securities
issued by such Trust. The manner of obtaining any such approval of holders of
Preferred Securities will be set forth in the applicable Prospectus Supplement.
All guarantees and agreements contained in each Preferred Securities Guarantee
will bind the successors, assigns, receivers, trustees and representatives of
KCPL and will inure to the benefit of the Preferred Guarantee Trustee and the
holders of the Preferred Securities of the applicable Trust then outstanding.
TERMINATION OF THE PREFERRED SECURITIES GUARANTEE
Each Preferred Securities Guarantee for a Trust will terminate and be
of no further force and effect as to the Preferred Securities issued by such
Trust upon full payment of the Redemption Price of all such Preferred
Securities, or upon distribution of the Subordinated Debentures held by such
Trust to the holders of the Trust Securities of such Trust, and will terminate
completely upon full payment of the amounts payable upon liquidation of such
Trust. See "Description of the Subordinated Debentures -- Indenture Events of
Default" for a description of the events of default and enforcement rights of
the holders of Subordinated Debentures. Each Preferred Securities Guarantee for
a Trust will continue to be effective or will be reinstated, as the case may be,
if at any time any holder of Preferred Securities issued by such Trust must
repay to such Trust or KCPL, or their successors, any sums paid to them under
such Preferred Securities or Preferred Securities Guarantee.
EVENTS OF DEFAULT
An event of default under each Preferred Securities Guarantee will
occur upon the failure of KCPL to perform any of its payment or other
obligations thereunder.
The holders of a majority in liquidation amount of the Preferred
Securities issued by a Trust will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of the Preferred Securities Guarantee for such
Trust or to direct the exercise of any trust or power conferred upon the
Preferred Guarantee Trustee under such Preferred Securities Guarantee. If the
Preferred Guarantee Trustee fails to enforce the Preferred Securities Guarantee
for a Trust, any holder of related Preferred Securities may institute a legal
proceeding directly against KCPL to enforce the Preferred Guarantee Trustee's
rights under such Preferred Securities Guarantee, without first instituting a
legal proceeding against such Trust, the Preferred Guarantee Trustee or any
other person or entity.
STATUS OF THE PREFERRED SECURITIES GUARANTEE
KCPL's obligations under the Preferred Securities Guarantee to make
the Guarantee Payments will constitute unsecured obligations of KCPL and will
rank (i) subordinate and junior in right of payment to all other liabilities of
KCPL, including the Subordinated Debentures, except those liabilities of KCPL
made PARI PASSU or subordinate by their terms, (ii) PARI PASSU with the most
senior preferred stock now or hereafter issued by KCPL and with any
9
guarantee now or hereafter entered into by KCPL in respect of any preferred or
preference stock of any affiliate of KCPL, and (iii) senior to KCPL common
stock. The terms of the Preferred Securities provide that each holder of
Preferred Securities issued by the a Trust, by acceptance thereof, agrees to
the subordination provisions and other terms of the Preferred Securities
Guarantee relating thereto.
Each Preferred Securities Guarantees will constitute guarantee of
payment and not of collection (that is, the guaranteed party may institute a
legal proceeding directly against the guarantor to enforce its rights under such
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity). Each Preferred Securities Guarantee will be
deposited with the Guarantee Trustee to be held for the benefit of the holders
of the related Preferred Securities. Except as otherwise noted herein, the
Guarantee Trustee has the right to enforce each Preferred Securities Guarantee
on behalf of the holders of the related Preferred Securities. The Preferred
Securities Guarantee for a Trust will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts theretofore paid by
such Trust).
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee and after the curing of all such
defaults that may have occurred, undertakes to perform only such duties as are
specifically set forth in each Preferred Securities Guarantee and, after
default, will exercise the same degree of care as a prudent individual would
exercise in the conduct of his or her own affairs. Subject to such provisions,
the Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Preferred Securities Guarantee for a Trust at the request of
any holder of Preferred Securities issued by such Trust, unless offered
reasonable indemnity against the costs, expenses and liabilities which might be
incurred thereby; but the foregoing shall not relieve the Guarantee Trustee,
upon the occurrence of an event of default under such Preferred Securities
Guarantee, from exercising the rights and powers vested in it by such Preferred
Securities Guarantee. The Guarantee Trustee also serves as Property Trustee.
KCPL and its officers and directors have no material relationship with
the Guarantee Trustee except that (a) the Guarantee Trustee is a dealer in
commercial paper issued by KCPL, (b) the Guarantee Trustee is trustee and
remarketing agent for certain governmental revenue bonds which are payable with
amounts paid by KCPL to the issuer of such bonds, and (c) KCPL and its principal
subsidiary maintain lines of credit with the Guarantee Trustee.
GOVERNING LAW
The Preferred Securities Guarantee will be governed by, and construed
in accordance with, the internal laws of the State of New York.
DESCRIPTION OF THE SUBORDINATED DEBENTURES
Set forth below is a description of the terms of the Subordinated
Debentures which each of the Trusts will hold as trust assets. The following
description does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the indenture
10
("Indenture"), dated as of _________________, between KCPL and The First
National Bank of Chicago, as Trustee (the "Debt Trustee"), as supplemented by
the Supplemental Indenture creating each series of Subordinated Debentures. The
Indenture and the form of Supplemental Indenture are filed as exhibits to the
Registration Statement of which this Prospectus forms a part. The terms each
series of Subordinated Debentures will include those stated in the Indenture and
the related Supplemental Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act. Certain capitalized terms used herein are
defined in the Indenture and the related Supplemental Indenture.
Under certain circumstances involving the dissolution of a Trust
following the occurrence of a Special Event as defined in the applicable
Prospectus Supplement, Subordinated Debentures held by a Trust may be
distributed to the holders of Trust Securities issued by such Trust in
liquidation of such Trust. See "Description of the Preferred Securities --
Dissolution; Distribution of Subordinated Debentures" in the applicable
Prospectus Supplement.
If any Subordinated Debentures are distributed to the holders of Trust
Securities, KCPL will use its best efforts to have such Subordinated Debentures
listed on the New York Stock Exchange or on such other exchange as the related
Preferred Securities are then listed.
GENERAL
The Indenture provides for the issuance of Subordinated Debentures in
an unlimited amount from time to time. Each series of Subordinated Debentures
will constitute a separate series under the Indenture, will be in a principal
amount equal to the aggregate stated Liquidation Amount of the Preferred
Securities issued by the Trust which will hold such Subordinated Debentures plus
KCPL's concurrent investment in the Common Securities of such Trust and will
rank PARI PASSU with all other series of Subordinated Debentures.
The entire principal amount of the Subordinated Debentures held by a
Trust will mature and become due and payable, together with any accrued and
unpaid interest thereon, including Additional Interest (as defined), if any, on
the date set forth in the applicable Prospectus Supplement.
Reference is made to the Prospectus Supplement relating to the
particular Subordinated Debentures being offered thereby for the following
terms: (1) the designation of such Subordinated Debentures; (2) the aggregate
principal amount of such Subordinated Debentures; (3) the date or dates on which
such Subordinated Debentures will mature and the right, if any, to shorten such
date or dates; (4) the rate or rates; if any, per annum, at which such
Subordinated Debentures will bear interest, or the method of determination of
such rate or rates; (5) the date or dates from which such interest will 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; (6) the right, if any, to extend the interest payment periods and
the duration of such extensions; (7) provisions for a sinking, purchase or other
analogous fund; (8) the period or periods, if any, within which, the price or
prices of which, and the terms and conditions upon which such Subordinated
Debentures may be redeemed, in whole or in part, at the option of KCPL or the
holder; (9) the form of such Subordinated Debentures; and (10) any other
specific terms of such Subordinated Debentures. Principal, premium, if any, and
interest, if any, will be payable, and the Subordinated Debentures offered
hereby will be transferable, at the corporate trust office
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of the Debt Trustee in New York, New York, provided that payment of interest, if
any, may be made at the option of KCPL by check mailed to the address of the
person entitled thereto as it appears in the Security Register.
If a Prospectus Supplement specifies that a series of Subordinated
Debentures is denominated in a currency or currency unit other than United
States dollars, such Prospectus Supplement will also specify the denomination in
which such Subordinated Debentures will be issued and the coin or currency in
which the principal, premium, if any, and interest, if any, on such Subordinated
Debentures will be payable, which may be United States dollars based upon the
exchange rate for such other currency or currency unit existing on or about the
time a payment is due.
The covenants contained in the Indenture would not necessarily afford
protection to holders of the Subordinated Debentures in the event of a decline
in credit quality resulting from takeovers, recapitalizations or similar
restructurings of KCPL.
If Subordinated Debentures held by a Trust are distributed to holders
of its Preferred Securities in liquidation of such holders' interests in such
Trust, such Subordinated Debentures will initially be issued as a Global
Security (as defined below). As described herein, under certain limited
circumstances, Subordinated Debentures may be issued in certificated form in
exchange for a Global Security. See "--Book Entry and Settlement." In the event
Subordinated Debentures are issued in certificated form, such Subordinated
Debentures will be in denominations as specified in the applicable Prospectus
Supplement and integral multiples thereof and may be transferred or exchanged at
the offices described therein. Payments on Subordinated Debentures issued as a
Global Security will be made to the depositary for the Subordinated Debentures.
In the event Subordinated Debentures are issued in certificated form, principal
and interest will be payable, the transfer of the Subordinated Debentures will
be registrable and Subordinated Debentures will be exchangeable for Subordinated
Debentures of other denominations of a like aggregate principal amount at the
corporate trust office of the Debt Trustee in New York, New York; provided, that
payment of interest may be made at the option of KCPL by check mailed to the
address of the persons entitled thereto.
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction involving KCPL.
SUBORDINATION
The Indenture provides that the Subordinated Debentures are
subordinated and junior in right of payment to all Senior Indebtedness of KCPL,
whether now existing or hereafter incurred. Senior Indebtedness may include
Indebtedness of KCPL which is subordinated to other Indebtedness of KCPL but
nevertheless senior to the Subordinated Debentures. No payment of principal of
(including redemption payments, if any), premium, if any, or interest on, the
Subordinated Debentures may be made if (a) there is any default in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness, or (b) the maturity of any Senior Indebtedness has been
accelerated because of a default. Upon any distribution of assets of KCPL 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, premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full before the holders
of the Subordinated Debentures are entitled to receive or retain
12
any payment. The rights of the holders of the Subordinated Debentures will be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions applicable to such Senior Indebtedness until all
amounts owing on the Subordinated Debentures are paid in full.
The term "Senior Indebtedness" means (i) any payment in respect of (a)
indebtedness of KCPL for money borrowed and (b) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by KCPL
including, without limitation, indebtedness evidenced by securities issued
pursuant to its General Mortgage Indenture and Deed of Trust dated as of
December 1, 1986, between KCPL and UMB Bank, N.A., as supplemented, and pursuant
to indentures with various trustees (other than the Indenture); (ii) all capital
lease obligations of KCPL; (iii) all obligations of KCPL issued or assumed as
the deferred purchase price of property, all conditional sale obligations of
KCPL and all of its obligations under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of KCPL for reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which KCPL is responsible or liable as obligor,
guarantor or otherwise; and (vi) all obligations of the type referred to in
clauses (i) through (v) above of other Persons secured by any lien on any
property or asset of KCPL (whether or not such obligation is assumed by KCPL),
except for (1) any such indebtedness that is by its terms subordinated to or
PARI PASSU with the Subordinated Debentures, as the case may be, including all
other debt securities and guarantees in respect of those debt securities, issued
to any other trusts, partnerships or other entity affiliated with KCPL which is
a financing vehicle of KCPL in connection with the issuance of preferred
securities by such entity or other securities which rank PARI PASSU with, or
junior to, the Preferred Securities, and (2) any indebtedness between or among
KCPL and its affiliates. Such Senior Indebtedness will continue to be Senior
Indebtedness and be entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
The Indenture does not limit the aggregate amount of Senior
Indebtedness which may be issued by KCPL.
CERTAIN COVENANTS
If (i) there has occurred any event that would constitute an
Indenture Event of Default or (ii) KCPL is in default with respect to its
payment of any obligations under any Preferred Securities, then (a) KCPL may not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, (other than (i) purchases or acquisitions of shares of KCPL
common stock in connection with the satisfaction by KCPL of its obligations
under any employee benefit plans or any other contractual obligation of KCPL
(other than a contractual obligation ranking PARI PASSU with or junior to the
Subordinated Debentures), (ii) as a result of a reclassification of KCPL capital
stock or the exchange or conversion of one class or series of KCPL capital stock
for another class or series of KCPL capital stock or, (iii) the purchase of
fractional interests in shares of KCPL capital stock pursuant to the conversion
or exchange provisions of such KCPL capital stock or the security being
converted or exchanged), (b) KCPL may not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by KCPL which rank PARI PASSU with or junior to the
Subordinated Debentures and (c) KCPL may
13
not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantees).
If KCPL has given notice of its election of an Extension Period as
provided in the Indenture and such period, or any extension thereof, is
continuing, then (a) KCPL may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a liquidation payment
with respect to, any of its capital stock, (other than (i) purchases or
acquisitions of shares of KCPL common stock in connection with the satisfaction
by KCPL of its obligations under any employee benefit plans or any other
contractual obligation of KCPL (other than a contractual obligation ranking PARI
PASSU with or junior to the Subordinated Debentures), (ii) as a result of a
reclassification of KCPL capital stock or the exchange or conversion of one
class or series of KCPL capital stock for another class or series of KCPL
capital stock or, (iii) the purchase of fractional interests in shares of KCPL
capital stock pursuant to the conversion or exchange provisions of such KCPL
capital stock or the security being converted or exchanged) (b) KCPL may not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by KCPL
which rank PARI PASSU with or junior to the Subordinated Debentures and (c) KCPL
may not make any guarantee payments with respect to the foregoing (other than
pursuant to the Preferred Securities Guarantees).
For so long as the Trust Securities under a Trust remain outstanding,
KCPL will covenant (i) to directly or indirectly maintain 100% direct or
indirect ownership of the Common Securities of such Trust; provided, however,
that any permitted successor of KCPL under the Indenture may succeed to KCPL's
ownership of such Common Securities, (ii) not to cause, as sponsor of such
Trust, or to permit, as holder of such Common Securities, the dissolution or
winding-up of such Trust, except in connection with a distribution of the
Subordinated Debentures held by such Trust as provided in the Declaration for
such Trust and in connection with certain mergers, consolidations or
amalgamations and (iii) to use its reasonable efforts to cause such Trust (a) to
remain a statutory business trust, except in connection with the distribution of
Subordinated Debentures to the holders of Trust Securities of such Trust in
liquidation of such Trust, the redemption of all such Trust Securities, or
certain mergers, consolidations or amalgamations, each as permitted by such
Declaration, and (b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes.
OPTIONAL REDEMPTION
KCPL will have the right to redeem the Subordinated Debentures of each
series, in whole or in part, from time to time, on or after the date set forth
in the applicable Prospectus Supplement or at any time in certain circumstances
upon the occurrence of a Tax Event as described under "Description of the
Preferred Securities -- Tax Event Redemption" in the applicable Prospectus
Supplement, 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.
If a partial redemption of the Preferred Securities of a Trust resulting from a
partial redemption of the Subordinated Debentures held by such Trust would
result in the delisting of such Preferred Securities, KCPL may only redeem such
Subordinated Debentures in whole.
INTEREST
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Each Subordinated Debenture will bear interest at the rate set forth
in the applicable Prospectus Supplement from the original date of issuance,
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year (each, an "Interest Payment Date"), to the person in whose name
such 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 Subordinated Debentures do not continue to remain in book-entry
only form, KCPL will have the right to select record dates which may be not less
than fifteen days prior to each 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. The amount of interest payable
for any period shorter than a full quarterly period will be computed on the
basis of the actual number of days elapsed in such 90-day quarter. In the event
that any date on which interest is payable on the 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.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Except to the extent set forth in the applicable Prospectus
Supplement, KCPL will have the right at any time, and from time to time, during
the term of any series of Subordinated Debentures, to defer payments of interest
by extending the interest payment period for a period not exceeding 20
consecutive quarters, at the end of which Extension Period, KCPL will pay all
interest then accrued and unpaid (including any Additional Interest, together
with interest thereon at the rate specified for such Subordinated Debentures to
the extent permitted by applicable law); provided, that, during any such
Extension Period, (a) KCPL may not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock, (other than (i)
purchases or acquisitions of shares of KCPL common stock in connection with the
satisfaction by KCPL of its obligations under any employee benefit plans or any
other contractual obligation of KCPL (other than a contractual obligation
ranking PARI PASSU with or junior to the Subordinated Debentures), (ii) as a
result of a reclassification of KCPL capital stock or the exchange or conversion
of one class or series of KCPL capital stock for another class or series of KCPL
capital stock or, (iii) the purchase of fractional interests in shares of KCPL
capital stock pursuant to the conversion or exchange provisions of such KCPL
capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing (b) KCPL may not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by KCPL which rank PARI
PASSU with or junior to the Subordinated Debentures to which such Extension
Period applies and (c) KCPL will not make any guarantee payments with respect to
the foregoing (other than pursuant to the Preferred Securities Guarantees).
This covenant effectively requires that any Extension Period with respect to
payment of interest on a series of Subordinated Debentures will also apply to
each other series of subordinated debentures issued under the Indenture to other
trusts similar to the Trust. Prior to the termination of any such Extension
Period for a series of Subordinated Debentures, KCPL may further defer payments
of interest on such Subordinated Debentures, by extending the interest payment
period, provided that such Extension Period together with all such previous and
further
15
extensions thereof for such series of Subordinated Debentures may not exceed 20
consecutive quarters or extend beyond the maturity of such series of
Subordinated Debentures.
Upon the termination of any Extension Period for a series of
Subordinated Debentures, and the payment of all amounts then due, KCPL may
select a new Extension Period for such series of Subordinated Debentures, as if
no Extension Period had previously been declared, subject to the above
requirements. No interest on a series of Subordinated Debentures during an
Extension Period, except at the end thereof, will be due and payable on such
series of Subordinated Debentures.
KCPL has no present intention of exercising its rights to defer
payments of interest by extending the interest payment period on any
Subordinated Debentures.
If the Property Trustee is the sole holder of a series of Subordinated
Debentures, KCPL will give the Regular Trustees and the Property Trustee notice
of its selection of such Extension Period for such series of Subordinated
Debentures one Business Day prior to the earlier of (i) the next succeeding date
on which distributions on the related Preferred Securities are payable or (ii)
the date the applicable Trust is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of such
Preferred Securities on the record date or the date such distribution is
payable, but in any event not less than one Business Day prior to such record
date. The Regular Trustees shall give notice of KCPL's selection of such
Extension Period to the holders of such Preferred Securities. If the Property
Trustee is not the sole holder of a series of Subordinated Debentures, KCPL will
give the holders of such 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 KCPL is required to give notice to the New York
Stock Exchange or other applicable self-regulatory organization or to holders of
such Subordinated Debentures on the record or payment date of such related
interest payment, but in any event at least two Business Days before such record
date.
ADDITIONAL INTEREST
If at any time a Trust is 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, KCPL will pay as additional interest ("Additional Interest") such
additional amounts as shall be required so that the net amounts received and
retained by such Trust after paying any such taxes, duties, assessments or other
governmental charges will be equal to the amounts such Trust would have received
had no such taxes, duties, assessments or other governmental charges been
imposed.
INDENTURE EVENTS OF DEFAULT
In case any Indenture Event of Default occurs and is continuing with
respect to a series of Subordinated Debentures, the Property Trustee, as the
holder of such Subordinated Debentures, will have the right to declare the
principal of and the interest on such Subordinated Debentures (including
Additional Interest, if any) 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 such Subordinated Debentures.
16
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 any series of the Subordinated Debentures:
(a) failure for 30 days to pay interest on the Subordinated
Debentures of such series, including any Additional Interest in respect
thereof, when due; provided, however, that a valid extension of the
interest payment period by KCPL will not constitute a default in the
payment of interest for this purpose; or
(b) failure to pay principal of or premium, if any, on the
Subordinated Debentures of such series when due whether at maturity, upon
redemption or otherwise; or
(c) failure to observe or perform any other covenant (other than
those specifically relating solely to one or more other series of
Subordinated Debentures) contained in the Indenture for 90 days after
written notice to KCPL from the Debt Trustee or the holders of at least 25%
in principal amount of the outstanding Subordinated Debentures; or
(d) certain events of bankruptcy, insolvency or reorganization of
KCPL; or
(e) the voluntary or involuntary dissolution, winding-up or
termination of the applicable Trust, except in connection with the
distribution of Subordinated Debentures to the holders of Trust Securities
of such Trust in liquidation of such Trust, the redemption of all
outstanding Trust Securities of such Trust and certain mergers,
consolidations or amalgamations permitted by the Declaration.
The holders of a majority in aggregate outstanding principal amount of
the Subordinated Debentures of such series have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debt Trustee. Either the Debt Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Subordinated Debentures of such
series may declare the principal of such series due and payable immediately on
default, but the holders of a majority in aggregate outstanding principal amount
of such series may annul such declaration and waive such default if such default
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration and any applicable premium has
been deposited with the Debt Trustee.
The holders of a majority in aggregate outstanding principal amount of
a series of Subordinated Debentures affected thereby may, on behalf of the
holders of all such Subordinated Debentures, waive any past default, except (i)
a default in the payment of principal, premium, if any, or interest (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal due otherwise than by acceleration and any applicable
premium has been deposited with the Debt Trustee) or (ii) a default in the
covenant of KCPL not to declare or pay dividends on, or make distributions with
respect to, or redeem, purchase or acquire any of its capital stock during an
Extension Period. An Indenture Event of Default also constitutes a Declaration
Event of Default. The holders of Preferred Securities in certain circumstances
described in the applicable Prospectus Supplement may have the right to direct
the Property Trustee to exercise its rights as the holder of the Subordinated
Debentures.
PAYMENT AND PAYING AGENTS
17
Payment of principal of and premium (if any) on Subordinated
Debentures will be made only against surrender to the Paying Agent of the
Subordinated Debentures. Principal of and any premium and interest, if any, on
Subordinated Debentures will be payable, subject to any applicable laws and
regulations, at the office of such Paying Agent or Paying Agents as KCPL may
designate from time to time, except that at the option of KCPL payment of any
interest may be made by check mailed to the address of the person entitled
thereto as such address appears in the Debenture Register with respect to the
Subordinated Debentures. Payment of interest on the Subordinated Debentures on
any Interest Payment Date will be made to the person in whose name the
Subordinated Debenture (or predecessor security) is registered at the close of
business on the Regular Record Date for such interest payment.
The Debt Trustee will act as Paying Agent with respect to the
Subordinated Debentures. KCPL may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change in the
office through which any Paving Agent acts, except that KCPL will be required to
maintain a Paying Agent at the place of payment.
All moneys paid by KCPL to a Paying Agent for the payment of the
principal of or premium or interest, if any, on any Subordinated Debentures
which remain unclaimed at the end of two years after such principal, premium, if
any, or interest shall have become due and payable will be repaid to KCPL and
the holder of such Subordinated Debentures will thereafter look only to KCPL for
payment thereof.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting KCPL and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Subordinated Debentures, to modify the Indenture or the
rights of the holders of the Subordinated Debentures, and the holders of not
less than a majority in principal amount of the Subordinated Debentures of a
particular series to modify the supplemental indenture affecting that series;
provided that no such modification may, without the consent of the holder of
each outstanding Subordinated Debenture affected thereby, (i) extend the fixed
maturity of such Subordinated Debentures, 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 the Subordinated Debentures so affected or (ii) reduce the
percentage of Subordinated Debentures, the holders of which are required for
such consent, without the consent of the holder of each Subordinated Debenture
then outstanding and affected thereby.
In addition, KCPL and the Debt Trustee may execute, without the
consent of holders of the Subordinated Debentures, any supplemental indenture
for certain other usual purposes including the creation of any new series of
Subordinated Debentures.
CONSOLIDATION, MERGER AND SALE
The Indenture does not contain any covenant which restricts the
ability of any Trust or KCPL to merge or consolidate with or into any other
corporation, sell or convey all or substantially all of its assets to any
person, firm or corporation or otherwise engage in restructuring transactions.
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DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, KCPL will be discharged from any and
all obligations in respect of any series of Subordinated Debentures (except in
each case for certain obligations with respect to denominations and provisions
for payment of such Subordinated Debentures and obligations to register the
transfer or exchange of such Subordinated Debentures, replace stolen, lost or
mutilated Subordinated Debentures, maintain paying agencies and hold moneys for
payment in trust) if KCPL (i) deposits with the Debt Trustee, in trust, moneys
or Governmental Obligations, in an amount sufficient to pay all the principal
of, and interest on, such Subordinated Debentures on the dates such payments are
due in accordance with the terms of such Subordinated Debentures and (ii)
delivers to the Debt Trustee an opinion of counsel to the effect that, based
upon KCPL's receipt from, or the publication by, the Internal Revenue Service of
a ruling, or a change in law, the holders of the Subordinated Debentures of such
series will not recognize income, gain or loss for United States Federal income
tax purposes as a result of the deposit, defeasance and discharge and will be
subject to United States Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance or discharge had not occurred.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by, and
construed in accordance with, the internal laws of the State of New York.
INFORMATION CONCERNING THE DEBT TRUSTEE
The Debt Trustee, prior to default, undertakes to perform only such
duties as are specifically set forth in the Indenture and, after default, will
exercise the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision, the Debt Trustee
is under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby; but the foregoing will not relieve
the Debt Trustee, upon the occurrence of an Indenture Event of Default, from
exercising the rights and powers vested in it by the Indenture. The Debt
Trustee is not required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the Debt
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
MISCELLANEOUS
KCPL will have the right at all times to assign any of its rights or
obligations under the Indenture to a direct or indirect wholly-owned subsidiary
of KCPL; provided that, in the event of any such assignment, KCPL will remain
liable for all of such obligations. Subject to the foregoing, the Indenture
will be binding upon and inure to the benefit of the parties thereto and their
respective successors and assigns. The Indenture provides that it may not
otherwise be assigned by the parties thereto.
The Indenture will provide that KCPL will pay all fees and expenses
related to (i) the offering and sale of the Trust Securities and the
Subordinated Debentures, (ii) the
19
organization, maintenance and dissolution of each Trust, (iii) the retention of
the Trustees and (iv) the enforcement by the Property Trustee of the rights of
holders of Preferred Securities.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBENTURES
AND THE PREFERRED SECURITIES GUARANTEE
As set forth in the Declaration for each Trust, the sole purposes of
each Trust are to (i) issue Trust Securities, (ii) invest the proceeds thereof
in the Subordinated Debentures and (iii) engage in only those other activities
necessary or incidental thereto.
As long as payments of interest and other payments are made when due
on a series of Subordinated Debentures, such payments will be sufficient to
cover distributions and payments due on the related Trust Securities primarily
because (i) the aggregate principal amount of such Subordinated Debentures will
be equal to the sum of the aggregate stated liquidation amount of such Trust
Securities; (ii) the interest rate and interest and other payment dates on such
Subordinated Debentures will match the distribution rate and distribution and
other payment dates for such Preferred Securities; (iii) KCPL will pay for all
costs and expenses of each Trust; and (iv) the Declaration provides that the
Trustees may not cause or permit the Trust to, among other things, engage in any
activity that is not consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available)
and other payments due on the Preferred Securities (to the extent funds therefor
are available) are guaranteed by KCPL as and to the extent set forth under
"Description of the Preferred Securities Guarantee". If KCPL does not make
interest payments on the Subordinated Debentures purchased by a Trust, it is
expected that such Trust will not have sufficient funds to pay distributions on
such Preferred Securities. The Preferred Securities Guarantee for a Trust is a
full and unconditional guarantee from the time of its issuance, but does not
apply to any payment of distributions unless and until such Trust has sufficient
funds for the payment of such distributions.
If KCPL fails to make interest or other payments on the Subordinated
Debentures held by a Trust when due (taking into account any Extension Period),
the Declaration for such Trust provides a mechanism whereby the holders of the
Preferred Securities of such Trust, using the procedures described in
"Description of the Preferred Securities -- Voting Rights" in the applicable
Prospectus Supplement may direct the Property Trustee to enforce its rights
under such Subordinated Debentures, including proceeding directly against KCPL
to enforce the Subordinated Debentures. If the Property Trustee fails to
enforce its rights under such Subordinated Debentures, a holder of such
Preferred Securities may, after a period of 30 days has elapsed from such
holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against KCPL to enforce the Property
Trustee's rights under such Subordinated Debentures without first instituting
any legal proceeding against the Property Trustee or any other person or entity,
including such Trust.
If KCPL fails to make payments under a Preferred Securities Guarantee
for a Trust, such Preferred Securities Guarantee provides a mechanism whereby
the holders of the Preferred Securities of such Trust may direct the Guarantee
Trustee to enforce its rights thereunder. If the Guarantee Trustee fails to
enforce such Preferred Securities Guarantee, any holder of such Preferred
Securities may institute a legal proceeding directly against KCPL to enforce the
20
Guarantee Trustee's rights under such Preferred Securities Guarantee, without
first instituting a legal proceeding against such Trust, the Guarantee Trustee
or any other person or entity.
The above mechanisms and obligations, taken together, are equivalent
to a full and unconditional guarantee by KCPL of payments due on the Preferred
Securities. See "Description of the Preferred Securities Guarantees --
General."
PLAN OF DISTRIBUTION
KCPL and the Trusts may offer and sell the Preferred Securities in any
of three ways: (i) through agents; (ii) through underwriters or dealers; or
(iii) directly to one or more purchasers. The Prospectus Supplement with
respect to any of the 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, the
proceeds to the applicable Trust from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
the 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.
The distribution of the Preferred Securities may be effected from time
to time in one or more transactions at a fixed price or prices, which may be
changed, at a market price prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices.
Underwriters, dealers and agents may be entitled, under agreements
entered into with KCPL to indemnification by KCPL against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the underwriters, dealers or agents may be
required to make in respect thereof. Such underwriters, dealers and agents, and
affiliates thereof, may be customers of, engage in transactions with, or perform
services for KCPL and its affiliates in the ordinary course of business.
All Preferred Securities will be new issues of securities with no
established trading market. Any underwriters to whom Preferred Securities are
sold by a Trust 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. No assurance can be
given concerning the liquidity of the trading market for any Preferred
Securities.
21
EXPERTS
The financial statements included in KCPL's Annual Report on Form 10-K
for the year ended December 31, 1995, incorporated by reference in this
Prospectus and in the Registration Statement, have been audited by Coopers &
Lybrand L.L.P., independent public accountants, as indicated in their reports
with respect thereto, and are included herein, in reliance upon the authority of
said firm as experts in giving said reports.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the
Preferred Securities will be passed upon on behalf of each Trust by Pepper,
Hamilton & Scheetz, special Delaware counsel to each Trust. Legal matters with
respect to the Subordinated Debentures offered hereby and the Preferred
Securities Guarantees will be passed upon for KCPL by Jeanie Sell Latz, Senior
Vice President and Chief Legal Officer, and for the Underwriters by Sidley &
Austin, One First National Plaza, Chicago, Illinois 60603. Sidley & Austin will
rely for purposes of their opinions upon the opinion of Ms. Latz as to matters
of Missouri law. Certain United States federal income taxation matters will be
passed upon by Sidley & Austin. At September 30, 1996, Ms. Latz owned
beneficially 1,945 shares of KCPL's Common Stock; she also has options to
purchase 15,375 shares of KCPL's Common Stock at the fair market value on the
dates of the grants. Sidley & Austin occasionally performs legal services for
KCPL.
The statements herein under "Description of Subordinated Debentures"
and "Description of Preferred Securities Guarantees," as to the matters of law
and legal conclusions, have been prepared under the supervision of and reviewed
by, and are made on the authority of Ms. Latz, who has given her opinion that
such statements as to such matters and conclusions are correct.
22
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No person is authorized to give any information or make any representations,
other than those contained or incorporated by reference in this Prospectus
Supplement and the Prospectus, in connection with the offer contained herein,
and, if given or made, such other information or representations must not be
relied upon as having been authorized by the KCPL, the Trust or the
Underwriters. Neither the delivery of this Prospectus Supplement and the
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of KCPL since the
date as of which information is given in this Prospectus Supplement and the
Prospectus. This Prospectus Supplement and the Prospectus do not constitute an
offer or solicitation by any person in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to any person to whom it is unlawful
to make such offer or solicitation.
________________________
TABLE OF CONTENTS
Page
----
Prospectus Supplement
Risk Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Kansas City Power & Light Company . . . . . . . . . . . . . . . . . . . .
The Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . . . .
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . .
Capitalization of KCPL. . . . . . . . . . . . . . . . . . . . . . . . . .
Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Description of the Preferred Securities Guarantee . . . . . . . . . . . .
Description of the Preferred Securities . . . . . . . . . . . . . . . . .
Description of the Subordinated Debentures . . . . . . . . . . . . . . .
Effect of Obligations under the Junior Subordinated
Debt Securities and the Preferred Securities
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United States Federal Income Taxation . . . . . . . . . . . . . . . . . .
Underwriting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
PROSPECTUS
Available Information
Incorporation of Certain Documents by Reference
Kansas City Power & Light Company
The Trusts
Ratios of Earnings to Fixed Charges and Earnings
to Fixed Charges and Preferred Dividend Requirements
Use of Proceeds
Description of the Preferred Securities
Description of the Preferred Securities Guarantee
Description of the Subordinated Debentures
Effect of Obligations Under the Subordinated
Debentures and the Preferred Securities Guarantee
Plan of Distribution
Experts
Legal Opinions
--------------------
--------------------
PREFERRED SECURITIES
KCPL Financing I
KCPL Financing II
KCPL Financing III
____% TRUST ORIGINATED
PREFERREDSECURITIES_
("TOPRS_)
FULLY AND UNCONDITIONALLY
GUARANTEED BY
KANSAS CITY
POWER & LIGHT
COMPANY
---------------------
PROSPECTUS SUPPLEMENT
---------------------
MERRILL LYNCH & CO.
, 199_
---------------------
---------------------
23
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSE OF ISSUANCE AND DISTRIBUTION
An estimate of such expense, other than underwriting commissions, is as
follows:
Securities and Exchange Commission filing fee . . . . . . . $90,909
New York Stock Exchange listing fee . . . . . . . . . . . 45,000
Rating Agency fees . . . . . . . . . . . . . . . . . . . . 77,000
Trustees' expenses . . . . . . . . . . . . . . . . . . . . 15,000
Printing and engraving fees . . . . . . . . . . . . . . . . 30,000
Accounting fees and expenses. . . . . . . . . . . . . . . . 10,000
Legal fees and expenses . . . . . . . . . . . . . . . . . 125,000
Blue Sky expenses . . . . . . . . . . . . . . . . . . . . 1,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . 6,091
Total . . . . . . . . . . . . . . . . . . . . . . . . $400,000
--------
--------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 351.355 R.S.Mo. (1986) provides as follows:
1. A corporation created under the laws of this state may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the corporation, by reason of the fact that he 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, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgements, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contenders or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in an manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
2. The corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he 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, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
and amounts paid in settlement actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner he reasonably believed to be in or
II-1
not opposed to the best interests of the corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the court in which the action or suit was brought determines
upon application that, despite the adjudication of liability and in view of all
the circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
3. To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in subsections 1 and 2 of this section,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the action, suit or proceeding.
4. Any indemnification under subsections 1 and 2 of this section,
unless ordered by a court, shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in this section. The determination
shall be made by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit, or proceeding,
or if such a quorum is not obtainable, or even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or by the shareholders.
5. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of the action, suit, or proceeding as authorized by the board of directors in
the specific case upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this section.
6. The indemnification provided by this section shall be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under the articles of incorporation or bylaws or any agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
7. A corporation created under the laws of this state shall have the
power to give any further indemnity, in addition to the indemnity authorized or
contemplated under other subsections of this section, including subsection 6, to
any person who is or was a director, officer, employee or agent, or to any
person who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, provided such further indemnity is either (i)
authorized, directed, or provided for in the articles of incorporation of the
corporation or any duly adopted amendment thereof or (ii) is authorized,
directed, or provided for in any bylaw or agreement of the corporation which has
been adopted by a vote of the shareholders of the corporation, and provided
further that no such indemnity shall indemnify any person from or on account of
such person's conduct which was finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct.
II-2
Nothing in this subsection shall be deemed to limit the power of the corporation
under subsection 6 of this section to enact bylaws or to enter into agreements
without shareholder adoption of the same.
8. The corporation may purchase and maintain insurance on behalf of
any person who 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, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
9. Any provision of this chapter to the contrary notwithstanding,
the provisions of this section shall apply to all existing and new domestic
corporations, including but not limited to banks, trust companies, insurance
companies, building and loan associations, savings bank and safe deposit
companies, mortgage loan companies, corporations formed for benevolent,
religious, scientific or educational purposes and nonprofit corporations.
10. For the purpose of this section, references to "the
corporation"include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation so that any person who
is or was a director, officer, employee or agent of such a constituent
corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same position under
the provisions of this section with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving corporation
in the same capacity.
11. For purposes of this section, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and the term
"serving at the request of the corporation" shall include any service as a
director, officer, employee, or agent of the corporation which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this section.
The officers and directors of KCPL (the "Company") have entered into
indemnification agreements with KCPL indemnifying such officers and directors to
the extent allowed under the above Section 351.355 RSMo (1986). Article XIII of
the Restated Articles of Consolidation of KCPL provides as follows:
ARTICLE THIRTEENTH. (a) Right to Indemnification. Each person who
was or is made a party or is threatened to be made a party to any action, suit
or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of the Company
or is or was an employee of the Company acting within the scope and course of
his or her employment or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust
II-3
or other enterprise, including service with respect to employee benefit plans,
shall be indemnified and held harmless by the Company to the fullest extent
authorized by The Missouri General and Business Corporation Law, as the same
exists or may hereafter be amended, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid to or to be paid in settlement) actually and reasonably
incurred by such person in connection therewith. The Company may in its
discretion by action of its Board of Directors provide indemnification to agents
of the Company as provided for in this ARTICLE THIRTEENTH. Such indemnification
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of his or her heirs, executors and
administrators.
(b) Rights Not Exclusive. The indemnification and other rights provided
by this ARTICLE THIRTEENTH shall not be deemed exclusive of any other rights to
which a person may be entitled under any applicable law, By-laws of the Company,
agreement, vote of shareholders or disinterested Directors or otherwise, both as
to action in such person's official capacity and as to action in any other
capacity while holding the office of Director or officer, and the Company is
hereby expressly authorized by the shareholders of the Company to enter into
agreements with its Directors and officers which provide greater indemnification
rights than that generally provided by The Missouri General and Business
Corporation Law; provided, however, that no such further indemnity shall
indemnify any person from or on account of such Director's or officer's conduct
which was finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct. Any such agreement providing for further
indemnity entered into pursuant to this ARTICLE THIRTEENTH after the date of
approval of this ARTICLE THIRTEENTH by the Company's shareholders need not be
further approved by the shareholders of the Company in order to be fully
effective and enforceable.
(c) Insurance. The Company may purchase and maintain insurance on behalf
of any person who was or is a director, officer, employee or agent of the
Company, or was or is serving at the request of the Company as a Director,
officer, employee or agent of another company, partnership, joint venture, trust
or other enterprise against any liability asserted against or incurred by such
person in any such capacity, or arising out of his or her status as such,
whether or not the Company would have the power to indemnify such person against
such liability under the provisions of this ARTICLE THIRTEENTH.
(d) Amendment. This ARTICLE THIRTEENTH may be hereafter amended or
repealed; however, no amendment or repeal shall reduce, terminate or otherwise
adversely affect the right of a person entitled to obtain indemnification or an
advance of expenses with respect to an action, suit or proceeding that pertains
to or arises out of actions or omissions that occur prior to the later of (a)
the effective date of such amendment or repeal; (b) the expiration date of such
person's then current term of office with, or service for, the Company (provided
such person has a stated term of office or service and completes such term); or
(c) the effective date such person resigns his or her office or terminates his
or her service (provided such person has a stated term of office or service but
resigns prior to the expiration of such term).
Each Declaration of Trust provides that no Trustee, affiliate of any
Trustee, or any officers, directors, shareholders, members, partners, employees,
representatives, or agents of any Trustee, or any employee or agent of the Trust
or its affiliates (each an "Indemnified Person") shall be liable, responsible or
accountable in damages or otherwise to the Trust or any employee or
II-4
agent of the Trust or its affiliates 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 Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by the Declaration 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 act or omission. Each Declaration of Trust also provides that, to the
fullest extent permitted by applicable law, KCPL 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 Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by such Declaration, 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 act or omission. The
Declaration of Trust further provides that, 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 KCPL prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by KCPL 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 for the
underlying cause of action as authorized by such Declaration.
ITEM 16. EXHIBITS
The following exhibits are filed herewith. Documents indicated by an
asterisk (*) are incorporated by reference by the File No. indicated.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
1 Form of purchase agreement for offering of Preferred Securities.
4-a Certificate of Trust of KCPL Financing I, (The Certificate of
Trust for each other Trust are identical except for the name, and
will be filed upon request).
4-b Form of Amended and Restated Declaration of Trust of KCPL
Financing I. (The Declaration of Trust for each other Trust are
identical except for the name, and will be filed upon request).
4-c Indenture between KCPL and The First National Bank of Chicago, as
Trustee.
4-d Form of Supplemental Indenture to be used in connection with the
issuance of each series of Subordinated Debentures.
4-e Form of Preferred Security (included in 4-b).
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4-f Form of Subordinated Debenture (included in 4-d).
4-g Form of Preferred Securities Guarantee Agreement.
4-h *General Mortgage and Deed of Trust dated as of December 1, 1986,
between the Company and UMB Bank, N.A. (formerly United Missouri
Bank of Kansas City, N.A.), Trustee (Exhibit 4-bb to Form 10-K
for the year ended December 31, 1986).
4-i *Third Supplemental Indenture dated as of April 1, 1991, to
Indenture dated as of December 1, 1986 (Exhibit 4-aq to
Registration Statement, Registration No. 33-42187).
4-j *Fourth Supplemental Indenture dated as of February 15, 1992, to
Indenture dated as of December 1, 1986 (Exhibit 4-y to From 10-K
for year ended December 31, 1991).
4-k *Fifth Supplemental Indenture dated as of September 15, 1992, to
Indenture dated as of December 1, 1986 (Exhibit 4-a to Form 10-Q
dated September 30, 1992).
4-l *Sixth Supplemental Indenture dated as of November 1, 1992, to
Indenture dated as of December 1, 1986 (Exhibit 4-z to
Registration Statement, Registration No. 33-54196).
4-m *Seventh Supplemental Indenture dated as of October 1, 1993, to
Indenture dated as of December 1, 1986 (Exhibit 4-a to Form 10-Q
dated September 30, 1993).
4-n *Eighth Supplemental Indenture dated as of December 1, 1993, to
Indenture dated as of December 1, 1986 (Exhibit 4 to Registration
Statement, Registration No. 33-51799).
4-o *Ninth Supplemental Indenture dated as of February 1, 1994, to
Indenture dated as of December 1, 1986 (exhibit 4-h to Form 10-K
for year ended December 31, 1993).
4-p *Tenth Supplemental Indenture dated as of November 1, 1994, to
Indenture dated as of December 1, 1986 (Exhibit 4-i to Form 10-K
for year ended December 31, 1994).
4-q *Note Indenture dated as of November 1, 1994, between the Company
and the Bank of New York creating the Notes (Exhibit 4-j to
Registration Statement, Registration No. 33-56309).
4-r *Note Indenture dated as of November 15, 1992, between the
Company an The Bank of New York creating the Notes (Exhibit 4-aa
to Registration Statement, Registration No. 33-54196).
II-6
4-s *Note Indenture dated as of February 15, 1992, between the
Company and The Bank of New York (Exhibit 4-bb to Registration
Statement, Registration No. 33-45736).
4-t *Note Indenture dated as of April 1, 1991, between the Company
and The Bank of New York (Exhibit 4-bb to Registration Statement,
Registration No. 33-42187).
4-u *Form of Note Indenture dated as of December 1, 1996, between the
Company and The Bank of New York creating the Notes.
4-v *Resolution of Board of Directors Establishing 3.80% Cumulative
Preferred Stock (Exhibit 2-R to Registration Statement,
Registration No. 2-402339).
4-w *Resolution of Board of Directors Establishing 4% Cumulative
Preferred Stock (Exhibit 2-S to Registration Statement,
Registration No. 2-40239).
4-x *Resolution of Board of Directors Establishing 4.50% Cumulative
Preferred Stock (Exhibit 2-T to Registration Statement,
Registration No. 2-40239).
4-y *Resolution of Board of Directors Establishing 4.20% Cumulative
Preferred Stock (Exhibit 2-U to Registration Statement,
Registration No. 2-40239).
4-z *Resolution of Board of Directors Establishing 4.35% Cumulative
Preferred Stock (Exhibit 2-V to Registration Statement,
Registration No. 2-40239).
4-aa *Certificate of Designation of Board of Directors Establishing
the $50,000,000 Cumulative No Par Preferred Stock, Auction Series
A (Exhibit 4-a to Form 10-Q dated March 31, 1992).
5-a Opinion of Pepper, Hamilton & Scheetz re legality of Preferred
Securities.
5-b Opinion of J.S. Latz, Senior Vice President and Chief Legal
Officer of KCPL, re legality of Subordinated Debentures and the
Preferred Securities Guarantees.
8 Opinion of Sidley & Austin re tax matters.
12 Statement re Computation of Ratios of Earnings to Fixed Charges
and Ratios of Earnings to Fixed Charges and Preferred Dividend
Requirements.
23-a Consent of Independent Accountants -- Coopers & Lybrand L.L.P.
23-b Consent of Pepper, Hamilton & Scheetz (included in 5-a).
II-7
23-c Consent of J.S. Latz (included in 5-b).
23-d Consent of Sidley & Austin (included in 8).
24 Powers of attorney.
25-a Statement of eligibility and qualification on Form T-1 of The
First National Bank of Chicago, as Debt Trustee under the
Indenture.
25-b Statements of Eligibility of The First National Bank of Chicago
as Trustee under the Amended and Restated Declaration of Trust of
KCPL Financing I and under the Preferred Security Guarantee of
KCPL for the benefit of the holders of Preferred Securities of
KCPL Financing I.
25-c Statements of Eligibility of The First National Bank of Chicago
as Trustee under the Amended and Restated Declaration of Trust of
KCPL Financing II and under the Preferred Security Guarantee of
KCPL for the benefit of the holders of Preferred Securities of
KCPL Financing II.
25-d Statements of Eligibility of The First National Bank of Chicago
as Trustee under the Amended and Restated Declaration of Trust of
KCPL Financing III and under the Preferred Security Guarantee of
KCPL for the benefit of the holders of Preferred Securities of
KCPL Financing III.
ITEM 17. UNDERTAKINGS.
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:
a. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
b. To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
II-8
c. To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such 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.
Provided, however, that (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those items
is contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference to this registration statement.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
KCPL'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
as that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions 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 their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by them is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Kansas City
Power & Light Company, on behalf of each of the Registrants, 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
Kansas City, and State of Missouri as of this 17th day of December, 1996.
KANSAS CITY POWER & LIGHT COMPANY
By /s/ Drue Jennings
------------------------------
(Drue Jennings)
Chairman of the Board and
Chief Executive Officer
II-10
Each person whose signature appears below hereby constitutes and appoints
Drue Jennings and _______________, or either of them, acting alone, as his true
and lawful attorney-in-fact, with full power and authority to execute in the
name, place and stead of each such person in any and all capacities and to file,
an amendment or amendments to the Registration Statement (and all exhibits
thereto) and any documents relating thereto, which amendments may make such
changes in the Registration Statement as said officer or officers so acting
deem(s) advisable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board and )
/s/Drue Jennings Chief Executive )
- ----------------------------- Officer (Principal Executive )
(Drue Jennings) Officer) )
)
/s/B. J. Beaudoin Executive Vice President )
- ----------------------------- and Chief Financial Officer )
(B. J. Beaudoin) (Principal Financial Officer) )
)
/s/Neil Roadman Controller (Principal )
- ----------------------------- Accounting Officer) )
(Neil Roadman )
)
*David L. Bodde Director )
- ----------------------------- )
(David L. Bodde) )
)
*William H. Clark Director )
- ----------------------------- )
(William H. Clark) )
)
*Robert J. Dineen Director ) December 17, 1996
- ----------------------------- )
(Robert J. Dineen) )
)
*Arthur J. Doyle Director )
- ----------------------------- )
(Arthur J. Doyle) )
)
*W. Thomas Grant II Director )
- ----------------------------- )
(W. Thomas Grant II) )
)
*George E. Nettels, Jr. Director )
- ----------------------------- )
(George E. Nettels, Jr.) )
)
*Linda Hood Talbott Director )
- ----------------------------- )
(Linda Hood Talbott) )
)
*Robert H. West Director )
- ----------------------------- )
(Robert H. West) )
II-11
*By /s/Drue Jennings
---------------------
(Drue Jennings)
Attorney-in-fact
KCPL FINANCING I
(Registrant)
By: /s/ Andrea F. Bielsker
-----------------------------
Trustee
KCPL FINANCING II
(Registrant)
By: /s/ Andrea F. Bielsker
-----------------------------
Trustee
KCPL FINANCING III
(Registrant)
By: /s/ Andrea F. Bielsker
-----------------------------
Trustee
II-12
Exhibit 1
_____ Preferred Securities
KCPL FINANCING _
(a Delaware Trust)
____% Trust Originated Preferred Securities(sm)
("TOPrS(sm)")
(Liquidation Amount of $25 Per Preferred Security)
PURCHASE AGREEMENT
_______, 199_
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
KCPL Financing _ (the "Trust"), a statutory
business trust organized under the Business Trust Act (the
"Delaware Act") of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. Section 3801 et seq.),
and Kansas City Power & Light Company, a Missouri
corporation (the "Company" and, together with the Trust, the
"Offerors") confirm their agreement (the "Agreement") with
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other
Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section
10 hereof), for whom Merrill Lynch is acting as
representative (in such capacity, Merrill Lynch shall
hereinafter be referred to as the "Representative"), with
respect to the sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the
respective numbers of _____ % Trust Originated Preferred
Securities (liquidation amount of $25 per preferred
security) of the Trust ("Preferred Securities") set forth in
said Schedule A. The Preferred Securities will be
guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement"), dated as of _________ , 199_, between
the Company and The First National Bank of Chicago, as
trustee (the "Guarantee Trustee"), and entitled to the
benefits of certain backup undertakings described in the
Prospectus with respect to the Company's agreement pursuant
to the Supplemental Indenture (as defined herein) to pay all
expenses relating to administration of the Trust (the
"Undertakings"). The Preferred Securities and the related
Preferred Securities Guarantee are referred to herein as the
"Securities".
The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333- ___________ ) and a related
prospectus and preliminary prospectus supplement for the
registration under the Securities Act of 1933 (the "1933
Act") of up to a combination of $300,000,000 of (i)
preferred securities, including the Preferred Securities,
(ii) guarantees of the preferred securities, including the
Preferred Securities Guarantee, and (iii) unsecured
subordinated debentures, including the Subordinated
Debentures (as defined below), to be issued and sold by the
Company to the trusts, including the Trust, which issue the
preferred securities, have filed such amendments thereto, if
any, and such amended prospectuses and amended preliminary
prospectus supplements as may have been required to the date
hereof, and will file such additional amendments thereto and
such amended prospectuses and amended prospectus supplements
as may hereafter be required. Such registration statement
(as amended, if applicable) and the prospectus constituting
a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act
and the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")),
as from time to time amended or supplemented pursuant to the
1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act"), or otherwise, including the prospectus
supplement (the "Prospectus Supplement") required to be
filed by the Offerors pursuant to Rule 424(b) of the 1933
Act Regulations with respect to the Preferred Securities
(but excluding any prospectus supplement filed by the
Company and any trust other than the Trust) are hereinafter
referred to as the "Registration Statement" and the
"Prospectus", respectively, except that, if any revised
prospectus or prospectus supplement shall be provided to the
Underwriters by the Offerors for use in connection with the
offering of the Preferred Securities which differs from the
Prospectus (whether or not such revised prospectus is
required to be filed by the Offerors pursuant to Rule 424(b)
of the 1933 Act Regulations), the term "Prospectus" shall
refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. All
references in this Agreement to financial statements and
schedules and other information that is "contained,"
"included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements
and schedules and other information that are or are deemed
to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the
1934 Act that is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus,
as the case may be.
The Offerors understand that the Underwriters
propose to make a public offering of the Securities as soon
as the Representative deems advisable. The entire proceeds
from the sale of the Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") and will be
used by the Trust to purchase the $ ___________ of
____% junior subordinated deferrable interest debentures
(the "Subordinated Debentures") issued by the Company. The
Preferred Securities and the Common Securities will be
issued pursuant to the amended and restated declaration of
trust of the Trust, dated as of _______________, 199_ (the
"Declaration"), among the Company, as Sponsor, John J.
DeStefano and Andrea F. Bielsker (the "Regular Trustees"),
The First National Bank of Chicago, a national banking
association, as property trustee (the "Property Trustee"),
and First Chicago Delaware Inc., a Delaware corporation (the
"Delaware Trustee and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), and the holders
from time to time of undivided beneficial interests in the
assets of the Trust. The Subordinated Debentures will be
issued pursuant to an indenture, dated as of _________, 199_
(the "Base Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Debt Trustee"),
and a supplemental indenture to the Base Indenture, dated as
of __________ , 199_ (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company
and the Debt Trustee.
Section 1. Representations and Warranties
(a) The Offerors jointly and severally represent
and warrant to each Underwriter as of the date hereof as
follows:
(i) The Registration Statement has become
effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration
Statement is currently in effect and no proceedings for
that purpose are pending or threatened by the
Commission. At the time the Registration Statement
became effective and on the date hereof, the
Registration Statement complied and complies in all
material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the Trust Indenture
Act of 1939, as amended (the "1939 Act") and the rules
and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not and does 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. The Prospectus, (unless the term
"Prospectus" refers to a prospectus that has been
provided to the Underwriters by the Trust for use in
connection with the offering of the Securities and that
differs from the Prospectus, including the Prospectus
Supplement, in which case, at the time it is first
provided to the Underwriters for such use) at the
Closing Time referred to in Section 2 hereof will not
include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the representations and warranties in
this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with
information furnished to the Offerors in writing by any
Underwriter through Merrill Lynch expressly for use in
the Registration Statement or Prospectus.
(ii) The documents incorporated or deemed to
be incorporated by reference in the Registration
Statement or Prospectus, at the time they were or
hereafter are filed with the Commission, complied and
will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act
Regulations"), as applicable, and, at the time the
Registration Statement and any amendments thereto
became effective and at the Closing Time, did not and
will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, however, that the
representations and warranties in this subsection shall
not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to
the Offerors in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration
Statement or Prospectus.
(iii) The accountants who certified the
financial statements and supporting schedules included
in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The financial statements included in
the Registration Statement and the Prospectus present
fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods
specified; except as otherwise stated in the
Registration Statement, said financial statements have
been prepared in conformity with generally accepted
accounting principles applied on a consistent basis;
the Company's ratios of earnings to fixed charges and
ratios of earnings to fixed charges and preferred
dividend requirements (actual and, if any, pro forma)
included in the Prospectus under the caption "Ratios of
Earnings to Fixed Charges and Earnings to Fixed Charges
and Preferred Dividend Requirements" and in Exhibit 12
to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the
Commission and the supporting schedules included in the
Registration Statement present fairly the information
required to be stated therein; and the selected
financial data included or incorporated by reference in
the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent
with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement. [The Prospectus contains all
pro forma financial statements and other pro forma
financial information required to be included therein
and such information presents fairly the information
shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to
pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and,
in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to
therein.]
(v) Each of the Offerors meets, and at the
respective times of commencement and consummation of
the offering of the Securities will meet, the
registrant requirements for use of Form S-3 under the
1933 Act and the 1933 Act Regulations.
(vi) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise or
of the Trust, whether or not arising in the ordinary
course of business, and (B) there have been no
transactions entered into by the Trust or by the
Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material
with respect to the Trust or the Company, considered as
one enterprise.
(vii) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Missouri with
corporate power and authority to own, lease and operate
its properties and to conduct its business as described
in the Registration Statement and Prospectus, to enter
into and perform its obligations under this Agreement,
the Declaration, the Indenture and the Preferred
Securities Guarantee Agreement and to purchase, own,
and hold the Common Securities issued by the Trust; and
the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure so to qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company.
(viii) The Company has no significant
subsidiaries, as "significant subsidiary" is defined in
Rule 405 of Regulation C of the 1933 Act Regulations.
(ix) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Act with the power and authority to
own property and to conduct its business as described
in the Registration Statement and Prospectus and to
enter into and perform its obligations under this
Agreement, the Preferred Securities, the Common
Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign company and
is in good standing in any other jurisdiction in which
such qualification is necessary, except to the extent
that the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust;
the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus;
the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not
as an association taxable as a corporation; and the
Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally
accepted accounting principles.
(x) The Common Securities have been duly
authorized by the Declaration and, when issued and
delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the
terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the
Trust and will conform to all statements relating
thereto contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or
other similar rights; and at the Closing Time all of
the issued and outstanding Common Securities of the
Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(xi) This Agreement has been duly
authorized, executed and delivered by each of the
Offerors.
(xii) The Declaration has been duly
authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the
Company and the Regular Trustees, and assuming due
authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware
Trustee, the Declaration will, at the Closing Time, be
a valid and binding obligation of the Company and the
Regular Trustees, enforceable against the Company and
the Regular Trustees in accordance with its terms,
except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors
rights generally or by general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy
Exceptions") and will conform to all statements
relating thereto in the Prospectus; and the Declaration
has been duly qualified under the 1939 Act.
(xiii) The Preferred Securities Guarantee
Agreement has been duly authorized by the Company and,
at the Closing Time will have been duly executed and
delivered by the Company, and, assuming due
authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will
constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions,
and the Preferred Security Guarantee and the Preferred
Securities Guarantee Agreement will conform to all
statements relating thereto contained in the
Prospectus; and the Preferred Securities Guarantee
Agreement, has been duly qualified under the 1939 Act.
(xiv) The Preferred Securities have been
duly authorized by the Declaration and, when issued and
delivered pursuant to this Agreement against payment of
the consideration set forth in Section 2, will be
validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to
the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus
and such description conforms to the provisions of the
Declaration; the issuance of the Preferred Securities
is not subject to preemptive or other similar rights;
and (subject to the terms of the Declaration) holders
of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for
profit.
(xv) The Indenture has been duly authorized
by the Company and, at the Closing Time will have been
duly executed and delivered by the Company, will
constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions;
the Indenture will conform to all statements relating
thereto contained in the Prospectus; and the Indenture
has been duly qualified under the 1939 Act.
(xvi) The Subordinated Debentures have been
duly authorized by the Company and, at the Closing
Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as
described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against
the Company in accordance with their terms except to
the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions, will be in the form
contemplated by, and entitled to the benefits of, the
Indenture and will conform to all statements relating
thereto in the Prospectus.
(xvii) The Company's obligations under the
Preferred Securities Guarantee are subordinate and
junior in right of payment to all liabilities of the
Company and are pari passu with the most senior
preferred stock issued by the Company.
(xviii) The Subordinated Debentures are
subordinated and junior in right of payment to all
"senior indebtedness" (as defined in the Supplemental
Indenture) of the Company.
(xix) Each of the Regular Trustees of the
Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Declaration; the Declaration has been duly executed and
delivered by the Regular Trustees and is a valid and
binding obligation of each Regular Trustee, enforceable
against such Regular Trustee in accordance with its
terms except to the extent that enforcement thereof may
be limited by the Bankruptcy Exceptions.
(xx) None of the Offerors is, and following
the consummation of the transactions contemplated
hereby will be, an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxi) The Company is not in violation of its
charter or by-laws; the Trust is not in violation of
the Declaration or its certificate of trust filed with
the State of Delaware on _______ , 1996 (the
"Certificate of Trust"); neither the Company nor the
Trust is in default in the performance or observance of
any material obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company or the Trust is a party
or by which it or either of them may be bound, or to
which any of the property or assets of the Company or
the Trust is subject, except for such defaults that
would not have a material adverse effect on the
condition (financial or otherwise), earnings, business
affairs or business prospects of the Trust or the
Company; and the execution, delivery and performance of
this Agreement, the Declaration, the Preferred
Securities, the Common Securities, the Indenture, the
Subordinated Debentures, the Preferred Securities
Guarantee Agreement and the Preferred Securities
Guarantee and the consummation of the transactions
contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder
and thereunder have been duly authorized by all
necessary action (corporate or otherwise) on the part
of the Offerors and do not and will not result in any
violation of the charter or by-laws of the Company, or
the Declaration or Certificate of Trust and do not and
will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets
of the Trust or the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Trust or the
Company is a party or by which it may be bound or to
which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Trust or the Company), or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or
administrative agency or other governmental body having
jurisdiction over the Trust or the Company or any of
their respective properties.
(xxii) Except as disclosed in the
Prospectus, there is no action, suit or proceeding
before or by any government, governmental
instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Trust or the
Company, threatened against or affecting the Trust or
the Company that is required to be disclosed in the
Prospectus or that could result in any material adverse
change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Trust or the Company, or that could materially and
adversely affect the properties or assets of the Trust
or the Company, or that could adversely affect the
consummation of the transactions contemplated in this
Agreement; the aggregate of all pending legal or
governmental proceedings that are not described in the
Prospectus to which the Trust or the Company is a party
or which affect any of their respective properties,
including ordinary routine litigation incidental to the
business of the Trust or the Company, would not have a
material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business
prospects of the Trust or the Company, considered as
one enterprise; and there are no contracts or documents
of the Company or the Trust that are required to be
filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations that have not
been so filed.
(xxiii) The Company has made all necessary
filings and obtained all necessary consents or
approvals from the Missouri Public Service Commission
in connection with the issuance and sale of or the
issuance and sale of the Subordinated Debentures or the
Preferred Securities Guarantee hereunder, and no
consent, approval, authorization, order or decree of
any other court or governmental agency or body is
required for the consummation by the Company of the
transactions contemplated by this Agreement or the
issuance and sale of the Common Securities or the
offering of the Preferred Securities, except such as
may be required under the 1933 Act, the 1939 Act, the
1933 Act Regulations or state securities ("Blue Sky")
laws.
(xxiv) The Company is a public utility duly
authorized by its Restated Articles of Consolidation,
as amended, under which it was organized to carry on
the business in which it is engaged as set forth in the
Prospectus; and the Company has the legal right to
function and operate as an electric utility in the
States of Missouri and Kansas.
(xxv) The Company holds valid and subsisting
franchises, licenses and permits authorizing it to
carry on the respective utility businesses in which it
is engaged in the territory from which substantially
all of its gross operating revenue is derived.
(b) Any certificate signed by any officer of the
Company delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the
matters covered thereby.
Section 2. Sale and Delivery to Underwriters;
Closing.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price $________ per security, the
number of Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional
number of Preferred Securities that such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof.
The initial public offering price per Preferred
Security shall be $_________. 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 used to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay
at the Closing Time to the Representative, for the accounts
of the several Underwriters, a commission of $______ per
Preferred Security; provided, however, that the commission
per Preferred Security for sales of 10,000 or more Preferred
Securities to a single purchaser shall be $_______.
(b) Payment of the purchase price for the
Preferred Securities shall be made at the office of Sidley &
Austin, 875 Third Avenue, New York, New York 10022, or at
such other place as shall be agreed upon by the
Representative and the Trust, at 10:00 A.M. New York time on
the third business day (unless postponed in accordance with
the provisions of Section 10) after the date hereof, or such
other time not later than ten business days after such date
as shall be agreed upon by the Representative, the Trust,
and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Payment shall be made
to the Trust by wire transfer of same day funds to an
account designated by the Trust, against delivery to the
Representative for the respective accounts of the
Underwriters of certificates for the Preferred Securities to
be purchased by them. At the Closing Time the Trust shall
deliver the Preferred Securities to the Representative
through the facility of The Depository Trust Company for the
account of each Underwriter against payment to or upon the
order of the Trust of the purchase price. It is understood
that each Underwriter has authorized the Representative, for
its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Preferred Securities
which it has agreed to purchase. Merrill Lynch,
individually and not as Representative of the Underwriters,
may (but shall not be obligated to) make payment of the
purchase price for the Preferred Securities to be purchased
by any Underwriter whose check has not been received by the
Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
At the Closing Time, the Company will pay, or
cause to be paid, the commission payable at such time to the
Underwriters under Section 2 hereof by wire transfer of same
day funds to an account designated by the Representative.
Section 3. Covenants of the Offerors. Each of
the Offerors jointly and severally covenant with each
Underwriter as follows:
(a) The Offerors will notify the
Representative immediately, and confirm the notice
in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of
the receipt of any comments from the Commission,
(iii) of any request by the Commission for any
amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose.
The Offerors will make every reasonable effort to
prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Offerors will give the
Representative notice of their intention to file
or prepare (i) any amendment to the Registration
Statement or (ii) any amendment or supplement to
the Prospectus (including any revised prospectus
which the Offerors propose for use by the
Underwriters in connection with the offering of
the Preferred Securities which differs from the
prospectus on file at the Commission at the date
hereof, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations), and will furnish the
Representative with copies of any such amendment
or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be,
and will not file any such amendment or supplement
or use any such prospectus to which the
Representative or counsel for the Underwriters
shall reasonably object. Subject to the
foregoing, the Offerors will promptly prepare the
supplement to Prospectus Supplement to reflect the
terms of the Preferred Securities and the terms of
the offering. The Offerors will file the
Prospectus Supplement 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 this
Agreement.
(c) The Offerors will deliver to
the Representative as many signed copies of the
Registration Statement as reasonably requested
(including exhibits filed therewith or
incorporated by reference therein and documents
incorporated or deemed to be incorporated by
reference therein) as the Representative may
reasonably request and will also deliver to the
Representative a conformed copy of the
Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each
of the Underwriters.
(d) The Offerors will furnish to
each Underwriter, from time to time during the
period when the Prospectus is required to be
delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933
Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) If at any time when the
Prospectus is required by the 1933 Act to be
delivered in connection with sales of the
Preferred Securities, any event shall occur as a
result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel to the
Company and the Trust, to amend or supplement the
Prospectus in order to make the Prospectus not
misleading in the light of the circumstances
existing at the time it is to be delivered to a
purchaser, or if it shall be necessary at any such
time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933
Act Regulations, the Offerors will promptly
prepare and file with the Commission subject to
paragraph (b) above such amendment or supplement
as may be necessary to correct such untrue
statement or omission or to make the Registration
Statement or the Prospectus comply with such
requirements; and the Offerors will furnish to the
Underwriters a reasonable number of copies of such
amendment or supplement.
(f) The Offerors will endeavor, in
cooperation with the Underwriters, to qualify the
Preferred Securities (and the Preferred Securities
Guarantee) and the Subordinated Debentures for
offering and sale under the applicable securities
laws of such states and the other jurisdictions of
the United States as the Representative may
designate; provided, however, that none of the
Offerors shall be obligated to qualify as a
foreign corporation in any jurisdiction in which
it is not so qualified.
(g) The Trust will make generally
available to its security holders and to the
Representative as soon as practicable but not
later than 90 days after the close of the period
covered thereby, an earnings statement of the
Company (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the
first day of the Trust's fiscal quarter next
following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(h) For a period of five years
after the Closing Time, the Company will furnish
to the Representative and, upon request, to each
Underwriter, copies of all annual reports,
quarterly reports and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by
the Commission, and such other documents, reports
and information as shall be furnished by the
Company to its stockholders or security holders
generally.
(i) The Offerors will use best
efforts to effect the listing of the Preferred
Securities (including the Preferred Securities
Guarantee with respect thereto) on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Subordinated Debentures, the Company
will use its best efforts to effect the listing of
the Subordinated Debentures on the exchange on
which the Preferred Securities were then listed.
(j) During a period of 30 days
from the date hereof, neither the Trust nor the
Company will, without the Representative's prior
written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of,
or otherwise dispose of, any Preferred Securities,
any security convertible into or exchangeable into
or exercisable for Preferred Securities or the
Subordinated Debentures or any debt securities
substantially similar to the Subordinated
Debentures or equity securities substantially
similar to the Preferred Securities (except for
the Subordinated Debentures and the Preferred
Securities issued pursuant to this Agreement).
Section 4. Payment of Expenses. The Company will
pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including, but
not limited to, (i) the printing and filing of the
Registration Statement as originally filed and of each
amendment thereto, (ii) the printing of this Agreement,
(iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the
Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (v) the
qualification of the Preferred Securities, the Preferred
Securities Guarantee and the Subordinated Debentures under
securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue
sky survey and any legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto, of each preliminary prospectus, and of
the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of
copies of any blue sky survey and any legal investment
survey, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc. (ix) the fees and expenses of the
Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the
Indenture and the Subordinated Debentures; (x) the fees and
expenses of the Property Trustee, the Delaware Trustee and
the Guarantee Trustee, including the fees and disbursements
of counsel for the Property Trustee in connection with the
Declaration and the Certificate of Trust; (xi) any fees
payable in connection with the rating of the Preferred
Securities and Subordinated Debentures, (xii) the fees and
expenses incurred in connection with the listing of the
Preferred Securities (and the related Preferred Securities
Guarantee) and, if applicable, the Subordinated Debentures
on the New York Stock Exchange, (xiii) the cost and charges
of any transfer agent or registrar, (xiv) the cost of
qualifying the Preferred Securities with The Depository
Trust Company, and (xv) fees and disbursements of Sidley &
Austin, counsel for the Underwriters, incurred through the
date on which the Registration Statement is declared
effective under the 1933 Act, or the date on which any post-
effective amendment to the Registration Statement is
declared so effective prior to the date of the Prospectus
Supplement, but the Underwriters shall pay all fees and
expenses of such counsel incurred after such date, and all
transfer taxes, if any, on the resale of Preferred
Securities and any advertising expenses connected with any
offers they may make to sell Preferred Securities.
If this Agreement is terminated by the
Representative in accordance with the provisions of Section
5 or Section 9 hereof, the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters'
Obligations. The obligations of the Underwriters hereunder
are subject to the accuracy of the representations and
warranties of the Offerors herein contained, to the
performance by the Offerors of their obligations hereunder,
and to the following further conditions:
(a) At Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission. The Prospectus Supplement
shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with
Section 3(b) and prior to Closing Time the Offerors shall
have provided evidence satisfactory to the Representative of
such timely filing.
(b) At Closing Time the Representative shall have
received:
(1) The favorable opinion, dated as of
Closing Time, of Jeanie Sell Latz, Senior Vice
President and Chief Legal Officer of the Company, in
form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly
incorporated and is validly existing in good
standing under the laws of the State of Missouri
and is duly qualified as a foreign corporation to
do business in the State of Kansas.
(ii) The Company is a public
utility duly authorized by its Restated Articles
of Consolidation, as amended, under which it was
organized to carry on the business in which it is
engaged as set forth in the Prospectus; and the
Company has the legal right to function and
operate as an electric utility in the States of
Missouri and Kansas;
(iii) The statements in the
Prospectus under the captions "Risk Factors,"
"Description of the Preferred Securities,"
"Description of the Preferred Securities
Guarantee," "The Trusts," "Description of the
Subordinated Debentures," "Effect of Obligations
under the Subordinated Debentures and the
Preferred Securities Guarantee," insofar as they
constitute matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, have been reviewed by such counsel
and fairly present the information disclosed
therein in all material respects.
(iv) The Company holds valid and
subsisting franchises, licenses and permits
authorizing it to carry on the respective utility
businesses in which it is engaged in the territory
from which substantially all of its gross
operating revenue is derived.
(v) The Registration Statement is
effective under the 1933 Act and, to the best of
such counsel's knowledge and information, no stop
order suspending the effectiveness of the
Registration Statement has been issued under the
1933 Act, and no proceedings therefor have been
initiated or threatened by the Commission.
(vi) The Registration Statement and the
Prospectus and each amendment or supplement
thereto (in each case, other than the financial
statements and the notes thereto, the financial
schedules, and any other financial and statistical
data included or incorporated by reference
therein, as to which such counsel need express no
belief), excluding the documents incorporated by
reference therein, complied as to form in all
material respects with the requirements of the
1933 Act and the 1933 Act Regulations; and the
Declaration, the Indenture and the Preferred
Securities Guarantee Agreement filed with the
Commission as part of the Registration Statement
complied as to form in all material respects with
the requirements of the 1939 Act and the 1939 Act
Regulations.
(vii) Each of the documents
incorporated by reference in the Registration
Statement or the Prospectus at the time they were
filed or last amended (other than the financial
statements and the notes thereto, the financial
schedules, and any other financial or statistical
data included or incorporated by reference
therein, as to which such counsel need express no
belief) complied as to form in all material
respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act, and the
1934 Act Regulations, as applicable.
(viii) Each of the Offerors meets the
registrant requirements for use of Form S-3 under
the 1933 Act Regulations.
(ix) The Common Securities, the
Preferred Securities, the Subordinated Debentures,
the Preferred Securities Guarantee, the
Declaration, the Indenture and the Preferred
Securities Guarantee Agreement conform in all
material respects to all statements relating
thereto contained in the Prospectus.
(x) To the best of such counsel's
knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments or documents required to be described
or referred to in the Registration Statement or to
be filed as exhibits thereto other than those
described or referred to therein or filed or
incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are
correct, and no default exists in the due
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instruments
described, referred to, filed or incorporated by
reference.
(xi) All of the issued and outstanding
Common Securities of the Trust are directly owned
by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(xii) This Agreement has been duly
authorized, executed and delivered by each of the
Trust and the Company.
(xiii) The Declaration has been duly
qualified under the 1939 Act.
(xiv) The Preferred Guarantee Agreement
has been duly authorized, executed and delivered
by the Company and, assuming it is duly
authorized, executed, and delivered by the
Guarantee Trustee, is a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms, except to
the extent that enforcement thereof may be limited
by Bankruptcy Exceptions; and the Preferred
Securities Guarantee Agreement has been duly
qualified under the 1939 Act.
(xv) The Indenture has been duly
executed and delivered by the Company and,
assuming due authorization, execution, and
delivery thereof by the Debt Trustee, is a valid
and binding obligation of the Company, enforceable
against the Company in accordance with its terms,
except to the extent that enforcement thereof may
be limited by the Bankruptcy Exceptions; and the
Indenture has been duly qualified under the 1939
Act.
(xvi) The Subordinated Debentures are
in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by
the Company and, when authenticated by the Debt
Trustee in the manner provided for in the
Indenture and delivered against payment therefor,
will constitute valid and binding obligations of
the Company, enforceable against the Company in
accordance with their terms, except to the extent
that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xvii) The Subordinated Debentures are
subordinate and junior in right of payment to all
"senior indebtedness" (as defined in the
Supplemental Indenture) of the Company.
(xviii) The Company's obligations under
the Preferred Securities Guarantee are subordinate
and junior in right of payment to all liabilities
of the Company and are pari passu with the most
senior preferred stock issued by the Company.
(xix) Neither the Company nor the Trust
is an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the 1940 Act.
(xx) The Declaration has been duly
authorized, executed and delivered by the Company
and each of the Regular Trustees and constitutes a
valid and binding obligation of the Company and
each of the Regular Trustees, enforceable against
the Company and each of the Regular Trustees in
accordance with its terms, except to the extent
that the enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xxi) There are no legal or
governmental proceedings pending or, to the best
of such counsel's knowledge, threatened which are
required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending
legal or governmental proceedings to which the
Company is a party or of which any of its property
is the subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business of the
Company, are, considered in the aggregate, not
material to the financial condition of the
Company.
(xxii) The Company has made all
necessary filings and obtained all necessary
consents or approvals from the Missouri Public
Service Commission in connection with the issuance
and sale of the Subordinated Debentures or the
Preferred Securities Guarantee pursuant to this
Agreement, and no consent, approval,
authorization, order or decree of any other court
or governmental agency or body is required for the
consummation by the Company of the transactions
contemplated by this Agreement or for the issuance
and sale of the Common Securities or the offering
of the Preferred Securities, except such as may be
required under the 1933 Act, the 1939 Act, the
1933 Act Regulations or Blue Sky laws.
(xxiii) To the best of such counsel's
knowledge, the Company is not in violation of its
Restated Articles of Consolidation, as amended, or
its by-laws or in default in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note or lease
to which it is a party or by which it or any of
its properties may be bound. The execution,
delivery and performance of this Agreement, the
Declaration, the Preferred Securities, the Common
Securities, the Indenture, the Subordinated
Debentures, the Preferred Securities Guarantee
Agreement, and the Preferred Securities Guarantee
and the consummation of the transactions
contemplated herein and therein, and the
compliance by each of the Offerors with their
respective obligations hereunder, will not
conflict with or constitute a breach of, or
default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such
counsel and to which the Company is a party or by
which it may be bound or to which any of the
property or assets of the Company is subject, or
any law, administrative regulation or
administrative or court decree known to such
counsel to be applicable to the Company of any
court or governmental agency, authority or body or
any arbitrator having jurisdiction over the
Company; nor will such action result in any
violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws
of the Company.
(xxiv) The Declaration constitutes a
valid and binding obligation of the Company and
the Regular Trustees and is enforceable against
the Company and the Regular Trustee in accordance
with its terms, except to the extent that the
enforcement thereof may be limited by the
Bankruptcy Exceptions.
Such letter shall additionally state that
nothing has come to the attention of such counsel
that would lead such counsel to believe that the
Registration Statement, at the time it became effective,
and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the
effectiveness of the Registration Statement, then
at the time such amendment became effective or at
the time of the most recent such filing, and at
the date hereof, contains or contained an untrue
statement of a material fact or omits or omitted
to state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that the Prospectus as
amended or supplemented at the time it was filed
or mailed for filing pursuant to Rule 424(b) under
the 1933 Act contained or as amended or
supplemented at the Closing Time contains any
untrue statement of a material fact or omitted or
omits to state a material fact necessary in order
to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
Such opinion shall be to such
further effect with respect to other legal matters
relating to this Agreement and the sale of the
Securities hereunder as counsel for the
Underwriters may reasonably request. In giving
such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions
other than the law of the State of Missouri, the
federal law of the United States and the General
Corporation Law and the Business Trust Act of the
State of Delaware, upon opinions of other counsel,
who shall be counsel satisfactory to counsel for
the Underwriters, in which case the opinion shall
state that such counsel believe that you and
counsel for the Underwriters are entitled to so
rely. Such counsel may also state that, insofar
as such opinion involves factual matters, such
counsel has relied to the extent such counsel
deems proper, upon representations of officers of
the Company and certificates of public officials;
provided that such certificates have been
delivered to the Underwriters.
(2) The favorable opinion, dated as of
Closing Time, of Pepper, Hamilton & Scheetz, special
counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Trust has been duly
created and is validly existing in good standing
as a business trust under the Delaware Act; all
filings required under the laws of the State of
Delaware with respect to the formation and valid
existence of the Trust as a business trust have
been made; the Trust has all necessary power and
authority to own property and to conduct its
business as described in the Registration
Statement and the Prospectus and to enter into and
perform its obligations under this Agreement, the
Preferred Securities and the Common Securities;
the Trust is duly qualified and in good standing
as a foreign company in any other jurisdiction in
which such qualification is necessary, except to
the extent that the failure to so qualify or be in
good standing would not have a material adverse
effect on the Trust; and the Trust is not a party
to or otherwise bound by any agreement known to
such counsel other than those described in the
Prospectus.
(ii) The Common Securities have
been duly authorized for issuance and, when
issued, delivered and paid for in accordance with
the Declaration and as described in the
Prospectus, will be validly issued and fully paid
and non-assessable undivided beneficial interests
in the assets of the Trust, and the issuance of
the Common Securities is not subject to preemptive
or other similar rights.
(iii) The Preferred Securities
have been duly authorized for issuance and, when
issued, delivered and paid for in accordance with
this Agreement, will be validly issued, fully paid
and non-assessable undivided beneficial interests
in the assets of the Trust; the holders of the
Preferred Securities will be entitled to the same
limitation of personal liability under Delaware
law as is extended to stockholders of private
corporations for profit; and the issuance of the
preferred Securities is not subject to preemptive
or other similar rights. Such counsel may note
that the Preferred Securities holders may be
obligated, pursuant to the Declaration, to (a)
provide indemnity and/or security in connection
with and pay taxes or governmental charges arising
from transfers of Preferred Securities and the
issuance of replacement Preferred Securities, and
(b) provide security and indemnity in connection
with requests of or directions to the Property
Trustee to exercise its rights and powers under
the Declaration.
(iv) The execution and delivery by
the Trust of this Agreement and the performance by
the Trust of its obligations hereunder have been
duly authorized by all necessary action on the
part of the Trust.
(v) The issuance and sale by the
Trust of the Preferred Securities and the Common
Securities, the purchase by the Trust of the
Subordinated Debentures, the execution, delivery
and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions
contemplated hereby and compliance by the Trust
with its obligations hereunder will not violate
(A) any of the provisions of the Certificate of
Trust or the Declaration or (B) any applicable
Delaware law or administrative regulation.
(3) The favorable opinion, dated as of
Closing Time, of the Law Department of The First
National Bank of Chicago, counsel for the Property
Trustee and the Guarantee Trustee, in form and
substance satisfactory to counsel for the Underwriters
to the effect that:
(i) The First National Bank of Chicago
is a national association with trust powers, duly
organized, validly existing and in good standing
under the laws of the United States with all
necessary power and authority to execute and
deliver, and to carry out and perform its
obligations under the terms of the Declaration and
the Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and
performance by the Property Trustee of the
Declaration and the execution, delivery and
performance by the Guarantee Trustee of the
Preferred Securities Guarantee Agreement have been
duly authorized by all necessary corporate action
on the part of the Property Trustee and the
Guarantee Trustee, respectively. The Declaration
and the Preferred Securities Guarantee Agreement
have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee,
respectively, and constitute the legal, valid and
binding obligations of the Property Trustee and
the Guarantee Trustee, respectively, enforceable
against the Property Trustee and the Guarantee
Trustee, respectively, in accordance with their
terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and
performance of the Declaration and the Preferred
Securities Guarantee Agreement by the Property
Trustee and the Guarantee Trustee, respectively,
do not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Property
Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or
authorization of, or registration with or notice
to, any federal banking authority is required for
the execution, delivery or performance by the
Property Trustee and the Guarantee Trustee of the
Declaration and the Preferred Securities Guarantee
Agreement.
(v) The Statements of Eligibility
on Forms T-1 with respect to each of the Property
Trustee, the Debt Trustee, and the Guarantee
Trustee filed with the Commission as part of the
Registration Statement complied as to form in all
material respects with the requirements of the
1939 Act and the 1939 Act Regulations.
(vi) The Declaration constitutes a
valid and binding obligation of the Property
Trustee and the Delaware Trustee and is
enforceable against the Property Trustee and the
Delaware Trustee in accordance with its terms,
except to the extent that the enforcement thereof
may be limited by the Bankruptcy Exceptions.
(4) The opinion of Sidley & Austin, as
counsel for the Underwriters, to the Representative at
the Closing Time with respect to the validity of the
Securities and with respect to the Registration
Statement, the Prospectus, and other related matters as
the Representative may reasonably require and including
that:
(i) under current law, for United
States federal income tax purposes (A) the
Subordinated Debentures will constitute
indebtedness of the Company and (B) the interest
on the Subordinated Debentures will be deductible
by the Company on an economic accrual basis in
accordance with section 163(e) of the Internal
Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7, subject to any
applicable limitations on the Company's ability to
deduct interest on any of its indebtedness;
(ii) under current law, the Trust will
be classified for United States federal income tax
purposes as a grantor trust and not as an
association taxable as a corporation; accordingly,
for United States federal income tax purposes,
each holder of Preferred Securities generally will
be considered the owner of an undivided interest
in the Subordinated Debentures, and each holder
will be required to include in its gross income
any original issue discount accrued with respect
to its allocable share of the Subordinated
Debentures; and.
(iii) the discussion set forth in the
Prospectus Supplement under the caption "United
States Federal Income Taxation" is a fair and
accurate summary of the matters addressed therein,
based upon current law and the assumptions stated
or referred to therein.
(c) At Closing Time, there shall not have been
since the date hereof or since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Trust or the
Company considered as one enterprise, whether or not arising
in the ordinary course of business, and the Representative
shall have received a certificate of a Vice President of the
Company and of the chief financial or chief accounting
officer of the Company and a certificate of a Regular
Trustee of the Trust, and dated as of Closing Time, to the
effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii)
the Trust and the Company have complied with all agreements
and satisfied all conditions on their part to be performed
or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) The Representative shall have received from
Coopers & Lybrand L.L.P. two letters, one dated as of the
date hereof and delivered on such date and the other dated
as of the Closing Time and delivered at such time, in form
and substance satisfactory to the Representative, to the
effect that:
(i) They are independent public accountants
with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations;
(ii) In their opinion, the financial
statements and supporting schedule(s) of the Company
audited by them and included or incorporated by
reference in the Registration Statement comply as to
form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to registration statements
on Form S-3 and the 1934 Act and the 1934 Act
Regulations;
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company, a reading of the minute
books of the Company 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 Company responsible for financial and
accounting matters with respect to the unaudited
consolidated financial statements included in the
Registration Statement and Prospectus and the latest
available interim unaudited financial statements of the
Company, 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 their
attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the
Company included in the Registration Statement and
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted
accounting principles in the United States applied on a
basis substantially consistent with that of the audited
financial statements included 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
capital stock or any increase in long-term debt of the
Company or any decrease in the common shareholders'
equity of the Company other than for the declaration of
regular quarterly dividends, in each case as compared
with the amounts shown on the most recent balance sheet
of the Company included in the Registration Statement
and Prospectus or, during the period from the date of
such balance sheet to the date of such letter, there
were any decreases, as compared with the corresponding
period in the preceding year, in revenues or net income
of the Company, except in each case as set forth in or
contemplated by the Registration Statement and
Prospectus or except for such exceptions (e.g.
inability to determine such decreases because of
insufficient accounting information available after the
date of such most recent balance sheet) enumerated in
such letter as shall have been agreed to by the Agents
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, and the limited procedures referred to in
clause (iii) above, they have carried out certain other
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information which are included or incorporated by
reference in the Registration Statement and Prospectus
and which are specified by the Representative, and have
found such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, the Preferred Securities
shall be rated in one of the four highest rating categories
for long term debt ("Investment Grade") by any nationally
recognized statistical rating agency, and the Trust shall
have delivered to the Representative a letter, dated the
Closing Time, from such nationally recognized statistical
rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and
the Subordinated Debentures have Investment Grade ratings;
and there shall not have occurred any decrease in the
ratings of any of the securities of the Company or of the
Preferred Securities by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act).
(f) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock
Exchange upon notice of issuance.
If any condition specified in this Section shall
not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time at or
prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided
in Section 4 and Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
Section 6. Indemnification.
(a) The Offerors agree to jointly and severally
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement (or any amendment thereto),
including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the
1933 Act Regulations, if applicable, or the omission or
alleged omission therefrom of a material fact required
to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever
as incurred (including, subject to Section 6(c) hereof,
the fees and disbursements of counsel chosen by Merrill
Lynch) reasonably incurred, in investigating, preparing
or defending against any litigation, or any
investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission, to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to
the Trust or the Company by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and
provided, further, that this indemnity agreement with
respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting
any such losses liabilities, claims, damages or expenses
purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden of proving
that a copy of the Prospectus (as then amended or
supplemented if the Company or the Trust shall have
furnished any such amendments or supplements thereto), but
excluding documents incorporated or deemed to be
incorporated by reference, was not sent or given by or on
behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of
the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented, but excluding
documents incorporated or deemed to be incorporated by
reference therein) would have corrected the defect giving
rise to such loss, liability, claim, damage or expense, it
being understood that this proviso shall have no application
if such defect shall have been corrected in a document which
is incorporated or deemed to be incorporated by reference in
the Prospectus.
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 6(a)
hereunder.
(c) Each Underwriter severally agrees to
indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration
Statement, and each person, if any, who controls the
Offerors within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Offerors by such Underwriter through
Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a), counsel to the
indemnified parties shall be selected by the Representative,
and in the case of parties indemnified pursuant to Section
6(b), counsel to the indemnified parties shall be selected
by the Company. An indemnifying party may participate at
its own expense in the defense of any such action, provided,
however, that counsel to the indemnifying parties shall not
(except with the consent of the indemnified parties) also be
counsel to the indemnified parties. In no event shall the
indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in
connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or
not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party
from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(e) If at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)
effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated
by Section 6(a) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such
request to be reasonable and (ii) provides written notice to
the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such
settlement.
Section 7. Contribution. In order to provide
for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 6
hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with
its terms, the Offerors and the Underwriters shall
contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Offerors and one or more
of the Underwriters, as incurred, in such proportion
represented by the percentage that the underwriting
compensation paid by the Company appearing on the cover page
of the Prospectus bears to the initial public offering price
appearing thereon and the Offerors are responsible for the
balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each
director of the Company and each officer of the Company who
signed the Registration Statement, each trustee of the Trust
and each person, if any, who controls an Offeror within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Offerors.
Section 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement, or
contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors and
shall survive delivery of the Preferred Securities to the
Underwriters.
Section 9. Termination of Agreement.
(a) The Representative may terminate this
agreement, by notice to the Offerors, at any time at or
prior to Closing Time (i) if there has been, since the date
of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Trust and the Company considered as one
enterprise, whether or not arising in the ordinary course of
business, (ii) if there has occurred any material adverse
change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is
such as to make it, in the judgment of the Representative,
impracticable to market the Preferred Securities or to
enforce contracts for the sale of the Preferred Securities,
(iii) if trading in any securities of the Company or the
Preferred Securities has been suspended or materially
limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange has been
suspended, limited or restricted or minimum or maximum
prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchange
or by order of the Commission or any other governmental
authority, (iv) if a banking moratorium has been declared by
either Federal, New York or Delaware authorities, or (v) if
there has been any decrease in the ratings of any of the
securities of the Company or of the Preferred Securities by
any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the 1933 Act),
or (v) if there shall have come to the attention of the
Representative any facts that would cause the Representative
to believe that the Prospectus, at the time it was required
to be delivered to a purchaser of Securities, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statement
therein, in light of the circumstances existing at the time
of such delivery, not misleading.
(b) If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of
any party to any other party except as provided in Section 4
hereof and Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
Section 10. Default by One or More of the
Underwriters. If one or more of the Underwriters shall fail
at Closing Time to purchase the Preferred Securities that it
or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the
right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does
not exceed 10% of the Preferred Securities, each of the non-
defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the Preferred Securities, this Agreement shall
terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative or the Offerors shall have the right to
postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the
Registration Statement or Prospectus or in any other
documents or arrangements.
Section 11. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunications. Notices to the
Underwriters shall be directed to the Representative at
Merrill Lynch World Headquarters, North Tower, World
Financial Center, New York, New York 10281-1201, attention
of _________________________; notices to the Trust and the
Company shall be directed to them at 1201 Walnut, Kansas
City, Missouri 64106, Attention: Treasurer.
Section 12. Parties. This Agreement shall
inure to the benefit of and be binding upon the Underwriters
and the Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Trust and
the Company and their respective successors and the
controlling persons and officers, directors and trustees
referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
herein or therein contained. This Agreement and all
conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Trust
and the Company and their respective successors, and said
controlling persons and officers, directors and trustees and
their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. Governing Law and Time. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to
agreements made to and to be performed in said State.
Except as otherwise set forth herein, specified times of day
refer to New York City time.
Section 14. Counterparts. This Agreement may
be executed by any one or more of the parties hereto 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.
If the foregoing is in accordance with your
understanding or our agreement, please sign and return to
the Trust a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement
between the Underwriters and the Trust and the Company in
accordance with its terms.
Very Truly yours,
KANSAS CITY POWER & LIGHT COMPANY
By________________________
Title:
KCPL Financing _
By________________________
Title: Trustee
By________________________
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By__________________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Number
Name of Underwriter of Securities
_________________ _____________
EXHIBIT 4-a
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
____________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF BUSINESS TRUST REGISTRATION OF "KCPL
FINANCING I", FILED IN THIS OFFICE ON THE ELEVENTH DAY OF
DECEMBER, A.D. 1996, AT 12:20 O'CLOCK P.M.
[SEAL] /S/EDWARD J. FREEL
EDWARD J. FREEL, SECRETARY OF STATE
2693200 8100 AUTHENTICATION: 8233438
960362851 DATE: 12-11-96
CERTIFICATE OF TRUST
OF
KCPL FINANCING I
THIS CERTIFICATE OF TRUST of KCPL Financing I (the
"Trust"), dated as of December 10, 1996, is being duly executed
and filed by the undersigned, as trustees, to create a business
trust under the Delaware Business Trust Act (12 Del. C. Section
3801, et seq.).
1. Name. The name of the business trust being
created hereby is KCPL Financing I.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business in
the State of Delaware are First Chicago Delaware Inc., 300 King
Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall
be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
FIRST CHICAGO DELAWARE INC., ANDREA F. BIELSKER
not in its individual capacity not in her individual capacity
but solely as Trustee but solely as Trustee
By: /s/Steven M. Wagner By: /s/Andrea F. Bielsker
Steven M. Wagner
Vice President
THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual
capacity but solely as Trustee
By: /s/ John R. Prendiville
John R. Prendiville
Vice President
Exhibit 4-b
___________________________________
AMENDED AND RESTATED DECLARATION OF TRUST
KCPL FINANCING _
Dated as of ____________, 199_
___________________________________
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS 1
SECTION 1.1. Definitions 1
ARTICLE II
TRUST INDENTURE ACT 11
SECTION 2.1. Trust Indenture Act; Application 11
SECTION 2.2. Lists of Holders of Securities 11
SECTION 2.3. Reports by the Property Trustee 12
SECTION 2.4. Periodic Reports to Property Trustee 12
SECTION 2.5. Evidence of Compliance with Conditions
Precedent 12
SECTION 2.6. Events of Default; Waiver 12
SECTION 2.7. Events of Default; Notice 14
ARTICLE III
ORGANIZATION 14
SECTION 3.1. Name 14
SECTION 3.2. Office 14
SECTION 3.3. Purpose 15
SECTION 3.4. Authority 15
SECTION 3.5. Title to Property of the Trust 15
SECTION 3.6. Powers and Duties of the Regular Trustees 15
SECTION 3.7. Prohibition of Actions by the Trust and
the Trustees 19
SECTION 3.8. Powers and Duties of the Property Trustee 19
SECTION 3.9. Certain Duties and Responsibilities of
the Property Trustee 21
SECTION 3.10. Certain Rights of Property Trustee 23
SECTION 3.11. Delaware Trustee 26
SECTION 3.12. Execution of Documents 26
SECTION 3.13. Not Responsible for Recitals or Issuance
of Securities 26
SECTION 3.14. Duration of Trust 26
SECTION 3.15. Mergers 26
ARTICLE IV
SPONSOR 28
SECTION 4.1. Sponsor's Purchase of Common Securities 28
SECTION 4.2. Responsibilities of the Sponsor 28
ARTICLE V
TRUSTEES 29
SECTION 5.1. Number of Trustees 29
SECTION 5.2. Delaware Trustee 29
SECTION 5.3. Property Trustee; Eligibility 30
SECTION 5.4. Qualifications of Regular Trustees and
Delaware Trustee Generally 30
SECTION 5.5. Initial Trustees 31
SECTION 5.6. Appointment, Removal and Resignation of
Trustees 31
SECTION 5.7. Vacancies among Trustees 33
SECTION 5.8. Effect of Vacancies 33
SECTION 5.9. Meetings 33
SECTION 5.10. Delegation of Power 34
ARTICLE VI
DISTRIBUTIONS 34
SECTION 6.1. Distributions 34
ARTICLE VII
ISSUANCE OF SECURITIES 34
SECTION 7.1. General Provisions Regarding Securities 34
ARTICLE VIII
TERMINATION OF TRUST 35
SECTION 8.1. Termination of Trust 35
ARTICLE IX
TRANSFER OF INTERESTS 36
SECTION 9.1. Transfer of Securities 36
SECTION 9.2. Transfer of Certificates 37
SECTION 9.3. Deemed Security Holders 37
SECTION 9.4. Book Entry Interests 38
SECTION 9.5. Notices to Clearing Agency 38
SECTION 9.6. Appointment of Successor Clearing Agency 39
SECTION 9.7. Definitive Preferred Security Certificates 39
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates 40
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS 40
SECTION 10.1. Liability 40
SECTION 10.2. Exculpation 41
SECTION 10.3. Fiduciary Duty 41
SECTION 10.4. Indemnification 42
SECTION 10.5. Outside Businesses 43
ARTICLE XI
ACCOUNTING 43
SECTION 11.1. Fiscal Year 43
SECTION 11.2. Certain Accounting Matters 43
SECTION 11.3. Banking 44
SECTION 11.4. Withholding 44
ARTICLE XII
AMENDMENTS AND MEETINGS 45
SECTION 12.1. Amendments 45
SECTION 12.2. Meetings of the Holders of Securities;
Action by Written Consent 47
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE
TRUSTEE 49
SECTION 13.1. Representations and Warranties of
Property Trustee 49
SECTION 13.2. Representations and Warranties of
Delaware Trustee 49
ARTICLE XIV
MISCELLANEOUS 50
SECTION 14.1. Notices 50
SECTION 14.2. Governing Law 51
SECTION 14.3. Intention of the Parties 51
SECTION 14.4. Headings 51
SECTION 14.5. Successors and Assigns 51
SECTION 14.6. Partial Enforceability 51
SECTION 14.7. Counterparts 52
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
____________________ ___________
310(a) 5.3(a)
310(b) 5.3(c)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(b) 2.8
315(c) 3.9(a)
315(d) 3.9(a)
316(a) Exhibit A, 2.6
316(c) 3.6(e)
* This Cross-Reference Table does not
constitute part of the Declaration and shall not
affect the interpretation of any of its terms or
provisions.
EXHIBIT A
TERMS OF SECURITIES
EXHIBIT B
PREFERRED SECURITIES GUARANTEE
EXHIBIT C
UNDERWRITING AGREEMENT
AMENDED AND RESTATED DECLARATION OF TRUST
OF
KCPL FINANCING _
THIS AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration"), dated and effective as of ____________,
199_, by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of
undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
W I T N E S S E T H:
WHEREAS, certain of the Trustees and the Sponsor
have heretofore established a trust (the "Trust") under the
Business Trust Act (as defined herein) pursuant to a
Declaration of Trust dated December __, 1996 (the "Original
Declaration") for the sole purpose of issuing and selling
certain securities representing undivided beneficial
interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Debentures of the
Subordinated Debenture Issuer;
WHEREAS, all the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and
provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the
parties hereto to continue the Trust as a business trust
under the Business Trust Act and that this Declaration
constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the
Trust will be held in trust for the benefit of the holders,
from time to time, of the securities representing undivided
beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used
in this Declaration but not defined in the preamble above
have the respective meanings assigned to them in this
Section 1.1. A term defined anywhere in this Declaration has
the same meaning throughout. A term defined in the Trust
Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires.
Affiliate:
The term "Affiliate" has the same meaning as given
to that term in Rule 405 of the Securities Act or any
successor rule thereunder.
Authorized Officer:
The term "Authorized Officer" of a Person means
any Person that is authorized to bind such Person.
Book Entry Interest:
The term "Book Entry Interest" means a beneficial
interest in a Global Certificate, ownership and transfers of
which shall be maintained and made through book entries by a
Clearing Agency as described in Section 9.4.
Business Day:
The term "Business Day" means any day other than a
day on which banking institutions in Chicago, Illinois or
New York, New York are authorized or required by law to
close.
Business Trust Act:
The term "Business Trust Act" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. 3801 et seq., as
it may be amended from time to time.
Certificate:
The term "Certificate" means a Common Security
Certificate or a Preferred Security Certificate.
Clearing Agency:
The term "Clearing Agency" means an organization
registered as a "Clearing Agency" pursuant to Section 17A of
the Exchange Act that is acting as depository for the
Preferred Securities and in whose name, or in the name of a
nominee of that organization, shall be registered a Global
Certificate and which shall undertake to effect book entry
transfers and pledges of the Preferred Securities.
Clearing Agency Participant:
The term "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.
Closing Date:
The term "Closing Date" means _____________, 199_.
Code:
The term "Code" means the Internal Revenue Code of
1986.
Common Security:
The term "Common Security" has the meaning
specified in Section 7.1.
Common Security Certificate:
The term "Common Security Certificate" means a
definitive certificate in fully registered form representing
a Common Security substantially in the form of Annex II to
Exhibit A.
Covered Person:
The term "Covered Person" means:
(a) any officer, director, shareholder, part
ner, member, representative, employee or agent of:
(i) the Trust; or
(ii) the Trust's Affiliates; and
(b) any Holder of Securities.
Debenture Issuer:
The term "Debenture Issuer" means KCPL, in its
capacity as the issuer of the Subordinated Debentures.
Debenture Trustee:
The term "Debenture Trustee" means The First
National Bank of Chicago, as trustee under the Indenture,
until a successor is appointed thereunder and thereafter
means such successor trustee.
Delaware Trustee:
The term "Delaware Trustee" has the meaning set
forth in Section 5.2.
Definitive Preferred Security Certificates:
The term "Definitive Preferred Security
Certificates" has the meaning set forth in Section 9.4.
Direction:
The term "Direction" by a Person means a written
direction signed:
(a) if the Person is a natural person,
by that Person; or
(b) in any other case, in the name of such
Person by one or more Authorized Officers of that
Person.
Distribution:
The term "Distribution" means a distribution
payable to Holders of Securities in accordance with Section
6.1.
DTC:
The term "DTC" means The Depository Trust Company,
the initial Clearing Agency.
Event of Default:
The term "Event of Default" in respect of the
Securities means an Indenture Default has occurred and is
continuing in respect of the Subordinated Debentures.
Exchange Act:
The term "Exchange Act" means the Securities
Exchange Act of 1934.
Global Certificate:
The term "Global Certificate" has the meaning set
forth in Section 9.4.
Holder:
The term "Holder" means the Person in whose name a
Certificate representing a Security is registered, such
Person being a beneficial owner within the meaning of the
Business Trust Act; provided, however, that in determining
whether Holders of the requisite liquidation amount of
Preferred Securities have voted on any matter provided for
in this Declaration, then for the purpose of such
determination only (and not for any other purpose
hereunder), if the Preferred Securities remain in the form
of one or more Global Certificates, the term "Holder" shall
mean the holder of the Global Certificate acting at the
direction of the Preferred Security Beneficial Owners.
Indemnified Person:
The term "Indemnified Person" means any Trustee,
any Affiliate of any Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives
or agents of any Trustee, or any employee or agent of the
Trust or its Affiliates.
Indenture:
The term "Indenture" means the Indenture dated as
of ___________, 199_ between the Debenture Issuer and the
Debenture Trustee, and any amendment thereto and any
indenture supplemental thereto pursuant to which the
Subordinated Debentures are to be issued.
Indenture Default:
The term "Indenture Default" means an "Event of
Default" as such term is defined in the Indenture.
Investment Company:
The term "Investment Company" means an investment
company as defined in the Investment Company Act.
Investment Company Act:
The term "Investment Company Act" means the
Investment Company Act of 1940.
KCPL:
The term "KCPL" means Kansas City Power & Light
Company, a Missouri corporation, or any successor entity in
a merger or consolidation.
Legal Action:
The term "Legal Action" has the meaning set forth
in Section 3.6(g).
Majority in liquidation amount of the Securities:
The term "Majority in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities voting
separately as a class, representing more than 50% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Officers' Certificate:
The term "Officers' Certificate" means, with
respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall
include:
(a) a statement that each such officer
signing the Certificate has read the covenant or
condition and the definition(s) relating thereto;
(b) a brief statement of the nature and
scope of the examination or investigation
undertaken by each such officer in rendering the
Certificate;
(c) a statement that each such officer has
made such examination or investigation as, in such
officer's opinion, is necessary to enable such
officer to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such officer, such condition or
covenant has been complied with.
Paying Agent:
The term "Paying Agent" has the meaning specified
in Section 3.8(i).
Person:
The term "Person" means any individual,
corporation, partnership, limited liability company, joint
venture, joint stock company, unincorporated association or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Preferred Securities Guarantee:
The term "Preferred Securities Guarantee" means
the Preferred Securities Guarantee Agreement to be dated as
of ____________, 199_ of the Sponsor in respect of the
Preferred Securities in the form of Exhibit B.
Preferred Security:
The term "Preferred Security" has the meaning
specified in Section 7.1.
Preferred Security Beneficial Owner:
The term "Preferred Security Beneficial 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).
Preferred Security Certificate:
The term "Preferred Security Certificate" means a
certificate representing a Preferred Security substantially
in the form of Annex I to Exhibit A.
Property Trustee:
The term "Property Trustee" means the Trustee
meeting the eligibility requirements set forth in Section
5.3.
Property Trustee Account:
The term "Property Trustee Account" has the
meaning set forth in Section 3.8(c)(i).
Quorum:
The term "Quorum" means a majority of the Regular
Trustees or, if there are only two Regular Trustees, both of
them.
Regular Trustee:
The term "Regular Trustee" means any Trustee other
than the Property Trustee and the Delaware Trustee.
Related Party:
The term "Related Party" means, with respect to
the Sponsor, any direct or indirect wholly owned subsidiary
of the Sponsor or any other Person which owns, directly or
indirectly, 100% of the outstanding voting securities of the
Sponsor.
Responsible Officer:
The term "Responsible Officer", when used with
respect to the Property Trustee, means the chairman of the
board of directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer or, any
corporate trust officer or any other officer or assistant
officer of the Property Trustee customarily performing
functions similar to those performed by any of the persons
who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
Rule 3a-5:
The term "Rule 3a-5" means Rule 3a-5 under the
Investment Company Act.
Securities:
The term "Securities" mean the Common Securities
and the Preferred Securities.
Securities Act:
The term "Securities Act" means the Securities
Act of 1933, as amended.
66-2/3% in liquidation amount of the Securities:
The term "66-2/3% in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities,
voting separately as a class, representing 66-2/3% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Sponsor:
The term "Sponsor" means KCPL, in its capacity as
sponsor of the Trust.
Subordinated Debentures:
The term "Subordinated Debentures" means the
series of Subordinated Debentures to be issued by the
Debenture Issuer under the Indenture to the Property Trustee
for the benefit of the Trust and the Holders.
Successor Property Trustee:
The term "Successor Property Trustee" means a
successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3(a).
10% in liquidation amount of the Securities:
The term "10% in liquidation amount of the
Securities" means, except as provided in the terms of the
Preferred Securities or the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding
Preferred Securities or outstanding Common Securities,
voting separately as a class, representing 10% of the
aggregate stated liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
maturity, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all
outstanding Securities of such class.
Tax Event:
The term "Tax Event" means a "Tax Event" as
defined in the Indenture.
Treasury Regulations:
The term "Treasury Regulations" means the income
tax regulations including temporary and proposed
regulations, promulgated under the Code by the United States
Treasury Department, as amended.
Trustee or Trustees:
The terms "Trustee" or "Trustees" means each
Person who has signed this Declaration as a trustee, so long
as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein
to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
Trust Indenture Act:
The term "Trust Indenture Act" means the Trust
Indenture Act of 1939.
Underwriting Agreement:
The term "Underwriting Agreement" means the
Underwriting Agreement for the offering and sale of
Preferred Securities in the form of Exhibit C.
SECTION 1.2. Interpretation. Each definition in
this Declaration includes the singular and the plural, and
references to the neuter gender include the masculine and
feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with
generally accepted accounting principles in effect from time
to time. References to any statute mean such statute as
amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein,"
"hereof" and "hereunder" refer to this Declaration as a
whole. The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or
interpretation of this Declaration. References to Articles,
Sections, Annexes and Schedules mean the Articles, Sections,
Annexes and Schedules of this Declaration. The Annexes, if
any, and Schedules are hereby incorporated by reference into
and shall be deemed a part of this Declaration.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Declaration and shall, to the extent applicable, be governed
by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a trustee for the purposes of the Trust Indenture
Act. If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties
imposed by sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(c) The application of the Trust Indenture Act to
this Declaration shall not affect the nature of the
Securities as equity securities representing undivided
beneficial interests in the assets of the Trust.
SECTION 2.2. Lists of Holders of Securities. (a)
Each of the Sponsor and the Regular Trustee(s) on behalf of
the Trust shall provide the Property Trustee (i) within
fourteen (14) days after each record date for payment of
Distributions a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such
record date, provided that none of the Sponsor or the
Regular Trustees on behalf of the Trust shall be obligated
to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders
given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) at any other time,
within thirty (30) days of receipt by the Trust of a written
request for a List of Holders as of a date no more than
fourteen (14) days before such List of Holders is given to
the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or
which it receives in its capacity as Paying Agent (if acting
in such capacity) provided that the Property Trustee may
destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3. Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property
Trustee shall provide to the Holders of the Preferred
Securities such reports, if any, as are required by Section
313 of the Trust Indenture Act, in the form and in the
manner and to the Person or Persons provided by section 313
of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to Property
Trustee. Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide to the Property Trustee
such documents, reports and information as required by
section 314 (if any) and the compliance certificate as
required by section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with
Conditions Precedent. Each of the Sponsor and the Regular
Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with the
conditions precedent, if any, provided for in this
Declaration which relate to any of the matters set forth in
section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to
section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver. (a) The
Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in
respect of the Preferred Securities and its consequences,
provided that if the Event of Default:
(i) is not waivable under the Indenture, the
Event of Default under this Declaration shall also not
be waivable; or
(ii) requires the consent or vote of greater than
a majority in principal amount of the holders of the
Subordinated Debentures (a "Super-Majority") to be
waived under the Indenture, the Event of Default under
this Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation
amount of the Preferred Securities that the relevant
Super Majority represents to the aggregate principal
amount of the Subordinated Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Any waiver by the Holders of the Preferred Securities of an
Event of Default with respect to the Preferred Securities
shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Event of Default with
respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation
amount of the Common Securities may, by vote, on behalf of
the Holders of all of the Common Securities, waive any past
Event of Default in respect of the Common Securities and its
consequences, provided that if the Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed
to have waived such Event of Default under this
Declaration as provided below, the Event of Default
under this Declaration is not waivable; or
(ii) requires the consent or vote of all of the
holders of the Subordinated Debentures to be waived,
the Event of Default under this Declaration may only be
waived by the vote of all of the Holders of the Pre
ferred Securities, provided that each Holder of Common
Securities will be deemed to have waived any such Event
of Default and all Events of Default with respect to
the Common Securities and its consequences until all
Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise
eliminated and until such Events of Default have been
so cured, waived or otherwise eliminated, the Property
Trustee will be deemed to be acting solely on behalf of
the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right
to direct the Property Trustee in accordance with the
terms of the Securities. Subject to the foregoing
proviso, upon such waiver, any such default shall cease
to exist, and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the
Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the
Indenture by the Property Trustee at the direction of the
Holders of the Preferred Securities constitutes a waiver of
the corresponding Event of Default under this Declaration.
SECTION 2.7. Events of Default; Notice. (a) The
Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices
of all defaults with respect to the Securities known to the
Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults", for
the purposes of this Section 2.7(a), is hereby defined as an
Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective
of the giving of any notice provided therein); provided
that, except for a default in the payment of the principal
of (or the premium, if any) or the interest on any of the
Subordinated Debentures or in the payment of any sinking
fund installment established for the Subordinated
Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Property
Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to
have knowledge of any default except:
(i) a default arising under Sections 6.01(a)(1)
and 6.01(a)(2) of the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of which a
Responsible Officer of the Property Trustee charged
with the administration of this Declaration shall have
obtained written notice.
ARTICLE III
ORGANIZATION
SECTION 3.1. Name. The Trust is named "KCPL
Financing __", as such name may be modified from time to
time by the Regular Trustees following written notice to the
Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.
SECTION 3.2. Office. The address of the
principal office of the Trust is 1201 Walnut, Kansas City,
Missouri 64106-2124. On ten Business Days written notice to
the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.3. Purpose. The exclusive purposes and
functions of the Trust are (a) to issue and sell Securities
and use the proceeds from such sale to acquire the
Subordinated Debentures and (b) except as otherwise limited
herein, to engage in only those other activities necessary
or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments,
pledge any of its assets, or otherwise undertake (or permit
to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4. Authority. Subject to the
limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall
have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute
the act of and serve to bind the Trust, and an action taken
by the Property Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In
dealing with a Trustee or the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the
authority of such Trustee or Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of a Trustee or the
Trustees as set forth in this Declaration.
SECTION 3.5. Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Subordinated Debentures and the Property Trustee Account or
as otherwise provided in this Declaration, legal title to
all assets of the Trust shall be vested in the Trust. The
Holders shall not have legal title of any part of the assets
of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
SECTION 3.6. Powers and Duties of the Regular
Trustees. The Regular Trustees shall have the exclusive
power and authority and duty to cause the Trust to engage in
the following activities:
(a) to issue and sell the Preferred Securities
and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may
issue no more than one series of Preferred Securities
and no more than one series of Common Securities, and,
provided further, there shall be no interests in the
Trust other than the Securities and the issuance of
Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the
Preferred Securities, at the direction of the Sponsor,
to:
(i) execute and file with the Securities and
Exchange Commission (the "Commission") the
registration statement on Form S-3 prepared by the
Sponsor in relation to the Preferred Securities,
including any amendments thereto prepared by the
Sponsor;
(ii) execute and file any documents prepared
by the Sponsor, or take any acts as determined by
the Sponsor as necessary in order to qualify or
register all or part of the Preferred Securities
in any state in which the Sponsor has determined
to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application pre
pared by the Sponsor to the New York Stock
Exchange, Inc. or any other national stock
exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A prepared by the
Sponsor relating to the registration of the class
of Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto
prepared by the Sponsor; and
(v) execute and enter into the Underwriting
Agreement providing for the sale of the Preferred
Securities;
(c) to acquire the Subordinated Debentures with
the proceeds of the sale of the Preferred Securities
and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the
Subordinated Debentures to be held of record in the
name of the Property Trustee for the benefit of the
Trust and the Holders of the Preferred Securities and
the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Tax Event,
provided that the Regular Trustees shall consult with
the Sponsor and the Property Trustee before taking any
Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to
all actions to be taken hereunder that require a record
date to be established, including for the purposes of
section 316(c) of the Trust Indenture Act and with
respect to Distributions, voting rights, redemptions
and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and the Holders of
Common Securities as to such actions and applicable
record dates;
(f) to take all actions and perform such duties
as may be required of the Regular Trustees pursuant to
the terms of the Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal
Action"), unless pursuant to Section 3.8(f), the
Property Trustee has the exclusive power to bring such
Legal Action;
(h) to employ or otherwise engage employees and
agents (who may be designated as officers with titles)
and managers, contractors, advisors and consultants and
pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate to the Property
Trustee required by section 314(a)(4) of the Trust
Indenture Act, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses which are necessary or
incidental to carry out any of the purposes of the
Trust;
(l) to act as, or appoint another Person to act
as, transfer agent for the Securities;
(m) to give prompt written notice to the Holders
of the Securities of any notice received from the
Debenture Issuer of its election (i) to defer payments
of interest on the Subordinated Debentures by extending
the interest payment period under the Indenture or (ii)
to shorten the scheduled maturity date on the
Subordinated Debentures;
(n) to execute all documents or instruments,
perform all duties and powers, and do all things for
and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action which may be necessary or
appropriate for the preservation and the continuation
of the Trust's valid existence, rights, franchises and
privileges as a statutory business trust 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 Holders of the Securities or
to enable the Trust to effect the purposes for which
the Trust was created;
(p) to take any action, not inconsistent with
this Declaration or with applicable law, which the
Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities
of the Trust as set out in this Section 3.6 including,
but not limited to:
(i) causing the Trust not to be deemed to be
an Investment Company required to be registered
under the Investment Company Act;
(ii) causing the Trust to be characterized
for United States federal income tax purposes as a
grantor trust and causing each Holder of
Securities to be treated as owning an undivided
beneficial interest in the Subordinated
Debentures; and
(iii) co-operating with the Debenture Issuer
to ensure that the Subordinated Debentures will be
treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the
interests of the Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports that
are required to be filed with respect to the Trust to
be duly prepared and filed by the Regular Trustees, on
behalf of the Trust.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner which is consistent with the
purposes and functions of the Trust set out in Section 3.3
and the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust
set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees
shall have none of the powers or the authority of the
Property Trustee set forth in Section 3.8.
SECTION 3.7. Prohibition of Actions by the Trust
and the Trustees. The Trust shall not, and the Trustees (in
cluding the Property Trustee) shall cause the Trust not to,
engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not,
and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Subordinated Debentures but shall
distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a
Trust purpose;
(iv) make any loans or incur any indebtedness
other than loans represented by the Subordinated
Debentures;
(v) possess any power or otherwise act in such a
way as to vary the Trust assets or the terms of the
Securities in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) consent to the modification of the
Subordinated Debentures or any other asset of the
Trust, unless the Trust shall have received an opinion
of counsel to the effect that such modification will
not cause more than an insubstantial risk that for
United States federal income tax purposes the Trust
will not be characterized as a grantor trust.
SECTION 3.8. Powers and Duties of the Property
Trustee. (a) The legal title to the Subordinated
Debentures shall be owned by and held of record in the name
of the Property Trustee in trust for the benefit of the
Trust and the Holders of the Securities. The right, title
and interest of the Property Trustee to the Subordinated
Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee as set forth in
Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with respect
to the Subordinated Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its
right, title and interest in the Subordinated Debentures to
the Regular Trustees or to the Delaware Trustee (if the
Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-
interest bearing bank account (the "Property Trustee
Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the
Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Subordinated
Debentures held by the Property Trustee, deposit such
funds into the Property Trustee Account and make
payments to the Holders of the Preferred Securities and
the Holders of the Common Securities from the Property
Trustee Account in accordance with Section 6.1. Funds
in the Property Trustee Account shall be held unin
vested until disbursed in accordance with this
Declaration. The Property Trustee Account shall be an
account which is maintained with a banking institution
the rating on whose long-term unsecured indebtedness is
at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical
rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the
redemption of the Preferred Securities and the Common
Securities to the extent the Subordinated Debentures
are redeemed or mature; and
(iii) upon notice of distribution issued by the
Regular Trustees in accordance with the terms of the
Preferred Securities and the Common Securities, engage
in such ministerial activities as shall be necessary or
appropriate to effect the distribution of the
Subordinated Debentures to Holders of Securities upon
the liquidation and dissolution of the Trust.
(d) The Property Trustee shall take all actions
and perform such duties as may be specifically required of
the Property Trustee pursuant to the terms of the Secu
rities.
(e) The Property Trustee shall hold the Preferred
Securities Guarantee for the benefit of the Holders of the
Preferred Securities.
(f) The Property Trustee shall take any Legal
Action which arises out of or in connection with an Event of
Default or the Property Trustee's duties and obligations
under this Declaration (including the Preferred Securities
Guarantee) or the Trust Indenture Act.
(g) The Property Trustee shall continue to serve
as a Trustee until either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed to the
Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been
appointed and accepted that appointment in accordance
with Section 5.6.
(h) The Property Trustee shall have the legal
power to exercise all of the rights, powers and privileges
of a holder of Subordinated Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the
Property Trustee shall, for the benefit of the Holders of
the Securities, enforce its rights under the Indenture with
respect to the Subordinated Debentures and its rights under
the Preferred Securities Guarantee in accordance with the
terms of the Preferred Securities Guarantee, subject to the
rights of the Holders pursuant to the terms of such
Securities and the Preferred Securities Guarantee.
(i) The Property Trustee may authorize one or
more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the
Trust with respect to the Preferred Securities and the
Common Securities and any such Paying Agent shall comply
with section 317(b) of the Trust Indenture Act. Any Paying
Agent may be removed by the Property Trustee at any time and
a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property
Trustee shall have none of the powers or the authority of
the Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set
forth in this Section 3.8 in a manner which is consistent
with the purposes and functions of the Trust set forth in
Section 3.3 and the Property Trustee shall not take any
action which is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9. Certain Duties and Responsibilities
of the Property Trustee. (a) The Property Trustee, before
the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically
set forth in this Declaration and in the terms of the
Securities, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be con
strued to relieve the Property Trustee from liability for
its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the
express provisions of this Declaration and in the
terms of the Securities, and the Property Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically
set forth in this Declaration, and no implied
covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the state
ments and the correctness of the opinions
expressed therein, upon any certificates or
opinions furnished to the Property Trustee and
conforming to the requirements of this
Declaration; but in the case of any such
certificates or opinions that by any provision
hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to de
termine whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Property 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 not less than a Majority in liquidation
amount of the Securities at the time outstanding
relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall re
quire the Property Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Declaration or adequate
indemnity against such risk is not reasonably assured
to it;
(v) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical preservation
of the Subordinated Debentures and the Property Trustee
Account shall be to deal with such property in a
similar manner as the Property Trustee deals with
similar property for its own account, subject to the
protections and limitations on liability afforded to
the Property Trustee under this Declaration and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Subordinated Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable
for any interest on any money received by it except as
it may otherwise agree with the Sponsor. Money held by
the Property Trustee need not be segregated from other
funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the Property Trustee shall not be
responsible for monitoring the compliance by the
Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be
fully protected in acting or refraining from acting
upon any resolution, certificate, statement, in
strument, opinion, report, notice, request, direction,
consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Sponsor or the
Regular Trustees contemplated by this Declaration shall
be sufficiently evidenced by a Direction or an
Officers' Certificate.
(iii) Whenever in the administration of this
Declaration the Property Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad
faith on its part and, if the Trust is excluded from
the definition of an Investment Company solely by means
of Rule 3a-5, subject to the requirements of Rule 3a-5,
request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees.
(iv) The Property Trustee shall have no duty to
see to any recording, filing or registration of any
instrument (or any rerecording, refiling or reregistra
tion thereof).
(v) The Property Trustee may consult with counsel
and the written advice or opinion of such counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Sponsor or any of
its Affiliates and may include any of its employees.
The Property Trustee shall have the right at any time
to seek instructions concerning the administration of
this Declaration from any court of competent
jurisdiction.
(vi) The Property Trustee shall be under no
obligation to exercise any rights or powers vested in
it under this Declaration at the request or direction
of any Holder, unless such Holder shall have provided
to the Property Trustee reasonable security or indemni
ty against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be in
curred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee, provided that
nothing contained in this Section 3.10(a)(vi) shall,
however, relieve the Property Trustee, upon the occur
rence of an Event of Default, from exercising the
rights and powers vested in it by this Declaration.
(vii) The Property 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, approval, bond, security or other papers or doc
uments, but the Property Trustee, in its discretion,
may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Property 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 Property 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.
(ix) Any action taken by the Property Trustee or
its agents hereunder shall bind the Trust and the
Holders of the Securities, and the signature of the
Property Trustee or its agents alone shall be
sufficient and effective to perform any such action.
No third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's
taking such action.
(x) Whenever in the administration of this
Declaration the Property Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Property Trustee (i) may request
instructions from the Holders of the Securities
representing the aggregate liquidation amount of all
outstanding Securities of such class required under the
terms of the Securities to direct the Property Trustee
to enforce such remedy or right or take such action,
(ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are
received and (iii) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Declaration shall be
deemed to impose any duty or obligation on the Property
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or
acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to
the Property Trustee shall be construed to be a duty.
SECTION 3.11. Delaware Trustee. Notwithstanding
any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Trustees described in
this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
SECTION 3.12. Execution of Documents. Unless
otherwise determined by the Regular Trustees, a majority of,
or if there are only two, both of the Regular Trustees are
authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to
execute pursuant to Section 3.6, provided that any listing
application prepared by the Sponsor referred to in Section
3.6(b)(iii) may be executed by any Regular Trustee.
SECTION 3.13. Not Responsible for Recitals or
Issuance of Securities. The recitals contained in this
Declaration and the Securities shall be taken as the
statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property
of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust. The Trust,
unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for forty-five (45) years from
the Closing Date.
SECTION 3.15. Mergers. (a) The Trust may 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 in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the
Regular Trustees or, if there are more than two, a majority
of the Regular Trustees and without the consent of the
Property Trustee, the Delaware Trustee or the Holders of
the Securities, consolidate, amalgamate, merge with or into,
or be replaced by a trust organized as such under the laws
of any State; provided that:
(i) such successor entity (the "Successor
Entity") either:
(A) expressly assumes all of the obligations
of the Trust under the Securities; or
(B) substitutes for the Securities other se
curities having substantially the same terms as
the Preferred Securities and Common Securities,
respectively (the "Successor Securities"), so long
as the Successor Securities rank the same as the
Preferred Securities and Common Securities rank
with respect to Distributions and payments upon
liquidation, redemption, maturity and otherwise;
(ii) the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity which possesses the
same powers and duties as the Property Trustee as the
Holder of the Subordinated Debentures;
(iii) the Preferred Securities or any Successor
Securities thereof are listed, or any such Successor
Securities will be listed upon notification of issu
ance, on any national securities exchange or other
organization on which the Preferred Securities are then
listed;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (in
cluding any Successor Securities thereof) to be
downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, pref
erences and privileges of the Holders of the Securities
(including any Successor Securities) in any material
respect (other than with respect to any dilution of the
Holders' interest in the new entity);
(vi) such Successor Entity has a purpose identical
to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Sponsor has received
an opinion from independent counsel to the Trust experi
enced in such matters to the effect that:
(A) such merger, consolidation, amalgamation
or replacement does not adversely affect the
rights, preferences and privileges of the Holders
of the Securities (including any Successor Securi
ties) in any material respect (other than with
respect to any dilution of the Holders' interest
in the new entity); and
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register
as an Investment Company; and
(viii) the Sponsor guarantees the obligations of
such Successor Entity under the Successor Securities of
the Preferred Securities at least to the extent
provided by the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust
shall not consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement
would cause the Trust or Successor Entity for United States
federal income tax purposes to be classified as other than a
grantor trust and each Holder of the Securities not to be
treated as owning an undivided beneficial interest in the
Subordinated Debentures, except with the consent of Holders
of 100% in liquidation amount of the Securities.
ARTICLE IV
SPONSOR
SECTION 4.1. Sponsor's Purchase of Common
Securities. On the Closing Date, the Sponsor will purchase
all of the Common Securities issued by the Trust, in an
amount equal to approximately 3% of the capital of the Trust
at the same time as the Preferred Securities are sold.
SECTION 4.2. Responsibilities of the Sponsor. In
connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in
relation to the Preferred Securities, including any
amendments thereto;
(b) to determine the states in which to take
appropriate action to qualify or register for sale all
or part of the Preferred Securities and to take any and
all such acts, other than actions which must be taken
by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such states;
(c) to prepare for filing by the Trust an applica
tion to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of
any Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the class of Preferred
Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1. Number of Trustees. The number of
Trustees shall initially be four (4), and:
(a) at any time before the issuance of any Se
curities, the Sponsor may, by written instrument,
increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the
number of Trustees may be increased or decreased by
vote of the Holders of a Majority in liquidation amount
of the Common Securities voting as a class at a meeting
of the Holders of the Common Securities;
provided that in any case, the number of Trustees shall be
at least four (4) unless the Trustee that acts as the
Property Trustee also acts as the Delaware Trustee pursuant
to Section 5.2, in which case the number of Trustees shall
be at least three (3).
SECTION 5.2. Delaware Trustee. If required by
the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) a natural person who is a resident of the
State of Delaware; or
(b) if not a natural person, an entity which has
its principal place of business in the State of
Delaware and otherwise meets the requirements of
applicable law,
provided that if the Property Trustee has its principal
place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Property
Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 5.3. Property Trustee; Eligibility. (a)
There shall at all times be one Trustee which shall act as
Property Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any state or territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined
capital and surplus of at least fifty million U.S.
dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District
of Columbia authority (if such corporation publishes re
ports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining
authority referred to above, then for the purposes of
this Section 5.3(a)(ii), 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).
(b) If at any time the Property Trustee shall
cease to be eligible to so act under Section 5.3(a), the
Property Trustee shall immediately resign in the manner and
with the effect set out in Section 5.6(c).
(c) If the Property Trustee has or shall acquire
any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if they were the
obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 5.4. Qualifications of Regular Trustees
and Delaware Trustee Generally. Each Regular Trustee and
the Delaware Trustee (unless the Property Trustee also acts
as Delaware Trustee) shall be either a natural person who is
at least twenty-one (21) years of age or a legal entity
which shall act through one or more Authorized Officers.
SECTION 5.5. Initial Trustees. The initial
Regular Trustees shall be:
John J. DeStefano
1201 Walnut
Kansas City, Missouri 64106-2124
Andrea F. Bielsker
1201 Walnut
Kansas City, Missouri 64106-2124
The initial Property Trustee shall be:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60603
The initial Delaware Trustee shall be:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
SECTION 5.6. Appointment, Removal and Resignation
of Trustees. (a) Subject to Section 5.6(b), Trustees may
be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote
of the Holders of a Majority in liquidation amount of
the Common Securities, voting as a class at a meeting
of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.6(a)
until a Successor Property Trustee has been appointed
and has accepted such appointment by written instrument
executed by such Successor Property Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee
shall not be removed in accordance with Section 5.6(a)
until a successor Trustee possessing the qualifications
to act as Delaware Trustee under Sections 5.2 and 5.4
(a "Successor Delaware Trustee") has been appointed and
has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and de
livered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold
office until the successor of such Trustee shall have been
appointed or until the death, removal or resignation of such
Trustee. Any Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Trustee that acts
as the Property Trustee shall be effective until:
(A) a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust and the
Sponsor; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the
Trust and the Sponsor.
(d) The Holders of the Common Securities shall
use their best efforts to promptly appoint a Successor
Delaware Trustee or Successor Property Trustee as the case
may be if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with
this Section 5.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted
appointment as provided in this Section 5.6 within 60 days
after delivery to the Sponsor and the Trust of an instrument
of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper
and prescribe, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.7. Vacancies among Trustees. If a
Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if
the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the
existence of such vacancy by a majority of the Regular
Trustees shall be conclusive evidence of the existence of
such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.6.
SECTION 5.8. Effect of Vacancies. The death,
resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the
duties of a Trustee, or any one of them, shall not operate
to annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled
by the appointment of a Regular Trustee in accordance with
Section 5.6, the Regular Trustees in office, regardless of
their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed
upon the Regular Trustees by this Declaration.
SECTION 5.9. Meetings. Meetings of the Regular
Trustees shall be held from time to time upon the call of
any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution
of the Regular Trustees. Notice of any in-person meetings
of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the
Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less
than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes
of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall
constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened.
Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person
or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee,
any action of such Regular Trustee shall be evidenced by a
written consent of such Regular Trustee.
SECTION 5.10. Delegation of Power. (a) Any
Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over
the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 3.6, including any
registration statement or amendment thereto filed with the
Commission or making any other governmental filing.
(b) The Regular Trustees shall have power to
delegate from time to time to such of their number or to
officers of the Trust the doing of such things and the
execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as
the Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary
to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1. Distributions. Holders shall
receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in
their respective terms. If and to the extent that the
Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium
and principal on the Subordinated Debentures held by the
Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is
directed, to the extent funds are available for that
purpose, to make a Distribution of the Payment Amount to the
Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding
Securities. (a) The Regular Trustees shall, on behalf of
the Trust, issue one class of preferred securities
representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit A
and incorporated herein by reference (the "Preferred
Securities"), and one class of common securities represent
ing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A and
incorporated herein by reference (the "Common Securities").
The Trust shall have no securities or other interests in the
assets of the Trust other than the Preferred Securities and
the Common Securities.
(b) The Securities shall be signed on behalf of
the Trust by the Regular Trustees (or, if there are more
than two Regular Trustees, by any two of the Regular
Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of
the Trust who shall have signed any of the Securities shall
cease to be such Regular Trustee before the Security so
signed shall be delivered by the Trust, such Security
nevertheless may be delivered as though the person who
signed such Security had not ceased to be such Regular
Trustee; and any Security may be signed on behalf of the
Trust by such persons as, at the actual date of the
execution of such Security, are the Regular Trustees of the
Trust, although at the date of the execution and delivery of
the Declaration any such person was not such a Regular
Trustee.
(c) The consideration received by the Trust for
the issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall not
constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided
in this Declaration, the Securities so issued shall be
deemed to be validly issued, fully paid and non-assessable,
subject to Section 10.1(b) with respect to the Common
Securities.
(e) Every Person, by virtue of having become a
Holder or a Preferred Security Beneficial Owner in
accordance with the terms of this Declaration, shall be
deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1. Termination of Trust. (a) The
Trust shall terminate:
(i) upon the bankruptcy of the Holder of the
Common Securities or the Sponsor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the
Holder of the Common Securities or the Sponsor, the
filing of a certificate of cancellation with respect to
the Trust or the revocation of the charter of the
Holder of the Common Securities or of the Sponsor and
the expiration of ninety (90) days after the date of
revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Securities shall have been
called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders
in accordance with the terms of the Securities;
(v) upon the dissolution of the Trust in
accordance with the terms of the Securities and
pursuant to which all of the Subordinated Debentures
shall have been distributed to the Holders of
Securities in exchange for all of the Securities; or
(vi) upon delivery of written direction to the
Property Trustee by the Sponsor at any time (which
direction is wholly optional and within the discretion
of the Sponsor) to dissolve the Trust and distribute
the Subordinated Debentures to the Holders of the
Securities in accordance with Section 3 of Exhibit A
hereto.
(b) As soon as is practicable after the occur
rence of an event referred to in Section 8.1(a), the
Trustees shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities. (a)
Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. Any
transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Se
curities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and
any Related Party may only transfer Common Securities to the
Sponsor or a Related Party of the Sponsor, provided that any
such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters
that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor trust
and each Holder of Securities would not be treated as
owning an undivided beneficial interest in the
Subordinated Debentures; and
(ii) the Trust would be an Investment Company or
the transferee would be an Investment Company if the
transferee was not an Investment Company before the
transfer.
SECTION 9.2. Transfer of Certificates. The
Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of
any tax or other government charges which may be imposed in
relation to it. Upon surrender for registration of transfer
of any Certificate, the Regular Trustees shall cause one or
more new Certificates to be issued in the name of the
designated transferee or transferees. Every Certificate
surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form
satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of
a Certificate shall be entitled to the rights and subject to
the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed
to be bound by this Declaration and the documents
incorporated by reference herein.
SECTION 9.3. Deemed Security Holders. The
Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as
the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of
any Person, whether or not the Trustees shall have actual or
other notice thereof.
SECTION 9.4. Book Entry Interests. Unless
otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or
more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of,
the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name
of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred
Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Certificates,
except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been
issued to the Preferred Security Beneficial Owners pursuant
to Section 9.7:
(a) the provisions of this Section 9.4 shall be
in full force and effect;
(b) the Trust and the Trustees shall be entitled
to deal with the Clearing Agency for all purposes of
this Declaration (including the payment of
Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder
of the Preferred Securities and the sole holder of the
Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this
Section 9.4 conflict with any other provisions of this
Declaration, the provisions of this Section 9.4 shall
control; and
(d) the rights of the Preferred Security Bene
ficial Owners shall be exercised only through the
Clearing Agency and shall be limited to those
established by law and agreements between such
Preferred Security Beneficial 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 Distributions on the Global Certificates to such
Clearing Agency Participants.
SECTION 9.5. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless
and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7, the Regular Trustees 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 notice obligations to the Preferred
Security Beneficial Owners.
SECTION 9.6. Appointment of Successor Clearing
Agency. If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the
Preferred Securities, the Regular Trustees may, in their
sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
SECTION 9.7. Definitive Preferred Security
Certificates. If:
(a) a Clearing Agency elects to discontinue its
services as securities depositary with respect to the
Preferred Securities and a successor Clearing Agency is
not appointed within ninety (90) days after such discon
tinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect, after
consultation with the Sponsor, to terminate the book
entry system through the Clearing Agency with respect
to the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates
shall be prepared by the Regular Trustees on behalf of
the Trust with respect to such Preferred Securities;
and
(d) upon surrender of the Global Certificates by
the Clearing Agency, accompanied by registration in
structions, the Regular Trustees shall cause Definitive
Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the
Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may
conclusively rely on, and shall be protected in relying
on, such instructions. The Definitive Preferred
Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or
designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Preferred
Securities may be listed, or to conform to usage.
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen
Certificates. If:
(a) any mutilated Certificates should be sur
rendered to the Regular Trustees, or if the Regular
Trustees shall receive evidence to their satisfaction
of the destruction, loss or theft of any Certificate;
and
(b) there shall be delivered to the Regular
Trustees such security or indemnity as may be required
by them to keep each of them harmless,
then in the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any two Regular
Trustees on behalf of the Trust shall execute and deliver,
in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new
Certificate under this Section 9.8, the Regular Trustees may
require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an
ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability. (a) Except as
expressly set forth in this Declaration, the Subordinated
Debentures, the Preferred Securities Guarantee and the terms
of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any
portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall
be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of
the Trust or otherwise.
(b) The Sponsor shall be liable for all of the
debts and obligations of the Trust (other than with respect
to the Securities) to the extent not satisfied out of the
Trust's assets.
SECTION 10.2. Exculpation. (a) No Indemnified
Person shall be liable, responsible or accountable in
damages or otherwise to the Trust 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 Trust and in a manner such
Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person
by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim in
curred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee,
pursuant to Section 3.9, negligence) or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully pro
tected in relying in good faith upon the records of the
Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are
within such other Person's professional or expert competence
and who has been selected with reasonable care by or on
behalf of the Trust, 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 Holders of Securities might properly be
paid.
SECTION 10.3. 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 Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not
be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity
(other than duties imposed on the Property Trustee under the
Trust Indenture Act), 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 an Indemnified Person and Covered
Persons; or
(ii) whenever this Declaration 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
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, consid
ering 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
terms so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise.
(c) Whenever in this Declaration 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 enti
tled 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 Trust 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 Declaration or by
applicable law.
SECTION 10.4. Indemnification. (a) To the
fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person
from and against any loss, damage, liability, tax, penalty,
expense or claim incurred by such Indemnified Person by
reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to
be within the scope of authority conferred on such Indemni
fied Person by this Declaration, 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, in the case of the Property
Trustee, pursuant to Section 3.9, negligence) or willful
misconduct with respect to such acts or omissions.
(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 Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the
Sponsor 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 10.4(a). The rights to
indemnification set forth herein shall survive the
termination of this Declaration.
SECTION 10.5. Outside Businesses. Any Covered
Person, the Sponsor, the Delaware Trustee and the Property
Trustee may engage in or possess an interest in other
business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this
Declaration 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
Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Property Trustee
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 or other
opportunity. Any Covered Person, the Delaware Trustee and
the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depository for,
trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor
or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1. Fiscal Year. The fiscal year
("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 11.2. Certain Accounting Matters. (a)
At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall
reflect in reasonable detail, each transaction of the Trust.
The books of account shall be maintained on the accrual
method of accounting, in accordance with generally accepted
accounting principles consistently applied. The Trust shall
use the accrual method of accounting for United States
federal income tax purposes. The books of account and the
records of the Trust shall be examined by and reported upon
as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the
Regular Trustees.
(b) The Regular Trustees shall cause to be
prepared and delivered to each of the Holders of Securities,
within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of Securities,
an annual United States federal income tax information
statement, if one is required by the Code, containing such
information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regu
lations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements
within thirty (30) days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a Form
1041 or such other form required by United States federal
income tax law, and any other annual income tax returns re
quired to be filed by the Regular Trustees on behalf of the
Trust with any state or local taxing authority.
SECTION 11.3. Banking. The Trust shall maintain
one or more bank accounts in the name and for the sole
benefit of the Trust; provided, however, that all payments
of funds in respect of the Subordinated Debentures held by
the Property Trustee shall be made directly to the Property
Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole
signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4. Withholding. The Trust and the
Trustees shall comply with all withholding requirements
under United States federal, state and local law. The Trust
shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an
exemption from withholding with respect to each Holder, and
any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations.
The Regular Trustee(s) shall file required forms with
applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of
any claimed over-withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount
withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments. (a) Except as
otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by,
and only by, a written instrument approved and executed by
the Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees); provided,
however, that:
(i) no amendment shall be made, and any such
purported amendment shall be void and ineffective:
(1) unless, in the case of
any proposed amendment, the Property
Trustee shall have first received an
Officers' Certificate from each of the
Trust and the Sponsor that such
amendment is permitted by, and conforms
to, the terms of this Declaration
(including the terms of the Securities);
(2) unless, in the case of
any proposed amendment which affects the
rights, powers, duties, obligations or
immunities of the Property Trustee, the
Property Trustee shall have first
received:
(A) an Officers' Certificate from each
of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be
counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of
the Securities); and
(ii) no amendment shall be made, and any such
purported amendment shall be void and ineffective, to
the extent the result thereof would be to
(A) cause the Trust not to be characterized
for purposes of United States federal income
taxation as a grantor trust and each Holder of
Securities not to be treated as owning an
undivided beneficial interest in the Subordinated
Debentures, as evidenced by an Opinion of Counsel
to the effect that such amendment shall not result
in the foregoing;
(B) affect adversely the rights, powers,
duties, obligations or immunities of the Property
Trustee or the Delaware Trustee; or
(C) cause the Trust to be deemed to be an
Investment Company which is required to be regis
tered under the Investment Company Act;
(iii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment
which would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected
only with such additional requirements as may be set
forth in the terms of such Securities;
(iv) Section 9.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders of
the Securities;
(v) Article IV shall not be amended without the
consent of the Holders of a Majority in liquidation
amount of the Common Securities; and
(vi) the rights of the holders of the Common
Securities under Article V to increase or decrease the
number of, and appoint and remove, Trustees shall not
be amended without the consent of the Holders of a
Majority in liquidation amount of the Common
Securities.
(b) Notwithstanding Section 12.1(a)(iii), this
Declaration may be amended without the consent of the
Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with
any other provision of this Declaration;
(iii) to add to the covenants, restrictions or
obligations of the Sponsor; and
(iv) to conform to any change in Rule 3a-5 or
written change in interpretation or application of Rule
3a-5 by any legislative body, court, government agency
or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or
privileges of the Holders.
SECTION 12.2. Meetings of the Holders of
Securities; Action by Written Consent. (a) Meetings of the
Holders of any class of Securities may be called at any time
by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which
Holders of such class of Securities are entitled to act
under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading.
The Regular Trustees shall call a meeting of such class of
Holders, if directed to do so by the Holders of at least 10%
in liquidation amount of such class of Securities. Such
direction shall be given by delivering to the Regular
Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and
indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling
a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to
call a meeting and only those specified shall be counted for
purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in
the terms of the Securities, the following provisions shall
apply to meetings of Holders of Securities:
(i) Notice of any such meeting shall be given to
all the Holders of Securities having a right to vote
thereat at least seven (7) days and not more than sixty
(60) days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities
is permitted or required under this Declaration or the
rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of
the Holders of Securities. Any action that may be
taken at a meeting of the Holders of Securities may be
taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of
Securities in liquidation amount that would be neces
sary to authorize or take such action at a meeting at
which all Holders of Securities 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 Holders of Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify
that any written ballots submitted to the Holders of
Securities for the purpose of taking any action without
a meeting shall be returned to the Trust within the
time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which
such Holder of Securities 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 eleven (11) months from the
date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise
provided herein, 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 Trust were a Delaware corporation
and the Holders of the Securities were stockholders of
a Delaware corporation.
(iii) Each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such
other Person that the Regular Trustees may designate.
(iv) Unless the Business Trust Act, this
Declaration, the Trust Indenture Act, the terms of the
Securities or the listing rules of any stock exchange
on which the Preferred Securities are then listed or
trading otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all other
provisions relating to meetings of Holders of
Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be
voted on by any Holders of Securities, 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
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of
Property Trustee. The Trustee which acts as initial
Property Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Succes
sor Property Trustee represents and warrants to the Trust
and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Property Trustee
that:
(a) The Property Trustee is a national banking
association duly organized under the laws of the United
States of America, with trust power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(b) The execution, delivery and performance by
the Property Trustee of this Declaration has been duly
authorized by all necessary corporate action on the
part of the Property Trustee. This Declaration has
been duly executed and delivered by the Property
Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights
generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of
this Declaration by the Property Trustee does not
conflict with or constitute a breach of the Articles of
Organization or By-Laws of the Property Trustee.
(d) No consent, approval or authorization of, or
registration with or notice to, any State or Federal
banking authority is required for the execution,
delivery or performance by the Property Trustee of this
Declaration.
SECTION 13.2. Representations and Warranties of
Delaware Trustee. The Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this
Declaration, that the Delaware Trustee has been authorized
to perform its obligations under the Certificate of Trust
and this Declaration. This Declaration under Delaware law
constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting
creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices. All notices provided for
in this Declaration 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 Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below
(or such other address as the Trust may give notice of
to the Holders of the Securities):
KCPL FINANCING __
c/o Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106-2124
Attention: Treasurer
Facsimile: 816-556-2992
(b) if given to the Property Trustee, at the
mailing address set forth below (or such other address
as the Property Trustee may give notice of to the
Holders of the Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0216
Chicago, Illinois 60670-0216
Attention: Corporate Trust Administration
Facsimile: 312-407-4656
(c) if given to the Delaware Trustee, at the
mailing address of the Property Trustee with a copy to the
address set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the
Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Facsimile: 815-356-0391
(d) if given to the Holder of the Common Secu
rities, at the mailing address of the Sponsor set forth
below (or such other address as the Holder of the
Common Securities may give notice of to the Trust):
Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106-2124
Attention: Treasurer
Facsimile: 816-556-2992
(d) if given to any other Holder, at the address
set forth on the books and records of the Trust.
All such notices shall be deemed to have been
given when received in person, telecopied with receipt
confirmed, or mailed by first class mail, postage prepaid
except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 14.2. Governing Law. This Declaration
and the rights of the parties hereunder shall be governed by
and interpreted in accordance with the laws 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 14.3. Intention of the Parties. It is
the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes
as an association taxable as a corporation or a partnership
but rather, that the Trust be characterized as a grantor
trust or otherwise in a manner such that each Holder of
Securities be treated as owning an undivided beneficial
interest in the Subordinated Debentures. The provisions of
this Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4. Headings. Headings contained in
this Declaration are inserted for convenience of reference
only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5. Successors and Assigns. Whenever
in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall
be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall
bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
SECTION 14.6. Partial Enforceability. If any
provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, 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 14.7. Counterparts. This Declaration may
contain more than one counterpart of the signature page and
this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature 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.
IN WITNESS WHEREOF, the undersigned has caused
these presents to be executed as of the day and year first
above written.
__________________________
John J. DeStefano
as Trustee
_________________________
Andrea F. Bielsker
as Trustee
THE FIRST NATIONAL BANK OF CHICAGO
Not in its individual capacity but
solely as Property Trustee
By: _________________________
Name:
Title:
FIRST CHICAGO DELAWARE INC.
Not in its individual capacity
but solely as Delaware Trustee
By: _________________________
Name:
Title:
KANSAS CITY POWER & LIGHT COMPANY
as Sponsor
By: ______________________
Name:
Title:
EXHIBIT A
TERMS OF
____% TRUST ORIGINATED PREFERRED SECURITIES
____% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and
Restated Declaration of Trust of KCPL Financing ___ dated as
of ____________, 199_ (as amended from time to time, the
"Declaration"), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of
the Preferred Securities and the Common Securities are set
out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. Designation and Number.
(a) Preferred Securities. Preferred Securities
of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of ___________ million
dollars ($___________) and a liquidation amount with respect
to the assets of the Trust of $25 per Preferred Security,
are hereby designated for the purposes of identification
only as "____% Trust Originated Preferred Securities" (the
"Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
(b) Common Securities. Common Securities of the
Trust with an aggregate liquidation amount with respect to
the assets of the Trust of _______________________________
million dollars ($_________) and a liquidation amount with
respect to the assets of the Trust of $25 per Common
Security, are hereby designated for the purposes of
identification only as "____% Trust Originated Common
Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with
such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
2. Distributions. (a) Distributions payable on
each Security will be fixed at a rate per annum of ____%
(the "Coupon Rate") of the stated liquidation amount of $25
per Security, such rate being the rate of interest payable
on the Subordinated Debentures to be held by the Property
Trustee. Distributions in arrears will bear interest
compounded quarterly at the Coupon Rate to the extent
permitted by applicable law. The term "Distributions," as
used herein, includes any such interest payable unless
otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Subordinated
Debentures held by the Property Trustee. The amount of
Distributions payable for any period will be computed for
any full quarterly Distribution period on the basis of a 360-
day year of twelve 30-day months, and for any period shorter
than a full quarterly Distribution period, on the basis of
the actual number of days elapsed in such a 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ____________, 199_ and will be
payable quarterly in arrears, on March 31, June 30,
September 30, and December 31 of each year, commencing on
____________, 199_, except as otherwise described below.
The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment
period from time to time on the Subordinated Debentures for
a period not exceeding twenty consecutive quarters (each
such period, an "Extension Period") and, as a consequence of
such extension, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue
to accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate, compounded quarterly
during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such
Extension Period, together with all such previous and
further extensions thereof, may not exceed twenty
consecutive quarters or extend beyond the maturity of the
Subordinated Debentures. Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end
of the Extension Period. Upon the termination of any Exten
sion Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be
payable to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates.
While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day
prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Subordinated
Debentures. Subject to any applicable laws and regulations
and the provisions of the Declaration, each such payment in
respect of the Preferred Securities will be made as
described under the heading "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository
Trust Company" in the Prospectus dated __________, as
supplemented by the Prospectus Supplement dated
____________, 199_ (the "Prospectus") of the Trust included
in the Registration Statement on Form S-3 of the Sponsor and
the Trust. The relevant record dates for the Common
Securities, and if the Preferred Securities shall not
continue to remain in book-entry-only form, the relevant
record dates for the Preferred Securities, shall conform to
the rules of any securities exchange on which the securities
are listed and, if none, shall be selected by the Regular
Trustees, which dates shall be at least one Business Day but
less than 60 Business Days before the relevant payment dates
which payment dates correspond to the interest payment dates
on the Subordinated Debentures. Distributions payable on
any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture
Issuer having failed to make a payment under the
Subordianted Debentures, will cease to be payable to the
Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such
Securities are registered on the special record date or
other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable
on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next
succeeding day that 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.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata (as
defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution. In
the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the
Securities on the date of the dissolution, winding-up or
termination, as the case may be, will be entitled to receive
out of the assets of the Trust available for distribution to
Holders of Securities, after paying or making reasonable
provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act,
an amount equal to the aggregate of the stated liquidation
amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection
with such dissolution, winding-up or termination,
Subordinated Debentures in an aggregate principal amount
equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Coupon Rate
of, and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the
Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata
basis.
4. Redemption. (a) Upon the repayment of the
Subordinated Debentures in whole or in part, whether at
maturity or upon acceleration, redemption or otherwise, the
proceeds from such repayment or payment shall be
simultaneously applied to redeem Securities having an
aggregate stated liquidation amount equal to the aggregate
principal amount of the Subordinated Debentures so repaid or
redeemed at a redemption price of $25 per Security plus an
amount equal to accrued and unpaid Distributions thereon at
the date of the redemption, payable in cash (the "Redemption
Price"). Holders will be given not less than 30 nor more
than 60 days notice of such redemption except in the case of
payments upon maturity.
(b) If fewer than all the outstanding Securities
are to be so redeemed, the Common Securities and the
Preferred Securities will be redeemed Pro Rata and the
Preferred Securities to be redeemed will be as described in
Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined
below) shall occur and be continuing, the Regular Trustees,
upon not less than 30 nor more than 60 days notice, may
redeem the Securities in whole or in part for cash within 90
days following the occurrence of such Tax Event (the "90 Day
Period") at the Redemption Price on a Pro Rata basis
provided, that, if at the time there is available to the
Trust the opportunity to eliminate, within the 90 Day
Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure
that has no adverse effect on the Sponsor, the Trust, the
Debenture Issuer or the Holders of the Securities, the Trust
will pursue such Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall
have received an opinion from independent tax counsel
experienced in such matters (a "Redemption Tax Opinion") to
the effect that, on or after the latest date of the
Prospectus, 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 therefor or
therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or
regulations by any legislative body, court, governmental
agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which
interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after the date of
the Prospectus, there is more than an insubstantial risk
that interest payable by the Debenture Issuer to the Trust
on the Subordinated Debentures is not, or within 90 days of
the date thereof will not be, deductible, in whole or in
part, by the Debenture Issuer for United States federal
income tax purposes.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid
Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the
date of redemption.
5. Distribution of Subordinated Debentures in
Exchange for Securities. (a) On and from the date fixed by
the Trustees for any distribution of Subordinated Debentures
upon dissolution of the Trust: (i) the Securities will no
longer be deemed to be outstanding, (ii) The Depository
Trust Company (the "Depositary") or its nominee (or any
successor Clearing Agency or its nominee), as the record
Holder of the Preferred Securities, will receive a
registered global certificate or certificates representing
the Subordinated Debentures to be delivered upon such
distribution and any certificates representing Securities,
except for certificates representing Preferred Securities
held by the Depository or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Subordinated Debentures having
an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to
the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on, such Securities until
such certificates are presented to the Debenture Issuer or
its agent for transfer or reissue.
(b) If the Subordinated Debentures are
distributed to holders of the Securities, pursuant to the
terms of the Indenture, the Debenture Issuer will use its
best efforts to have the Subordinated Debentures listed on
the New York Stock Exchange or on such other exchange as the
Preferred Securities were listed immediately prior to the
distribution of the Subordianted Debentures.
6. Redemption or Distribution Procedures. (a)
Notice of any redemption of, or notice of distribution of
Subordinated Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or ex
changed not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Subordinated Debentures. For purposes of the calcu
lation of the date of redemption or exchange and the dates
on which notices are given pursuant to this Section 6(a), a
Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(b) In the event that fewer than all the
outstanding Securities are to be redeemed, the Securities to
be redeemed shall be redeemed Pro Rata from each Holder of
Preferred Securities; provided that if, as a result of such
Pro Rata redemption, Clearing Agency Participants would hold
fractional interests in the Preferred Securities, the
Depositary will adjust the amount of the interest of each
Clearing Agency Participant to be redeemed to avoid such
fractional interests.
(c) If Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice, which notice
may only be issued if the Subordinated Debentures are
redeemed as set out in this Section 4 (which notice will be
irrevocable), then (i) while the Preferred Securities are in
book entry only form, with respect to the Preferred Securi
ties, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Subordinated
Debentures, the Property Trustee will deposit irrevocably
with the Depositary or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to the Preferred
Securities and will give the Depositary irrevocable
instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities, and (ii) if the
Preferred Securities are issued in definitive form, with
respect to the Preferred Securities, and with respect to the
Common Securities, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the
Subordinated Debentures, the Property Trustee will pay the
relevant Redemption Price to the Holders of such Securities
by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall
have been given and funds have been deposited as required,
if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption
date, as applicable, all rights of Holders of such
Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption
Price. Neither the Regular Trustees nor the Trust shall be
required to register or cause to be registered the transfer
of any Securities which have been so called for redemption.
If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding day that 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 each case with
the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect
of Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as
Guarantor pursuant to the Preferred Securities Guarantee,
Distributions on such Securities will continue to accrue,
from the original redemption date to the actual 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.
(d) Redemption/Distribution Notices shall be sent
to (i) in respect of the Preferred Securities, the
Depositary or its nominee (or any successor Clearing Agency
or its nominee) if Global Certificates have been issued or
if Definitive Preferred Security Certificates have been
issued, to the Holders thereof, and (ii) in respect of the
Common Securities, to the Holders thereof.
(e) Subject to applicable law (including, without
limitation, United States federal securities laws), the
Sponsor or any of its Affiliates may at any time and from
time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
7. Voting Rights - Preferred Securities. (a)
Except as provided under Sections 7(b) and 9 and as
otherwise required by law and the Declaration, the Holders
of the Preferred Securities will have no voting rights.
(b) The Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a
class, may direct the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under the Declaration, including (i)
directing the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trust
ee, or executing any trust or power conferred on the
Debenture Trustee with respect to the Subordinated
Debentures, (ii) waive any past default and its consequences
that are waivable under the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal
of all the Subordinated Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termi
nation of the Indenture or the Subordinated Debentures,
where such consent shall be required, provided, however,
that where a consent under the Indenture would require the
consent of greater than a majority of the Holders in
principal amount of Subordinated Debentures affected thereby
(a "Super Majority"), the Property Trustee may only give
such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
which the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Debentures.
The Property Trustee shall not take any action in accordance
with the directions of the Holders of the Preferred
Securities under this paragraph unless the Property Trustee
has obtained an opinion of independent tax counsel to the
effect that, for the purposes of United States federal
income tax, the Trust will not be classified as other than a
grantor trust on account of such action and that each Holder
of Securities will continue to be treated as owning an
undivided beneficial interest in the Subordinated Debentures
on account of such action. If the Property Trustee fails to
enforce its rights under the Declaration, any Holder of
Preferred Securities may institute a legal proceeding
directly against any Person to enforce the Property
Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee
or any other Person.
Any approval or direction of Holders of 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 Holders of Securities in the Trust or pursuant
to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of 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 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 the Preferred
Securities will be required for the Trust to redeem and
cancel Preferred Securities or to distribute the
Subordinated Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding that Holders of Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Preferred
Securities that are owned by the Sponsor, or by any entity
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Sponsor, 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.
8. Voting Rights - Common Securities. (a)
Except as provided under Section 8(b) and (c) and as
otherwise required by law and the Declaration, the Holders
of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are
entitled, in accordance with Article V of the Declaration,
to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees.
(c) Only after the Event of Default with respect
to the Preferred Securities has been cured, waived or
otherwise eliminated, the Holders of a Majority in
liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method and place
of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under the Declaration, including
(i) directing the time, method and place of conducting any
proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the
Debenture Trustee with respect to the Subordinated
Debentures, (ii) waive any past default and its consequences
that 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 Subordinated Debentures shall be
due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the
Subordinated Debentures, where such consent shall be
required, provided, however, that where a consent under the
Indenture would require the consent of a Super Majority, the
Property Trustee may only give such consent at the direction
of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the
Subordinated Debentures. The Property Trustee shall not
take any action in accordance with the directions of the
Holders of the Common Securities under this paragraph unless
the Property Trustee has obtained an opinion of independent
tax counsel to the effect that, for the purposes of United
States federal income tax, the Trust will not be classified
as other than a grantor trust on account of such action and
that each Holder of Securities will continue to be treated
as owning an undivided beneficial interest in the
Subordinated Debentures on account of such action. If the
Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a
legal proceeding directly against any Person to enforce the
Property Trustee's rights under the Declaration, without
first instituting a legal proceeding against the Property
Trustee or any other Person.
Any approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of
all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of Common 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 Common 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 the Common
Securities will be required for the Trust to redeem and
cancel Common Securities or to distribute the Subordinated
Debentures in accordance with the Declaration and the terms
of the Securities.
9. Amendments. If any proposed amendment to the
Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section
8.1 of the Declaration, then the Holders of outstanding
Securities, as a single class, will be entitled to vote on
such amendment or proposal (but not on any other amendment
or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at
least 66-2/3 in liquidation amount of the Securities
affected thereby, provided that a reduction of the aggregate
liquidation amount or the distribution rate, or a change in
the payment dates or maturities of the Preferred Securities
shall not be permitted without the consent of each holder of
the Preferred Securities. In the event any amendment or
proposal referred to in clause (i) above would adversely
affect only the Preferred Securities or the Common
Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of
66-2/3 in liquidation amount of such class of Securities.
10. Pro Rata. A reference in these terms of the
Securities to any payment, distribution or treatment as
being "Pro Rata" shall mean pro rata to each Holder of
Securities according to the aggregate liquidation amount of
the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstand
ing unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which
case any funds available to make such payment shall be paid
first to each Holder of the Preferred Securities pro rata
according to the aggregate liquidation amount of Preferred
Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed
to the Holders of the Preferred Securities, to each Holder
of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
11. Ranking. The Preferred Securities rank pari
passu and payment thereon shall be made Pro Rata with the
Common Securities except that when an Event of Default
occurs and is continuing, the rights of Holders of the
Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the
Preferred Securities.
12. Listing. The Regular Trustees shall use
their best efforts to cause the Preferred Securities to be
listed for quotation on the New York Stock Exchange, Inc.
13. Acceptance of Securities Guarantee and
Indenture. Each Holder of Preferred Securities and Common
Securities, by the acceptance thereof, agrees to the
provisions of the Preferred Securities Guarantee, including
the subordination provisions therein and to the provisions
therein and to the provisions of the Indenture.
14. No Preemptive Rights. The Holders of the
Securities shall have no preemptive rights to subscribe for
any additional Securities.
15. Miscellaneous. These terms constitute a part
of the Declaration.
The Sponsor will provide a copy of the Declaration
and the Preferred Securities Guarantee to a Holder without
charge on written request to the Sponsor at its principal
place of business.
Annex I
Form of Preferred Security Certificate
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL
CERTIFICATE INSERT - This Preferred Security is a Global
Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of
the Depositary. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer
of this Preferred Security as a whole (except by the
Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depository) may be registered except in limited
circumstances.
Unless this Preferred Security is presented by an
authorized representative of The Depository Trust Company
(55 Water Street, New York, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of
Cede & Co. or such other name as is 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.]
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
KCPL FINANCING __
Preferred Securities
(Liquidation Amount $25 per Preferred Security)
KCPL FINANCING __, a business trust formed under
the laws of the State of Delaware (the "Trust"), hereby
certifies that ________ (the "Holder") is the registered
owner of preferred securities of the Trust representing
undivided beneficial interests in the assets of the Trust
designated the ____% Trust Originated Preferred Securities
(liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated
as of ____________, 199_, as the same may be amended from
time to time (the "Declaration"), including the designation
of the terms of the Preferred Securities as set forth in
Exhibit A to the Declaration. Capitalized terms used herein
but not defined herein shall have the respective meanings
given them in the Declaration. The Holder is entitled to
the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Trust will provide a copy of
the Declaration and the Preferred Securities Guarantee to
the Holder without charge upon written request to the Trust
at its principal place of business.
Upon receipt of this certificate, the Holder is
bound by the Declaration and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat the
Subordinated Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in
the Subordinated Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ________ day of ________, ________.
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
By: ____________________
__________________________
as Trustee
_________________________
as Trustee
__________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security Certificate to:
____________________________________________________________
____________________________________________________________
____________________________________
(Insert assignee's social security or tax identification
number)
____________________________________________________________
____________________________________________________________
____________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
agent to transfer this Preferred Security Certificate
on the books of the Trust. The agent may substitute another
to act for him or her.
Date: _________________________
Signature: ____________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate.)
Annex II
Form of Common Security Certificate
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
KCPL FINANCING __
Common Securities
(Liquidation Amount $25 per Common Security)
KCPL FINANCING __, a business trust formed under
the laws of the State of Delaware (the "Trust"), hereby
certifies that _____ (the "Holder") is the registered owner
of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust designated
the ____% Trust Originated Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities").
The Common Securities are transferable on the books and
records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust
of the Trust dated as of ____________, 199_, as the same may
be amended from time to time (the "Declaration"), including
the designation of the terms of the Common Securities as set
forth in Exhibit A to the Declaration. Capitalized terms
used herein but not defined herein shall have the respective
meanings given them in the Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee
to the extent provided therein. The Trust will provide a
copy of the Declaration and the Common Securities Guarantee
to the Holder without charge upon written request to the
Trust at its principal place of business.
Upon receipt of this certificate, the Holder is
bound by the Declaration and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat the
Subordinated Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in
the Subordinated Debentures.
IN WITNESS WHEREOF, the Trust has executed this
certificate this ____ day of ________, ________.
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
By: ____________________
_________________________
as Trustee
_________________________
as Trustee
______________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Common Security Certificate to:
____________________________________________________________
____________________________________________________________
(Insert assignee's social security or tax identification
number)
____________________________________________________________
____________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
____________________________________________________________
agent to transfer this Common Security Certificate on the
books of the Trust. The agent may substitute another to act
for him or her.
Date: _________________________
Signature: ____________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate.)
Exhibit 4-c
KANSAS CITY POWER & LIGHT COMPANY
Issuer
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
INDENTURE
Dated as of __________, 199_
Subordinated Debt Securities
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions of Terms 1
SECTION 1.02. Interpretation 9
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBT SECURITIES 9
SECTION 2.01. Designation and Terms of Debt Securities 9
SECTION 2.02. Form of Debt Securities and Trustee's
Certificate 11
SECTION 2.03. Denominations; Provisions for Payment 12
SECTION 2.04. Execution and Authentication 14
SECTION 2.05. Registration of Transfer and Exchange 15
SECTION 2.06. Temporary Securities 16
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Debt Securities 17
SECTION 2.08. Cancellation 18
SECTION 2.09. Benefits of Indenture 18
SECTION 2.10. Authenticating Agent 18
SECTION 2.11. Global Securities 19
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS 21
SECTION 3.01. Redemption 21
SECTION 3.02. Notice of Redemption 21
SECTION 3.03. Payment Upon Redemption 22
SECTION 3.04. Sinking Fund 23
SECTION 3.05. Satisfaction of Sinking Fund Payments
with Debt Securities 23
SECTION 3.06. Redemption of Debt Securities for
Sinking Fund 24
ARTICLE IV
COVENANTS OF THE COMPANY 24
SECTION 4.01. Payment of Principal, Premium and Interest 24
SECTION 4.02. Maintenance of Office or Agency 24
SECTION 4.03. Paying Agents 25
SECTION 4.04. Appointment to Fill Vacancy in Office of
Trustee 26
SECTION 4.05. Compliance with Consolidation Provisions 26
SECTION 4.06. Limitation on Dividends; Transactions
with Affiliates 26
SECTION 4.07. Covenants as to Trust 28
SECTION 4.08. Corporate Existence 28
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE 28
SECTION 5.01. Company to Furnish Trustee Names and
Addresses of Securityholders 28
SECTION 5.02. Preservation Of Information;
Communications With Securityholders 29
SECTION 5.03. Reports By the Company 29
SECTION 5.04. Reports by the Trustee 30
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT 30
SECTION 6.01. Events of Default 30
SECTION 6.02. Collection of Indebtedness and Suits for
Enforcement by Trustee 33
SECTION 6.03. Application of Moneys Collected 35
SECTION 6.04. Limitation on Suits 35
SECTION 6.05. Rights and Remedies Cumulative; Delay or
Omission Not Waiver 36
SECTION 6.06. Control by Securityholders 37
SECTION 6.07. Undertaking to Pay Costs 37
SECTION 6.08. Acknowledgement Regarding Preferred
Securities Holders 38
ARTICLE VII
CONCERNING THE TRUSTEE 38
SECTION 7.01. Certain Duties and Responsibilities of
Trustee 38
SECTION 7.02. Certain Rights of Trustee 40
SECTION 7.03. Trustee Not Responsible for Recitals or
Issuance of Debt Securities 41
SECTION 7.04. May Hold Debt Securities 42
SECTION 7.05. Moneys Held in Trust 42
SECTION 7.06. Compensation and Reimbursement 42
SECTION 7.07. Reliance on Officers' Certificate 43
SECTION 7.08. Qualification; Conflicting Interests 43
SECTION 7.09. Corporate Trustee Required; Eligibility 43
SECTION 7.10. Resignation and Removal; Appointment of
Successor 44
SECTION 7.11. Acceptance of Appointment By Successor 45
SECTION 7.12. Merger, Conversion, Consolidation or
Succession to Business 47
SECTION 7.13. Preferential Collection of Claims Against
the Company 47
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS 48
SECTION 8.01. Evidence of Action by Securityholders 48
SECTION 8.02. Proof of Execution by Securityholders 48
SECTION 8.03. Who May be Deemed Owners 49
SECTION 8.04. Certain Debt Securities Owned by Company
Disregarded 49
SECTION 8.05. Actions Binding on Future Securityholders 50
ARTICLE IX
SUPPLEMENTAL INDENTURES 50
SECTION 9.01. Supplemental Indentures Without the
Consent of Securityholders 50
SECTION 9.02. Supplemental Indentures With Consent of
Securityholders 51
SECTION 9.03. Effect of Supplemental Indentures 52
SECTION 9.04. Debt Securities Affected by Supplemental
Indentures 52
SECTION 9.05. Execution of Supplemental Indentures 53
ARTICLE X
SUCCESSOR CORPORATION 53
SECTION 10.01. Company May Consolidate, Etc. 53
SECTION 10.02. Successor Corporation Substituted 54
SECTION 10.03. Evidence of Consolidation, Etc. to
Trustee 54
ARTICLE XI
SATISFACTION AND DISCHARGE 55
SECTION 11.01. Satisfaction and Discharge of Indenture 55
SECTION 11.02. Discharge of Obligations 56
SECTION 11.03. Deposited Moneys to be Held in Trust 56
SECTION 11.04. Payment of Moneys Held by Paying Agents 56
SECTION 11.05. Repayment to Company 57
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 57
SECTION 12.01. No Recourse 57
ARTICLE XIII
MISCELLANEOUS PROVISIONS 58
SECTION 13.01. Effect on Successors and Assigns 58
SECTION 13.02. Actions by Successor 58
SECTION 13.03. Surrender of Company Powers 58
SECTION 13.04. Notices 58
SECTION 13.05. Governing Law 58
SECTION 13.06. Treatment of the Debt Securities as Debt 59
SECTION 13.07. Compliance Certificates and Opinions 59
SECTION 13.08. Payments on Business Days 59
SECTION 13.09. Conflict with Trust Indenture Act 60
SECTION 13.10. Counterparts 60
SECTION 13.11. Separability 60
SECTION 13.12. Assignment 60
SECTION 13.13. Acknowledgment of Rights 60
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES 60
SECTION 14.01. Subordination Terms 61
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
____________________ __________
310(a) 7.09
310(b) 7.08
7.10
310(c) Inapplicable
311(a) 7.13(a)
311(b) 7.13(b)
311(c) Inapplicable
312(a) 5.01
5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b) 5.04(b)
313(c) 5.04(a)
5.04(b)
313(d) 5.04(c)
314(a) 5.03
314(b) Inapplicable
314(c) 13.06
314(d) Inapplicable
314(e) 13.06
314(f) Inapplicable
315(a) 7.01(a)
7.02
315(b) 6.07
315(c) 7.01
315(d) 7.01(b)
7.01(c)
315(e) 6.07
316(a) 6.06
8.04
316(b) 6.04
316(c) 8.01
317(a) 6.02
317(b) 4.03
318(a) 13.08
* This Cross-Reference Table does not constitute part of
the Indenture and shall not have any bearing on the
interpretation of Any of its terms or provisions.
THIS INDENTURE, dated as of __________, 199_,
between KANSAS CITY POWER & LIGHT COMPANY, a Missouri
corporation (the "Company") and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, duly organized and
existing under the laws of the United States as trustee (the
"Trustee"):
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the
Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of unsecured
subordinated debt securities (hereinafter referred to as the
"Debt Securities"), in an unlimited aggregate principal
amount to be issued from time to time in one or more series
as in this Indenture provided, as registered Debt Securities
without coupons, to be authenticated by the certificate of
the Trustee;
WHEREAS, to provide the terms and conditions upon
which the Debt Securities are to be authenticated, issued
and delivered, the Company has duly authorized the execution
of this Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance
with its terms, have been done;
NOW, THEREFORE, in consideration of the premises
and the purchase of the Debt Securities by the holders
thereof, it is mutually covenanted and agreed as follows for
the equal and ratable benefit of the holders of Debt
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions of Terms. The terms
defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective
meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in
this Indenture that are defined in the Trust Indenture Act
of 1939, as amended, or that are by reference in such Act
defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of
this instrument.
Affiliate:
The term "Affiliate" shall mean, 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
individual, any entity of which the specified Person is an
officer, director or general partner.
Authenticating Agent:
The term "Authenticating Agent" shall mean an
authenticating agent with respect to all or any of the
series of Debt Securities appointed with respect to all of
such series of the Debt Securities by the Trustee pursuant
to Section 2.10.
Bankruptcy Law:
The term "Bankruptcy Law" shall mean Title 11,
United States Code, or any similar federal or state law for
the relief of debtors.
Board of Directors:
The term "Board of Directors" shall mean the board
of directors of the Company, or any duly authorized
committee of such board or any officer of the Company duly
authorized by the board of directors of the Company or a
duly authorized committee of that board.
Board Resolution:
The term "Board Resolution" shall mean 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; provided that any Board
Resolution that is adopted by an officer of the Company
shall be accompanied by a copy of a resolution of either the
board of directors of the Company or a duly authorized
committee of that board, certified as aforesaid, authorizing
such officer to take such action.
Business Day:
The term "Business Day" shall mean, with respect
to any series of Debt Securities, any day other than a day
on which federal or state banking institutions in Chicago,
Illinois or the Borough of Manhattan, The City of New York,
are authorized or obligated by law, executive order or
regulation to close.
Certificate:
The term "Certificate" shall mean a certificate
signed by the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Company. The Certificate need not comply
with the provisions of Section 13.07.
Common Securities:
The term "Common Securities" shall mean undivided
beneficial interests in the assets of a Trust which rank
pari passu with Preferred Securities issued by such Trust;
provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to
payment in respect of distributions and payments upon
liquidation, redemption and maturity are subordinated to the
rights of holders of Preferred Securities.
Company:
The term "Company" shall mean Kansas City Power &
Light Company, a corporation duly organized and existing
under the laws of the State of Missouri, and, subject to the
provisions of Article X, shall also include its successors
and assigns.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the
office of the Trustee at which, at any particular time, its
corporate trust business shall be principally administered,
which office at the date hereof is located at One First
National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust Administration.
Custodian:
The term "Custodian" shall mean any receiver,
trustee, assignee, liquidator, or similar official under any
Bankruptcy Law.
Declaration:
The term "Declaration" shall mean, in respect of a
Trust, the amended and restated declaration of trust of such
Trust or any other governing instrument of such Trust.
Debt Securities:
The term "Debt Securities" shall mean the Debt
Securities authenticated and delivered under this Indenture.
Default:
The term "Default" shall mean any event, act or
condition that with notice or lapse of time, or both, would
constitute an Event of Default.
Defaulted Interest:
The term "Defaulted Interest" has the meaning
specified in Section 2.03.
Depositary:
The term "Depositary" shall mean, with respect to
Debt Securities of any series for which the Company shall
determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered
as a clearing agency under the Exchange Act or other
applicable statute or regulation, which, in each case, shall
be designated by the Company pursuant to either Section 2.01
or 2.11.
Event of Default:
The term "Event of Default" shall mean, with
respect to Debt Securities of a particular series, any event
specified in Section 6.01, continued for the period of time,
if any, therein designated.
Exchange Act:
The term "Exchange Act" shall mean the Securities
Exchange Act of 1934.
Global Security:
The term "Global Security" shall mean, with
respect to any series of Debt Securities, a Debt Security
executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all
in accordance with this Indenture, which shall be registered
in the name of the Depositary or its nominee.
Governmental Obligations:
The term "Governmental Obligations" shall mean
securities that are (i) direct obligations of the United
States of America for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depositary
receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with
respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental
Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that
(except as required by law) such custodian is not authorized
to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the
specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary
receipt.
herein, hereof and hereunder:
The terms "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.
Indenture:
The term "Indenture" shall mean 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 in accordance with the
terms hereof.
Interest Payment Date:
The term "Interest Payment Date", when used with
respect to any installment of interest on a Debt Security of
a particular series, means the date specified in such Debt
Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed
date on which an installment of interest with respect to
Debt Securities of that series is due and payable.
Officers' Certificate:
The term "Officers' Certificate" shall mean a
certificate signed by the President or a Vice President and
by the Treasurer or an Assistant Treasurer or the Controller
or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate
shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an
opinion in writing of legal counsel, who may be an employee
of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section
13.07, if and to the extent required by the provisions
thereof.
Outstanding:
The term "Outstanding", when used with reference
to Debt Securities of any series, means, subject to the
provisions of Section 8.04, as of any particular time, all
Debt Securities of that series theretofore authenticated and
delivered by the Trustee under this Indenture, except (a)
Debt Securities theretofore canceled by the Trustee or any
paying agent, or delivered to the Trustee or any paying
agent for cancellation or that have previously been
canceled; (b) Debt Securities or portions thereof for the
payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided, however, that if such
Debt Securities or portions of such Debt Securities are to
be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided,
or provision satisfactory to the Trustee shall have been
made for giving such notice, (c) Debt Securities in lieu of
or in substitution for which other Debt Securities shall
have been authenticated and delivered pursuant to the terms
of Section 2.07; and (d) Debt Securities with respect to
which the Company has effected defeasance and/or covenant
defeasance as provided in Article XI.
Person:
The term "Person" shall mean any individual,
corporation, partnership, limited liability company, joint
venture, joint-stock company, unincorporated organization or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Predecessor Security:
The term "Predecessor Security" of any particular
Debt Security means every previous Debt Security evidencing
all or a portion of the same debt and guarantee as that
evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated
and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen Debt
Security.
Preferred Securities:
The term "Preferred Securities" shall mean
undivided beneficial interests in the assets of a Trust
which rank pari passu with Common Securities issued by such
trust; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Common Securities
to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to
the rights of holders of Preferred Securities.
Preferred Securities Guarantee:
The term "Preferred Securities Guarantee" shall
mean any guarantee that the Company may enter into with a
Trust or other Persons that operate directly or indirectly
for the benefit of holders of Preferred Securities of such
Trust.
Property Trustee:
The term "Property Trustee" shall mean the entity
performing the functions of the Property Trustee of a Trust
under the applicable Declaration of such Trust.
Responsible Officer:
The term "Responsible Officer," when used with
respect to the Trustee, means the Chairman of the board of
directors, the President, any Vice President, the Secretary,
the Treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust
matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
Securityholder, Holder, holder of Debt Securities,
registered holder:
The terms "Securityholder", "Holder", "Holder of
Debt Securities", "registered holder", or other similar
term, means the Person or Persons in whose name or names a
particular Debt Security shall be registered on the books of
the Company kept for that purpose in accordance with the
terms of this Indenture.
Security Register and Security Registrar:
The terms "Security Register" and "Security
Registrar" have the respective meanings set forth in Section
2.05.
Subsidiary:
The term "Subsidiary" shall mean, with respect to
any Person, (i) any corporation at least a majority of whose
outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of
its Subsidiaries or by such Person and one or more of its
Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of whose outstanding
partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii)
any limited partnership of which such Person or any of its
Subsidiaries is a general partner.
Trust:
The term "Trust" shall mean any Delaware business
trust formed by the Company for the purpose of purchasing
Debt Securities of the Company.
Trustee:
The term "Trustee" shall mean The First National
Bank of Chicago, not in its individual capacity, and,
subject to the provisions of Article VII, shall also include
its successors and assigns, and, if at any time there is
more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee,"
as used with respect to a particular series of Debt
Securities, shall mean the trustee with respect to that
series.
Trust Indenture Act:
The term "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939.
Trust Securities:
The term "Trust Securities" shall mean Common
Securities and Preferred Securities.
Voting Stock:
The term "Voting Stock", as applied to stock of
any Person, means shares, interests, participations or other
equivalents in the equity interest (however designated) in
such Person having ordinary voting power for the election of
a majority of the directors (or the equivalent) of such
Person, other than shares, interests, participations or
other equivalents having such power only by reason of the
occurrence of a contingency.
SECTION 1.02. Interpretation. Each definition in
this Indenture includes the singular and the plural, and
references to the neuter gender include the masculine and
feminine where appropriate. Terms which relate to
accounting matters shall be interpreted in accordance with
generally accepted accounting principles in effect from time
to time. References to any statute mean such statute as
amended at the time and include any successor legislation.
The word "or" is not exclusive, and the words "herein,"
"hereof" and "hereunder" refer to this Indenture as a whole.
The headings to the Articles and Sections are for
convenience of reference and shall not affect the meaning or
interpretation of this Indenture. References to Articles
and Sections mean the Articles and Sections of this
Indenture.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Designation and Terms of Debt
Securities. The aggregate principal amount of Debt
Securities that may be authenticated and delivered under
this Indenture is unlimited. The Debt Securities may be
issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the
Company or pursuant to one or more indentures supplemental
hereto. Prior to the initial issuance of Debt Securities of
any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an
Officers' Certificate of the Company, or established in one
or more indentures supplemental hereto:
(1) the title of the series of Debt Security
(which shall distinguish the Debt Securities of that
series from all other series of Debt Securities);
(2) any limit upon the aggregate principal amount
of the Debt Securities of that series that may be
authenticated and delivered under this Indenture
(except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for,
or in lieu of, other Debt Securities of that series);
(3) the date or dates on which the principal of
the Debt Securities of that series is payable;
(4) the rate or rates at which the Debt
Securities of that series shall bear interest or the
manner of calculation of such rate or rates, if any;
(5) 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 date for
the determination of holders to whom interest is
payable on any such Interest Payment Dates;
(6) the right, if any, to extend the interest
payment periods and the duration of such extension;
(7) the period or periods within which, the price
or prices at which, and the terms and conditions upon
which, Debt Securities of that series may be redeemed,
in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to
redeem or purchase Debt Securities of that series
pursuant to any sinking fund or analogous provisions
(including payments made in cash in anticipation of
future sinking fund obligations) 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, Debt Securities of that series
shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the subordination terms of the Debt
Securities of that series;
(10) the form of the Debt Securities of that
series, including the form of the Certificate of
Authentication for such series;
(11) if other than denominations of twenty-five
U.S. dollars ($25) or any integral multiple thereof,
the denominations in which the Debt Securities of that
series shall be issuable;
(12) whether and under what circumstances the
Company will pay additional amounts on the Debt
Securities of the series to any Holder who is not a
United States Person (including any modification to the
definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Debt
Securities rather than pay such additional amounts (and
the terms of any such option);
(13) any and all other terms with respect to such
series (which terms shall not be inconsistent with the
terms of this Indenture), including any terms which may
be required by or advisable under United States laws or
regulations or advisable in connection with the
marketing of Debt Securities of that series; and
(14) whether the Debt Securities are issuable as
a Global Security and, in such case, the identity of
the Depositary for such series.
All Debt Securities of any one series shall be
substantially identical except as to denomination and except
as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by
action taken pursuant to a Board Resolution of the Company,
a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting
forth the terms of such series.
SECTION 2.02. Form of Debt Securities and
Trustee's Certificate. The Debt Securities of any series
and the Trustee's certificate of authentication to be borne
by such Debt Securities shall be substantially of the tenor
and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution of
the Company and as set forth in an Officers' Certificate of
the Company, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock
exchange on which Debt Securities of that series may be
listed, or to conform to usage.
SECTION 2.03. Denominations; Provisions for
Payment. The Debt Securities shall be issuable as
registered Debt Securities and in the denominations of
twenty-five U.S. dollars ($25) or any integral multiple
thereof, subject to Section 2.01(11). The Debt Securities of
a particular series shall bear interest payable on the dates
and at the rate specified with respect to that series. The
principal of and the interest on the Debt Securities of any
series, as well as any premium thereon in case of redemption
thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is
legal tender for public and private debt, at the office or
agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each
Debt Security shall be dated the date of its authentication.
Interest on the Debt Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Debt Security that
is payable, and is punctually paid or duly provided for, on
any Interest Payment Date for Debt Securities of that series
shall be paid to the Person in whose name said Debt Security
(or one or more Predecessor Debt Securities) is registered
at the close of business on the regular record date for such
interest installment. In the event that any Debt Security
of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on
such Debt Security will be paid upon presentation and
surrender of such Debt Security as provided in Section 3.03.
Any interest on any Debt Security that is payable,
but is not punctually paid or duly provided for, on any
Interest Payment Date for Debt Securities of that series
(herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder;
and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted
Interest on Debt Securities to the Persons in whose
names such Debt Securities (or their respective
Predecessor Debt Securities) 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 such
Debt Security 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
not be more than 15 nor 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 postage prepaid, to each
Securityholder at the address of such Securityholder as
it appears in the Security Register (as hereinafter
defined), 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names
such Debt Securities (or their respective Predecessor
Debt Securities) are registered on such special record
date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on any Debt Securities in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Debt Securities may
be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to
the Trustees of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practic
able by the Trustee.
Unless otherwise set forth in a Board Resolution
of the Company or one or more indentures supplemental hereto
establishing the terms of any series of Debt Securities
pursuant to Section 2.01 hereof, the term "regular record
date" as used in this Section with respect to a series of
Debt Securities with respect to any Interest Payment Date
for such series shall mean either (a) the fifteenth day of
the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant
to Section 2.01 hereof shall occur, if such Interest Payment
Date is the first day of a month, (b) the fifteenth day of
the month in which an Interest Payment Date established for
such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the last day of such month, or
(c) the last day of the month immediately preceding the
month in which an Interest Payment Date established for such
series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the fifteenth day of a month,
whether or not such date is a Business Day.
Subject to the foregoing provisions of this
Section, each Debt Security of a series delivered under this
Indenture upon transfer of or in exchange for or in lieu of
any other Debt Security of such series shall carry the
rights to interest accrued and unpaid, and to accrue, that
were carried by such other Debt Security.
SECTION 2.04. Execution and Authentication. The
Debt Securities shall be signed on behalf of the Company by
its President or one of its Vice Presidents, and attested by
its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of
any Person who shall have been a President or Vice President
thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that
at the time the Debt Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be
the President or a Vice President, or the Secretary or an
Assistant Secretary, of the Company. The seal, if any, of
the Company may be in the form of a facsimile of such seal
and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities. The Debt Securities may
contain such notations, legends or endorsements required by
law, stock exchange rule or usage. Each Debt Security shall
be dated the date of its authentication by the Trustee.
A Debt Security shall not be valid until
authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature
shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of
this Indenture.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Debt Securities of any series executed by the
Company to the Trustee for authentication, together with a
written order of the Company for the authentication and
delivery of such Debt Securities, signed by its President or
any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written
order shall authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and
accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee
shall be entitled to receive, and (subject to Section 7.01)
shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been
established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate
such Debt Securities if the issue of such Debt Securities
pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Debt Securities and
this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.05. Registration of Transfer and
Exchange.
(a) Debt Securities of any series may be
exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, for other Debt
Securities of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In
respect of any Debt Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in exchange therefor
the Debt Security or Debt Securities of the same series that
the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept,
at its office or agency designated for such purpose in the
Borough of Manhattan, the City and State of New York, or
such other location designated by the Company a register or
registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Debt Securities
and the transfers of Debt Securities as in this Article
provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Debt Securities and transfer of Debt Securities
as herein provided shall be appointed as authorized by Board
Resolution (the "Security Registrar").
Upon surrender for transfer of any Debt Security
at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of
New York, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Debt Security or
Debt Securities of the same series and same aggregate
principal amount as the Debt Security presented for
transfer.
All Debt Securities presented or surrendered for
exchange or registration of transfer, as provided in this
Section, shall be accompanied (if so required by the Company
or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered
holder or by such holder's duly authorized attorney in
writing.
(c) No service charge shall be made for any
exchange or registration of transfer of Debt Securities, or
issue of new Debt Securities in case of partial redemption
of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section
2.06, Section 3.03(b) and Section 9.04 not involving any
transfer.
(d) The Company shall not be required (i) to
issue, exchange or register the transfer of any Debt
Securities of a series during a period beginning at the
opening of business 15 days before the day of the mailing of
a notice of redemption of less than all the Outstanding Debt
Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register
the transfer of or exchange any Debt Securities of any
series or portions thereof called for redemption. The
provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.
SECTION 2.06. Temporary Securities. Pending the
preparation of definitive Debt Securities of any series, the
Company may execute, and the Trustee shall authenticate and
deliver, temporary Debt Securities (printed, lithographed or
typewritten) of any authorized denomination. Such temporary
Debt Securities shall be substantially in the form of the
definitive Debt Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be
appropriate for temporary Debt Securities, all as may be
determined by the Company. Every temporary Debt Security of
any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Debt Securities of such series. Without
unnecessary delay the Company will execute and will furnish
definitive Debt Securities of such series and thereupon any
or all temporary Debt Securities of such series may be
surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and
State of New York, and the Trustee shall authenticate and
such office or agency shall deliver in exchange for such
temporary Debt Securities an equal aggregate principal
amount of definitive Debt Securities of such series, unless
the Company advises the Trustee to the effect that
definitive Debt Securities need not be executed and
furnished until further notice from the Company. Until so
exchanged, the temporary Debt Securities of such series
shall be entitled to the same benefits under this Indenture
as definitive Debt Securities of such series authenticated
and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or
Stolen Debt Securities. In case any temporary or definitive
Debt Security shall become mutilated or be destroyed, lost
or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and
deliver, a new Debt Security of the same series, bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Debt Security, or in lieu of
and in substitution for the Debt Security so destroyed, lost
or stolen. In every case the applicant for a substituted
Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to
save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish
to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the
applicant's Debt Security and of the ownership thereof. The
Trustee may authenticate any such substituted Debt Security
and deliver the same upon the written request or
authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, 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. In case any
Debt Security that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company
and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such
Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to
the provisions of this Section shall constitute an
additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt
Securities of the same series duly issued hereunder. All
Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities, and shall
preclude (to the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. Cancellation. All Debt Securities
surrendered for the purpose of payment, redemption, exchange
or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be
cancelled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly required or permitted by
any of the provisions of this Indenture. On request of the
Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Debt Securities held by the
Trustee. In the absence of such request the Trustee may
dispose of canceled Debt Securities in accordance with its
standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any
of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Debt Securities unless and until the
same are delivered to the Trustee for cancellation.
SECTION 2.09. Benefits of Indenture. Nothing in
this Indenture or in the Debt Securities, express or
implied, shall give or be construed to give to any Person,
other than the parties hereto and the holders of the Debt
Securities (and, with respect to the provisions of Article
XIV, the holders of any indebtedness to which the Debt
Securities are subordinated) any legal or equitable right,
remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the
sole benefit of the parties hereto and of the holders of the
Debt Securities (and, with respect to the provisions of
Article XIV, the holders of any indebtedness to which the
Debt Securities are subordinated).
SECTION 2.10. Authenticating Agent. So long as
any Debt Securities of any series remain Outstanding, there
may be an Authenticating Agent for any or all such series of
Debt Securities which the Trustee shall have the right to
appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Debt Securities
of such series issued upon exchange, transfer or partial
redemption thereof, and Debt Securities so authenticated
shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debt Securities by
the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the
laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and
that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by
federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign
immediately.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to
the Company. The Trustee may at any time (and upon request
by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible
successor Authenticating Agent acceptable to the Company.
Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities. (a) If the
Company shall establish pursuant to Section 2.01 that the
Debt Securities of a particular series are to be issued as a
Global Security or Securities, then the Company shall
execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i)
shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the Outstanding
Debt Securities of such series, (ii) shall be registered in
the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debt
Security may be transferred, in whole but not in part, only
to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section
2.05, the Global Security or Securities of a series may be
transferred, in whole but not in part and in the manner
provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for
such series selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If at any time the Depositary for a series of
Debt Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such series or if at
any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or
other applicable statute or regulation, at a time when the
Depositary is required to be so registered to act as such
Depositary and a successor Depositary 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, this Section 2.11 shall no longer be
applicable to the Debt Securities of such series and the
Company will execute, and subject to Section 2.05, the
Trustee will authenticate and deliver the Debt Securities of
such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security
or Securities of such series in exchange for such Global
Security or Securities. In addition, the Company may at any
time determine that the Debt Securities of any series shall
no longer be represented by a Global Security or Securities
and that the provisions of this Section 2.11 shall no longer
apply to the Debt Securities of such series. In such event,
the Company will execute and subject to Section 2.05, the
Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and
deliver the Debt Securities of such series in definitive
registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to
the principal amount of the Global Security or Securities of
such series in exchange for such Global Security or
Securities. Upon the exchange of the Global Security or
Securities for such Debt Securities in definitive registered
form without coupons, in authorized denominations, the
Global Security or Securities shall be canceled by the
Trustee. Such Debt Securities in definitive registered form
issued in exchange for the Global Security or Securities
pursuant to this Section 2.11(c) shall be registered in such
names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debt Securities to
the Depositary for delivery to the Persons in whose names
such Debt Securities are so registered.
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. Redemption. The Company may redeem
the Debt Securities of any series issued hereunder on and
after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
SECTION 3.02. Notice of Redemption. (a) In case
the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Debt Securities
of any series in accordance with the right reserved so to
do, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Debt Securities
of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than
30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last
addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Debt Securities
to be redeemed. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives
the notice. In any case, failure duly to give such notice
to the holder of any Debt Security of any series designated
for redemption in whole or in part, or any defect in such
notice, shall not affect the validity of the proceedings for
the redemption of any other Debt Securities of such series
or any other series. In the case of any redemption of Debt
Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Debt
Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the
date fixed for redemption and the redemption price at which
Debt Securities of that series are to be redeemed, and shall
state that payment of the redemption price of such Debt
Securities to be redeemed will be made at the office or
agency of the Company in the Borough of Manhattan, the City
and State of New York, upon presentation and surrender of
such Debt Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said
notice, that from and after said date interest will cease to
accrue and that the redemption is for a sinking fund, if
such is the case. If less than all the Debt Securities of a
series are to be redeemed, the notice to the holders of Debt
Securities of that series to be redeemed in whole or in part
shall specify the particular Debt Securities to be so
redeemed. In case any Debt Security is to be redeemed in
part only, the notice that relates to such Debt Security
shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the
redemption date, upon surrender of such Debt Security, a new
Debt Security or Debt Securities of such series in principal
amount equal to the unredeemed portion thereof will be
issued.
(b) If less than all the Debt Securities of a
series are to be redeemed, the Company shall give the
Trustee at least 45 days' notice in advance of the date
fixed for redemption as to the aggregate principal amount of
Debt Securities of the series to be redeemed, and thereupon
the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and
that may provide for the selection of a portion or portions
(equal to twenty-five U.S. dollars ($25) or any integral
multiple thereof) of the principal amount of such Debt
Securities of a denomination larger than $25, the Debt
Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debt
Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so
elect, by delivery of instructions signed on its behalf by
its President or any Vice President, instruct the Trustee or
any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give
notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its
own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to
be given by the Trustee or any such paying agent, the
Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other
records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. Payment Upon Redemption.
(a) If the giving of notice of redemption shall
have been completed as above provided, the Debt Securities
or portions of Debt Securities of the series to be redeemed
specified in such notice shall become due and payable on the
date and at the place stated in such notice at the
applicable redemption price, together with interest accrued
to the date fixed for redemption and interest on such Debt
Securities or portions of Debt Securities shall cease to
accrue on and after the date fixed for redemption, unless
the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Debt
Security or portion thereof. On presentation and surrender
of such Debt Securities on or after the date fixed for
redemption at the place of payment specified in the notice,
said Debt Securities shall be paid and redeemed at the
applicable redemption price for such series, together with
interest accrued thereon to the date fixed for redemption
(but if the date fixed for redemption is an interest payment
date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on
the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Debt Security of
such series that is to be redeemed in part only, the Company
shall execute and the Trustee shall authenticate and the
office or agency where the Debt Security is presented shall
deliver to the holder thereof, at the expense of the
Company, a new Debt Security or Debt Securities of the same
series, of authorized denominations in principal amount
equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.04. Sinking Fund. The provisions of
Sections 3.04, 3.05 and 3.06 shall be applicable to any
sinking fund for the retirement of Debt Securities of a
series, except as otherwise specified as contemplated by
Section 2.01 for Debt Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities 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 Debt Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Debt Securities of any series,
the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Debt
Securities of any series as provided for by the terms of
Debt Securities of such series.
SECTION 3.05. Satisfaction of Sinking Fund
Payments with Debt Securities. The Company (i) may deliver
Outstanding Debt Securities of a series (other than any Debt
Securities previously called for redemption) and (ii) may
apply as a credit Debt Securities of a series that have been
redeemed either at the election of the Company pursuant to
the terms of such Debt Securities or through the application
of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect
to the Debt Securities of such series required to be made
pursuant to the terms of such Debt Securities as provided
for by the terms of such series, provided that such Debt
Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose
by the Trustee at the redemption price specified in such
Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for
Sinking Fund. Not less than 45 days prior to each sinking
fund payment date for any series of Debt Securities, the
Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of such
series, the portion thereof, if any, that is to be satisfied
by delivering and crediting Debt Securities of that series
pursuant to Section 3.05 and the basis for such credit and
will, together with such Officers' Certificate, deliver to
the Trustee any Debt Securities to be so delivered. Not
less than 30 days before each such sinking fund payment
date, the Trustee shall select the Debt Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 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 3.02. Such notice
having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and
Interest. The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and
interest on the Debt Securities of each series at the time
and place and in the manner provided herein and established
with respect to such Debt Securities.
SECTION 4.02. Maintenance of Office or Agency.
So long as any series of the Debt Securities remain
Outstanding, the Company agrees to maintain an office or
agency in the Borough of Manhattan, the City and State of
New York, with respect to each such series and at such other
location or locations as may be designated as provided in
this Section 4.02, where (i) Debt Securities of such series
may be presented for payment, (ii) Debt Securities of such
series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Debt
Securities of such series and this Indenture may be given or
served, such designation to continue with respect to such
office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to
the trustee, designate some other office or agency for such
purposes or any of them. 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, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
SECTION 4.03. Paying Agents.
(a) If the Company shall appoint one or more
paying agents for all or any series of the Debt Securities,
other than the Trustee, the Company will cause each such
paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of (and premium,
if any) or interest on the Debt Securities of that
series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt
Securities) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee notice of any
failure by the Company to make any payment of the
principal of (and premium, if any) or interest on the
Debt Securities of that series when the same shall be
due and payable;
(3) that it will, at any time during the
continuance of any failure referred to in the preceding
paragraph (a)(2) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent; and
(4) that it will perform all other duties of
paying agent as set forth in this Indenture.
(b) If the Company shall act as its own paying
agent with respect to any series of the Debt Securities, it
will on or before each due date of the principal of (and
premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to
pay such principal (and premium, if any) or interest so
becoming due on Debt Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of
as herein provided and will promptly notify the Trustee of
such action, or any failure by it to take such action.
Whenever the Company shall have one or more paying agents
for any series of Debt Securities, it will, on or before
each due date of the principal of (and premium, if any) or
interest on any Debt Securities of that series, deposit with
the 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 such deposit or failure so to deposit.
(c) Notwithstanding anything in this Section to
the contrary, (i) the agreement to hold sums in trust as
provided in this Section is subject to the provisions of
Section 11.05, and (ii) 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 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 terms and conditions 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.
SECTION 4.04. Appointment to Fill Vacancy in
Office of Trustee. The Company, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 7.10, a Trustee, so that
there shall at all times be a Trustee hereunder.
SECTION 4.05. Compliance with Consolidation
Provisions. The Company will not, while any of the Debt
Securities remain Outstanding, consolidate with, or merge
into, or merge into itself, or sell or convey all or
substantially all of its property to any other company
unless the provisions of Article X hereof are complied with.
SECTION 4.06. Limitation on Dividends;
Transactions with Affiliates.
(a) If Debt Securities are issued to a Trust or a
trustee of such Trust in connection with the issuance of
Preferred Securities by such Trust and (i) there shall have
occurred any event that would constitute an Event of Default
or (ii) the Company shall be in default with respect to its
payment or any obligations under the Preferred Securities
Guarantee relating to such Preferred Securities, then (x)
the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or
make a liquidation payment with respect to, any of its
capital stock (other than (A) purchases or acquisitions of
shares of Company common stock in connection with the
satisfaction by the Company of its obligations under any
employee benefit plans or any other contractual obligations
of the Company, other than a contractual obligation ranking
pari passu with or junior to the Debt Securities), (B) as a
result of a reclassification of Company capital stock or the
exchange or conversion of one class or series of Company
capital stock for another class or series of Company capital
stock, or (C) the purchase of fractional interests in shares
of Company capital stock pursuant to the conversion or
exchange provisions of such Company capital stock or the
security being converted or exchanged), (y) the Company
shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees) issued by the Company
which rank pari passu with or junior to such Debt Securities
and (z) the Company shall not make guarantee payments with
respect to the foregoing (other than pursuant to Preferred
Securities Guarantees).
(b) If Debt Securities are issued to a Trust or a
trustee of such Trust in connection with the issuance of
Trust Securities by such Trust and the Company shall have
given notice of its election to defer payments of interest
on such Debt Securities by extending the interest payment
period as provided in any indenture supplemental hereto and
such period, or any extension thereof, shall be continuing,
then (i) the Company shall not declare or pay any dividend,
or make any distributions with respect to, or redeem,
purchase or make a liquidation payment with respect to, any
of its capital stock (other than (A) purchases or
acquisitions of shares of Company common stock in connection
with the satisfaction by the Company of its obligations
under any employee benefit plans or any other contractual
obligations of the Company, other than a contractual
obligation ranking pari passu with or junior to the Debt
Securities) (B) as a result of a reclassification of Company
capital stock or the exchange or conversion of one class or
series of Company capital stock for another class or series
of Company capital stock, or (C) the purchase of fractional
interests in shares of Company capital stock pursuant to the
conversion or exchange provisions of such Company capital
stock or the security being converted or exchanged), (ii)
the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by
the Company which rank pari passu with or junior to such
Debt Securities and (iii) the Company shall not make any
guarantee payments with respect to the foregoing (other than
pursuant to Preferred Securities Guarantees).
SECTION 4.07. Covenants as to Trust. In the
event Debt Securities are issued and sold to a Trust in
connection with the issuance of Trust Securities by such
Trust, for so long as such Trust Securities remain
outstanding, the Company will (i) maintain 100% direct or
indirect ownership of the Common Securities of such Trust;
provided, however, that any permitted successor of the
Company under the Indenture may succeed to the Company's
ownership of such Common Securities, (ii) not cause, as
sponsor of such Trust, or permit, as holder of Common
Securities of such Trust, the dissolution, winding-up or
termination of such trust, except in connection with a
distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers,
consolidations or amalgamations permitted by the Declaration
and (iii) use its reasonable efforts to cause such Trust (a)
to remain a business trust, except in connection with a
distribution of Debt Securities, the redemption of all of
the Trust Securities of such Trust or certain mergers,
consolidations or amalgamations, each as permitted by the
Declaration of such Trust, and (b) to otherwise continue to
be classified for United States federal income tax purposes
as a grantor trust.
SECTION 4.08. Corporate Existence. The Company
will, subject to the provisions of Article X, at all times
maintain its corporate existence and right to carry on
business and will duly procure all renewals and extensions
thereof, and, to the extent necessary or desirable in the
operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers,
privileges and material franchises.
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Names
and Addresses of Securityholders. The Company will furnish
or cause to be furnished to the Trustee (a) on a quarterly
basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably
require, of the names and addresses of the holders of each
series of Debt Securities as of such regular record date,
provided that the Company shall not be obligated to furnish
or cause to be furnished such list at any time that such
list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company 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 in either case, no such list need be furnished
for any series of Debt Securities for which the Trustee
shall be the Security Registrar.
SECTION 5.02. Preservation Of Information;
Communications With Securityholders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as to the
names and addresses of the holders of Debt Securities
contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses
of holders of Debt Securities received by the Trustee in its
capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to
it as provided in Section 5.01 upon receipt of a new list so
furnished.
(c) Securityholders may communicate as provided
in Section 312(b) of the Trust Indenture Act with other
Securityholders with respect to their rights under this
Indenture or under the Debt Securities.
SECTION 5.03. Reports By the Company.
(a) The Company covenants and agrees to 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) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission,
in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary
and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, 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.
(b) The Company covenants and agrees to file with
the Trustee and the Commission, in accordance with the rules
and regulations prescribed from to time by the Commission,
such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit
by mail, first class postage prepaid, or reputable overnight
delivery service that provides for evidence of receipt, to
the Securityholders, as their names and addresses appear
upon the Security 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 subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to
time by the Commission.
SECTION 5.04. Reports by the Trustee.
(a) Within 60 days after May 15 of each year in
which any of the Debt Securities are Outstanding, the
Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the
preceding May 15, if and to the extent required under
Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b)
and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time
of such transmission to Securityholders, be filed by the
Trustee with the Company, with each stock exchange upon
which any Debt Securities are listed (if so listed) and also
with the Commission. The Company agrees to notify the
Trustee when any Debt Securities become listed on any stock
exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
(a) Whenever used herein with respect to Debt
Securities of a particular series, "Event of Default" means
any one or more of the following events that has occurred
and is continuing:
(1) the Company defaults in the payment of any
installment of interest upon any of the Debt Securities
of that series, as and when the same shall become due
and payable, and continuance of such default for a
period of 30 days; provided, however, that a valid
extension of an interest payment period by the Company
in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the Company defaults in the payment of the
principal of (or premium, if any, on) any of the Debt
Securities of that series as and when the same shall
become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any
payment required by any sinking or analogous fund
established with respect to that series;
(3) the Company fails to observe or perform any
other of its covenants or agreements with respect to
that series contained in this Indenture or otherwise
established with respect to that series of Debt
Securities pursuant to Section 2.01 hereof (other than
a covenant or agreement that has been expressly
included in this Indenture solely for the benefit of
one or more series of Debt Securities other than such
series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to
be remedied and stating that such notice is a "Notice
of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified
mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Debt
Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning
of any Bankruptcy Law (i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to
the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a
general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an
order under any Bankruptcy Law that (i) is for relief
against the Company in an involuntary case, (ii)
appoints a Custodian of the Company for all or
substantially all of its property, or (iii) orders the
liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days; or
(6) in the event Debt Securities are issued and
sold to a Trust of the Company in connection with the
issuance of Trust Securities by such Trust, such Trust
shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its
existence except in connection with (i) the
distribution of Debt Securities to holders of Trust
Securities in liquidation of their interests in such
Trust, (ii) the redemption of all outstanding Trust
Securities of such Trust, and (iii) mergers,
consolidations or amalgamations, each as permitted by
the Declaration of such Trust.
(b) If an Event of Default described in clauses
1, 2, 3 or 6 of Section 6.01(a) with respect to Debt
Securities of any series at the time outstanding occurs and
is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and
payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Debt Securities of
that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee, if given by such
Securityholders), may declare the principal of all the Debt
Securities of that series to be due and payable immediately,
and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Debt
Securities of that series or established with respect to
that series pursuant to Section 2.01 to the contrary. If an
Event of Default specified in clause (4) or (5) of Section
6.01(a) occurs or is continuing, then the principal amount
of all the Debt Securities shall ipso facto become and be
immediately due and payable without any declaration or other
act on the part of the Trustee or any Securityholder.
(c) At any time after the principal of the Debt
Securities of that series shall have been so declared due
and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority
in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by written notice to the
Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Debt
Securities of that series and the principal of (and premium,
if any, on) any and all Debt Securities of that series that
shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to
the extent that such payment is enforceable under applicable
law, upon overdue installments of interest, at the rate per
annum expressed in the Debt Securities of that series to the
date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events
of Default under the Indenture with respect to such series,
other than the nonpayment of principal on Debt Securities of
that series that shall not have become due by their terms,
shall have been remedied or waived as provided in
Section 6.06.
No such rescission and annulment shall extend to
or shall affect any subsequent default or impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to
enforce any right with respect to Debt Securities of that
series under this Indenture and such proceedings shall have
been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company and the
Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02. Collection of Indebtedness and
Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it
shall default in the payment of any installment of interest
on any of the Debt Securities of a series, or any payment
required by any sinking or analogous fund established with
respect to that series as and when the same shall have
become due and payable, and such default shall have
continued for a period of 90 days, or (2) in case it shall
default in the payment of the principal of (or premium, if
any, on) any of the Debt Securities of a series when the
same shall have become due and payable, whether upon
maturity of the Debt Securities of a series or upon
redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Debt Securities of
that series, the whole amount that then shall have become
due and payable on all such Debt Securities for principal
(and premium, if any) or interest, or both, as the case may
be, with interest upon the overdue principal (and premium,
if any) and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities
are held by a Trust, without duplication of any other
amounts paid by such Trust in respect thereof) upon overdue
installments of interest at the rate per annum expressed in
the Debt Securities of that series; and, in addition
thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection and the amount payable
to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts
forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and
empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceeding to judgment
or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Debt
Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of
the property of the Company or other obligor upon the
Securities of that series, wherever situated.
(c) In case of any receivership, insolvency,
liquidation, bankruptcy, reorganization, readjustment,
arrangement, composition or judicial proceedings affecting
the Company or its creditors or property, the Trustee shall
have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall
(except as may be otherwise provided by law) be entitled to
file such proofs of claim and other papers and documents as
may be necessary or advisable in order to have the claims of
the Trustee and of the holders of Debt Securities of such
series allowed for the entire amount due and payable by the
Company under this Indenture at the date of institution of
such proceedings and for any additional amount that may
become due and payable by the Company after such date, and
to collect and receive any moneys or other property payable
or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of
the holders of Debt Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee
shall consent to the making of such payments directly to
such Securityholders, to pay to the Trustee any amount due
it under Section 7.06.
(d) All rights of action and of asserting claims
under this Indenture, or under any of the terms established
with respect to Debt Securities of that series, may be
enforced by the Trustee without the possession of any of
such Debt Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or
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 payment to the Trustee
of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Debt Securities of such
series.
In case of an Event of Default hereunder, the
Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to
authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03. Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article
with respect to a particular series of Debt Securities shall
be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of
such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debt Securities of that
series, and notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection and of all amounts payable to the Trustee
under Section 7.06;
SECOND: To the payment of all indebtedness to
which the Debt Securities are subordinated if and to
the extent required by Article XIV; and
THIRD: To the payment of the amounts then due and
unpaid upon Debt Securities of such series for
principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money
has been collected, ratably, without preference or
priority of any kind, according to the amounts due and
payable on such Debt Securities for principal (and
premium, if any) and interest, respectively.
SECTION 6.04. Limitation on Suits. No holder of
any Debt Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the
Debt Securities of such series specifying such Event of
Default, as herein provided; (ii) the holders of not less
than 25% in aggregate principal amount of the Debt
Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action,
suit or proceeding in its own name as trustee hereunder;
(iii) such holder or holders shall have offered to the
Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein
or thereby; and (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity,
shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders
of a majority in principal amount of the Debt Securities of
that series do not give the Trustee a direction inconsistent
with the request.
Notwithstanding anything contained herein to the
contrary, any other provisions of this Indenture, the right
of any holder of any Debt Security to receive payment of the
principal of (and premium, if any) and interest on such Debt
Security, as therein provided, on or after the respective
due dates expressed in such Debt Security (or in the case of
redemption, on the redemption date), or to institute suit
for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired
or affected without the consent of such holder, and by
accepting a Debt Security hereunder it is expressly
understood, intended and covenanted by the taker and holder
of every Debt Security of such series with every other such
taker and holder and the Trustee, that no one or more
holders of Debt Securities of such series shall have any
right in any manner whatsoever by virtue or by availing of
any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such
Debt Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of
all holders of Debt Securities of such series. For the
protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or
in equity.
SECTION 6.05. Rights and Remedies Cumulative;
Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07,
all powers and remedies given by this Article to the Trustee
or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders
of the Debt Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or
otherwise established with respect to such Debt Securities.
(b) No delay or omission of the Trustee or of any
holder of any of the Debt Securities to exercise any right
or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by
this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. Control by Securityholders. The
holders of a majority in aggregate principal amount of the
Debt Securities of any series at the time Outstanding, deter
mined in accordance with Section 8.04, 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 such series; provided, however, that such
direction shall not be in conflict with any rule of law or
with this Indenture or be unduly prejudicial to the rights
of holders of Debt Securities of any other series at the
time Outstanding determined in accordance with Section 8.04.
Subject to the provisions of Section 7.01, the Trustee shall
have the right to decline to follow any such direction if
the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of
the Debt Securities of any series at the time Outstanding
affected thereby, determined in accordance with Section
8.04, may on behalf of the holders of all of the Debt
Securities of such series waive any past default in the
performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such
series and its consequences, except (i) a default in the
payment of the principal of, or premium, if any, or interest
on, any of the Debt Securities of that series as and when
the same shall become due by the terms of such Debt
Securities otherwise than by acceleration (unless such
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 (in accordance
with Section 6.01(c)) or (ii) a default in the covenants
contained in Section 4.06(b). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and
the holders of the Debt Securities of such series shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. Undertaking to Pay Costs. All
parties to this Indenture agree, and each holder of any Debt
Securities by such holder's 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 Securityholder, or group of
Securityholders, holding more than 10% in aggregate
principal amount of the Outstanding Debt Securities of any
series, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security of such
series, on or after the respective due dates expressed in
such Debt Security or established pursuant to this
Indenture.
SECTION 6.08. Acknowledgement Regarding Preferred
Securities Holders. The Company acknowledges that, with
respect to any Debt Securities held by a Trust or a trustee
of such Trust, if the Property Trustee of such Trust fails
to enforce its rights under this Indenture as the holder of
the series of Debt Securities held as the assets of such
Trust, then holders of Preferred Securities of such Trust
may institute legal proceedings directly against the Company
to enforce such rights under this Indenture without first
instituting any legal proceedings against such Property
Trustee or any other Person.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities
of Trustee.
(a) The Trustee, prior to the occurrence of an
Event of Default with respect to the Debt Securities of a
series and after the curing of all Events of Default with
respect to the Debt Securities of that series that may have
occurred, shall undertake to perform with respect to the
Debt Securities of such series such duties and only such
duties as are specifically set forth in this Indenture, and
no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with
respect to the Debt Securities of a series has occurred
(that has not been cured or waived), the Trustee shall
exercise with respect to Debt Securities of that series 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.
(b) 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) prior to the occurrence of an Event of Default
with respect to the Debt Securities of a series and after
the curing or waiving of all such Events of Default with
respect to that series that may have occurred:
(i) the duties and obligations of the Trustee
shall with respect to the Debt Securities of such
series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable
with respect to the Debt Securities of such series
except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to the Debt
Securities of such series conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, upon any 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 that 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 requirement of this Indenture;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee 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 not
less than a majority in principal amount of the Debt
Securities of any series at the time Outstanding 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 Debt Securities of that series; and
(4) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of
any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except
as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order,
approval, bond, security or other paper or document believed
by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(b) Any request, direction, order or demand of
the Company mentioned herein shall be sufficiently evidenced
by a Board Resolution or an instrument signed in the name of
the Company by the President, or any Vice President and by
the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein).
(c) The Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel.
(d) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, provided that nothing contained
herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default with
respect to a series of the Debt Securities (that has not
been cured or waived) to exercise with respect to Debt
Securities of that series such of the rights and powers
vested in it by this Indenture, and to use the same degree
of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct
of his or her own affairs.
(e) The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
(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,
approval, bond, security, or other papers or documents,
unless requested in writing so to do by the holders of not
less than a majority in principal amount of the Outstanding
Debt Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however,
that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding.
The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand.
(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) Whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate.
SECTION 7.03. Trustee Not Responsible for
Recitals or Issuance of Debt Securities.
(a) The recitals contained herein and in the Debt
Securities shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the
correctness of the same.
(b) The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Debt
Securities.
(c) The Trustee shall not be accountable for the
use or application by the Company of any of the Debt Securities
or of the proceeds of such Debt Securities, or for the use
or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other
than the Trustee.
SECTION 7.04. May Hold Debt Securities. The
Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or
pledgee of Debt Securities with the same rights it would
have if it were not Trustee, paying agent or Security
Registrar.
SECTION 7.05. Moneys Held in Trust. Subject to
the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received,
but 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 moneys received by it
hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to
the Trustee, and the Trustee shall be entitled to, such
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust), as the Company and the Trustee may
from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created
and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part
of the Trustee and arising out of or in connection with the
acceptance or administration of this Indenture, including
the costs and expenses of defending itself against any claim
of liability in the premises.
(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
and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be secured by
a lien prior to that of the Debt Securities 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 Debt Securities.
SECTION 7.07. Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in
the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless
other evidence in respect thereof is herein specifically
prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered
to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered
or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. Qualification; Conflicting
Interests. If the Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Trustee and the Company
shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee with
respect to the Debt Securities issued hereunder which shall
at all times be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by
the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and
surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid 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. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal;
Appointment of Successor.
(a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Debt
Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the
Securityholders of such series, as their names and addresses
appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a
successor Trustee with respect to the Debt Securities of
such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and
one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment
within 30 days after the mailing 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 Debt Securities of such series,
or any Securityholder of that series who has been a bona
fide holder of a Debt Security or Debt Securities for at
least six months may, subject to the provisions of Section
6.08, on behalf of that holder and all others similarly
situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint
a successor Trustee.
(b) In case at any time any one of the following
shall occur:
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 7.10 after
written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six
months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and
shall fail to resign after written request therefor by
the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee or of its property shall be
appointed or consented to, 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,
the Company may remove the Trustee with respect to all
Debt Securities and appoint a successor Trustee by
written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one
copy to the successor Trustee, or, subject to the
provisions of Section 6.08, unless the Trustee's duty
to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six
months may, on behalf of that holder and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may
thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a
successor Trustee.
(c) The holders of a majority in aggregate
principal amount of the Debt Securities of any series at the
time Outstanding may at any time remove the Trustee with
respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series
with the consent of the Company.
(d) Any resignation or removal of the Trustee and
appointment of a successor Trustee with respect to the Debt
Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of
appointment by the successor Trustee as provided in Section
7.11.
(e) Any successor Trustee appointed pursuant to
this Section may be appointed with respect to the Debt Securities
of one or more series or all of such series, and at any time
there shall be only one Trustee with respect to the Debt
Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By
Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Debt Securities, 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 Debt Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt
Securities 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 Debt Securities of that
or those series to which the appointment of such successor
Trustee relates, (2) 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 Debt Securities 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, 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 Trustee and that no Trustee shall be responsible for
any act or failure to act on the part of any other Trustee
hereunder; 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, such retiring Trustee shall with respect
to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates have no
further responsibility for the exercise of rights and powers
or for the performance of the duties and obligations vested
in the Trustee under this Indenture, 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 Debt Securities
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, to
the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder
with respect to the Debt Securities 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.
(e) Upon acceptance of appointment by a successor
Trustee as provided in this Section, the Company shall
transmit notice of the succession of such Trustee hereunder
by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon
the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment
by the successor Trustee, the successor Trustee shall cause
such notice to be transmitted at the expense of the Company.
SECTION 7.12. 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 the corporate trust
business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any
of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debt Securities 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 Debt Securities so
authenticated with the same effect as if such successor
Trustee had itself authenticated such Debt Securities.
SECTION 7.13. Preferential Collection of Claims
Against the Company. The Trustee shall comply with Section
311(a) of the Trust Indenture Act, excluding any creditor
relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture
Act to the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by
Securityholders. Whenever in this Indenture it is provided
that the holders of a majority or specified percentage in
aggregate principal amount of the Debt Securities of a
particular series may take any action (including the making
of any demand or request, the giving of any notice, consent
or waiver or the taking of any other action), the fact that
at the time of taking any such action the holders of such
majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of
Debt Securities of that series in person or by agent or
proxy appointed in writing.
If the Company shall solicit from the holders of
any series of Debt Securities 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
Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding
Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that
purpose the Outstanding Debt Securities of that series shall
be computed as of the record date; provided, however, that
no such authorization, agreement or consent by such
Securityholders 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 8.02. Proof of Execution by
Securityholders. Subject to the provisions of Section 7.01,
proof of the execution of any instrument by a Securityholder
(such proof will not require notarization) or the agent or
proxy of such Securityholder and proof of the holding by any
Person of any of the Debt Securities shall be sufficient if
made in the following manner:
(a) The fact and date of the execution by any
such Person of any instrument may be proved in any
reasonable manner acceptable to the Trustee.
(b) The ownership of Debt Securities shall be
proved by the Security Register of such Debt Securities
or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof
of any matter referred to in this Section as it shall
deem necessary.
SECTION 8.03. Who May be Deemed Owners. Prior to
the due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent and any
Security Registrar may deem and treat the Person in whose
name such Debt Security shall be registered upon the books
of the Company as the absolute owner of such Debt Security
(whether or not such Debt Security shall be overdue and
notwithstanding any notice of ownership or writing thereon
made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03)
interest on such Debt Security and for all other purposes;
and neither the Company nor the Trustee nor any paying agent
nor any Security Registrar shall be affected by any notice
to the contrary.
SECTION 8.04. Certain Debt Securities Owned by
Company Disregarded. In determining whether the holders of
the requisite aggregate principal amount of Debt Securities
of a particular series have concurred in any direction,
consent or waiver under this Indenture, the Debt Securities
of that series that are owned by the Company or any other
obligor on the Debt Securities of that series or by any
Person directly or indirectly controlling or controlled by
or under common control with the Company or any other
obligor on the Debt Securities of that series shall be
disregarded and deemed not to be outstanding for the purpose
of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt
Securities of such series that the Trustee actually knows
are so owned shall be so disregarded. The Debt Securities
so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right so to act with respect to such
Debt Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any
such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.05. Actions Binding on Future
Securityholders. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of
the taking of any action by the holders of a majority or
specified percentage in aggregate principal amount of the
Debt Securities of a particular series in connection with
such action, any holder of a Debt Security of that series
that is shown by the evidence to be included in the Debt
Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debt Security. Except
as aforesaid, any such action taken by the holder of any
Debt Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Debt
Security, and of any Debt Security issued in exchange
therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in
regard thereto is made upon such Debt Security. Any action
taken by the holders of a majority or specified percentage
in aggregate principal amount of the Debt Securities of a
particular series in connection with such action shall be
conclusively binding upon the Company, the Trustee and the
holders of all the Debt Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without the
Consent of Securityholders. In addition to any supplemental
indenture otherwise authorized by this Indenture, the
Company and the Guarantor and the Trustee may from time to
time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect or
inconsistency herein or in the Debt Securities of any
series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities
in addition to or in place of certificated Debt
Securities;
(d) to add to the covenants of the Company for
the benefit of the holders of all or any series of Debt
Securities (and if such covenants are to be for the
benefit of less than all series of Debt Securities,
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;
(e) to add to, delete from, or revise the
conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as
herein set forth;
(f) to make any change that does not adversely
affect the rights of any Securityholder in any material
respect; or
(g) to provide for the issuance of and establish
the form and terms and conditions of the Debt
Securities of any series as provided in Section 2.01,
to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or
any series of Debt Securities, or to add to the rights
of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the
Company in the execution of any such supplemental indenture,
and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section may be executed by the Company
and the Trustee without the consent of the holders of any of
the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures With
Consent of Securityholders. With the consent (evidenced as
provided in Section 8.01) of the holders of not less than a
majority in aggregate principal amount of the Debt
Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the
Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then
in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 9.01 the
rights of the holders of the Debt Securities of such series
under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the
holders of each Debt Security then Outstanding and affected
thereby, (i) extend the fixed maturity of any Debt
Securities 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 Debt Security so affected or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are
required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be
deemed to be modified and amended in accordance therewith
and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of
the Trustee, the Company and the holders of Debt Securities
of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04. Debt Securities Affected by
Supplemental Indentures. Debt Securities of any series
affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section
10.01, may bear a notation in form approved by the Company,
provided such form meets the requirements of any exchange
upon which such series may be listed, as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Debt Securities of that series so
modified as to conform, in the opinion of the Board of
Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of that series
then outstanding.
SECTION 9.05. Execution of Supplemental
Indentures. Upon the request of the Company, accompanied by
a Board Resolution authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Securityholders required to
consent thereto as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion
but shall not be obligated to enter into such supplemental
indenture. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and
conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join
in the execution thereof.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Trustee shall transmit by
mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected
thereby as their names and addresses appear upon the Debt
Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental
indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01. Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Debt
Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor
or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not
affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided,
however, the Company hereby covenants and agrees that, upon
any such consolidation, merger, sale, conveyance, transfer
or other disposition, the due and punctual payment of the
principal of (premium, if any) and interest on all of the
Debt Securities of all series in accordance with the terms
of each series, according to their tenor and the due and
punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section
2.01 to be kept or performed by the Company, shall be
expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as
then in effect) satisfactory in form to the Trustee executed
and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such
property.
SECTION 10.02. Successor Corporation Substituted.
(a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the
assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest
on all of the Debt Securities of all series Outstanding and
the due and punctual performance of all of the covenants and
conditions of this Indenture or established with respect to
each series of the Debt Securities pursuant to Section 2.01
to be performed by the Company with respect to each series,
such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it
had been named as the Company herein.
(b) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition, such
changes in phraseology and form (but not in substance) may
be made in the Debt Securities thereafter to be issued as
may be appropriate.
(c) Nothing contained in this Indenture or in any
of the Debt Securities shall prevent the Company from
merging into itself or acquiring by purchase or otherwise
all or any part of the property of any other Person (whether
or not affiliated with the Company).
SECTION 10.03. Evidence of Consolidation, Etc. to
Trustee. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of
Indenture. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Debt
Securities of a series theretofore authenticated (other than
any Debt Securities that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided
in Section 2.07) and Debt Securities for whose payment money
or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company(and
thereupon repaid to the Company or discharged from such
trust, as provided in Section 11.05); or (b) all such Debt
Securities of a particular series not theretofore delivered
to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable
within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental
Obligations or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon
redemption all Debt Securities of that series not
theretofore delivered to the Trustee for cancellation,
including principal (and premium, if any) and interest due
or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company; then
if the Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling or (y) since the date hereof, there has
been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion
shall confirm that, the holders of the Debt Securities of
such series will not recognize income, gain or loss for
United States federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject
to United States federal income tax on the same amount and
in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not
occurred, this Indenture shall thereupon cease to be of
further effect with respect to such series except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, which shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and
11.05, which shall survive to such date and thereafter, and
the Trustee, on demand of the Company and at the cost and
expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture
with respect to such series.
SECTION 11.02. Discharge of Obligations. If at
any time all Debt Securities of a particular series not
theretofore delivered to the Trustee for cancellation or
that have not become due and payable as described in Section
11.01 shall have been paid by the Company by depositing
irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Debt Securities of that
series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the
Trustee then, if the Company has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Company
has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United
States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the holders of
the Debt Securities of such series will not recognize
income, gain or loss for United States federal income tax
purposes as a result of such deposit, defeasance and
discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred, the obligations
of the Company, under this Indenture with respect to such
series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03,
7.06, 7.10 and 11.05 hereof which shall survive until such
Debt Securities shall mature and be paid and Sections 7.06
and 11.05, which shall survive to such date and thereafter.
SECTION 11.03. Deposited Moneys to be Held in
Trust. All moneys or Governmental Obligations deposited
with the Trustee pursuant to Section 11.02 shall be held in
trust and shall be available for payment as due, either
directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the
particular series of Debt Securities for the payment or
redemption of which such moneys or Governmental Obligations
have been deposited with the Trustee.
SECTION 11.04. Payment of Moneys Held by Paying
Agents. In connection with the satisfaction and discharge
of this Indenture, all moneys or Governmental Obligations
then held by any paying agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released
from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05. Repayment to Company. Any moneys
or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Debt
Securities of a particular series that are not applied but
remain unclaimed by the holders of such Debt Securities for
at least two years after the date upon which the principal
of (and premium, if any) or interest on such Debt Securities
shall have respectively become due and payable, shall be
repaid to the Company on May 31 of each year or (if then
held by the Company) shall be discharged from such trust;
and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such
moneys or Governmental Obligations, and the holder of any of
the Debt Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01. No Recourse. No recourse under or
upon any obligation, covenant or agreement of this
Indenture, or of any Debt Security, or for any claim based
thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that
this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debt Securities
or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or
in equity or by constitution or statute, of, and any and all
such rights and claims against, every such incorporator,
stockholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Debt Securities
or implied therefrom, are hereby expressly waived and
released as a condition of, and as consideration for, the
execution of this Indenture and the issuance of such Debt
Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed
or not.
SECTION 13.02. Actions by Successor. Any act or
proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed
with like force and effect by the corresponding board,
committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
SECTION 13.03. Surrender of Company Powers. The
Company by instrument in writing executed by authority of
2/3 (two-thirds) of its Board of Directors and delivered to
the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall
terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Notices. Except as otherwise
expressly provided herein, any notice or demand that by any
provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Debt
Securities to or on the Company may be given or served by
being deposited first class postage prepaid in a post-office
letterbox addressed (until another address is filed in
writing by the Company with the Trustee), as follows:
Kansas City Power & Light Company, 1201 Walnut, Kansas City,
MO 64106-2124, Attention: Treasurer. Any notice,
election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of
the Trustee.
SECTION 13.05. Governing Law. This Indenture and
each Debt Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws
of said State.
SECTION 13.06. Treatment of the Debt Securities
as Debt. It is intended that the Debt Securities will be
treated as indebtedness and not as equity for federal income
tax purposes. The provisions of this Indenture shall be
interpreted to further this intention.
SECTION 13.07. Compliance Certificates and
Opinions.
(a) Upon any application or demand by the Company
to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all
conditions precedent 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 have been complied
with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture
relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in
this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant in this Indenture
shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, such
Person has made such examination or investigation as is
necessary to enable such Person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or
not, in the opinion of such Person, such condition or
covenant has been complied with.
SECTION 13.08. Payments on Business Days. Except
as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or
established in one or more indentures supplemental to this
Indenture, in any case where the date of maturity of
interest or principal of any Debt Security or the date of
redemption of any Debt Security shall not be a Business Day,
then payment of interest or principal (and premium, if any)
may be made on the next succeeding Business Day with the
same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.09. 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 13.10. Counterparts. This 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 13.11. Separability. In case any one or
more of the provisions contained in this Indenture or in the
Debt Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect
any other provision of this Indenture or of such Debt
Securities, but this Indenture and such Debt Securities
shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or
therein.
SECTION 13.12. Assignment. The Company will have
the right at all times to assign any of its respective
rights or obligations under this Indenture to a direct or
indirect wholly-owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company will
remain liable for all such obligations. Subject to the
foregoing, this Indenture is binding upon and inures to the
benefit of the parties hereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights. The
Company acknowledges that, with respect to any Debt
Securities held by a Trust or a trustee of such Trust, if
the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the series of
Debt Securities held as the assets of such Trust, any holder
of Preferred Securities may, after a period of 30 days has
elapsed from such holder's written request to such Property
Trustee to enforce such rights, institute legal proceedings
directly against the Company to enforce such Property
Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property
Trustee or any other person or entity.
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. Subordination Terms. The payment
by the Company of the principal of, premium, if any, and
interest on any series of Debt Securities issued hereunder
shall be subordinated to the extent set forth in an
indenture supplemental hereto relating to such Debt
Securities.
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.
KANSAS CITY POWER & LIGHT COMPANY
By: __________________________
Name:
Title:
Attest:
By: _________________________
Jeanie S. Latz
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
Not in its individual capacity
but solely as Trustee
By: __________________________
Name:
Title:
Attest:
By: _________________________
Name:
Title:
STATE OF MISSOURI)
COUNTY OF JACKSON) SS
On the ___ day of __________, 199_, before me personally
came _______________ to me known, who, being by me duly
sworn, did depose and say that he is a __________ of KANSAS
CITY POWER & LIGHT COMPANY, 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 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
[seal] Commission expires:
STATE OF ILLINOIS )
COUNTY OF COOK ) SS
On the ___ day of __________, 199_, before me personally
came __________________ to me known, who, being by me duly
sworn, did depose and say that he is a
_________________________ of THE FIRST NATIONAL BANK OF
CHICAGO, 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 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
[seal] Commission expires:
Exhibit 4-d
_______________________________________
___________ SUPPLEMENTAL INDENTURE
Dated as of ______________, 199_
Between
KANSAS CITY POWER & LIGHT COMPANY
and
THE FIRST NATIONAL BANK OF CHICAGO
_______________________________________
ARTICLE I DEFINITIONS
Section 1.1. Definition of Terms 2
Section 1.2. Interpretation 3
ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE SUBORDINATED DEBENTURES
Section 2.1. Designation and Principal Amount 4
Section 2.2. Maturity 4
Section 2.3. Form and Payment 4
Section 2.4. Global Subordinated Debenture 4
Section 2.5. Interest 5
ARTICLE III
REDEMPTION OF THE SUBORDINATED DEBENTURES
Section 3.1. Tax Event Redemption 7
Section 3.2. Optional Redemption by Company 7
Section 3.3. No Sinking Fund 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment
Period 8
Section 4.2. Notice of Extension 9
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses 10
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate 11
Section 6.2. Default on Senior Indebtedness 11
Section 6.3. Liquidation; Dissolution;
Bankruptcy 12
Section 6.4. Subrogation 13
Section 6.5. Trustee to Effectuate Subordination 15
Section 6.6. Notice by the Company 15
Section 6.7. Rights of the Trustee; Holders of
Senior Indebtedness 16
Section 6.8. Subordination May Not Be Impaired 16
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
Section 7.1. Listing on Exchange 17
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE
Section 8.1. Form of Subordinated Debenture 17
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
Section 9.1. Original Issue of Subordinated
Debentures 27
ARTICLE X
MISCELLANEOUS
Section 10.1. Ratification of Indenture 27
Section 10.2. Trustee Not Responsible for
Recitals 27
Section 10.3. Governing Law 27
Section 10.4. Separability 28
Section 10.5. Counterparts 28
THIS ________ SUPPLEMENTAL INDENTURE, dated as of
___________, 199_ (the "________ Supplemental Indenture"),
between Kansas City Power & Light Company, a Missouri
corporation (the Company"), and The First National Bank of
Chicago, a national banking association, duly organized and
existing under the laws of the United States as trustee (the
Trustee") under the Indenture dated as of ___________, 199_
between the Company and the Trustee (the Indenture").
W I T N E S S E T H:
WHEREAS, the Company executed and delivered the
Indenture to the Trustee to provide for the future issuance
of the Company's unsecured subordinated debt securities, to
be issued from time to time in one or more series as might
be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authen
ticated and delivered as provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture,
the Company desires to provide for the establishment of a
new series of its Debt Securities to be known as its ____%
Junior Subordinated Deferrable Interest Debentures due
____________, 203_ (the "Subordinated Debentures"), the form
and substance of which and the terms, provisions and
conditions thereof to be set forth as provided in the
Indenture and this ________ Supplemental Indenture; and
WHEREAS, KCPL Financing _, a Delaware statutory
business trust (the Trust"), has offered to the public $____
million aggregate stated liquidation amount of its Trust
Originated Preferred Securities (the Preferred Securities")
and has offered to the Company $____ million aggregate
stated liquidation amount of its Trust Originated Common
Securities (the Common Securities"), such Preferred
Securities and Common Securities representing undivided
beneficial interests in the assets of the Trust, and
proposes to invest the proceeds from such offering in
$___________ aggregate principal amount of the Subordinated
Debentures; and
WHEREAS, the Company has requested the Trustee to
execute and deliver this ________ Supplemental Indenture,
and all requirements necessary to make this ________
Supplemental Indenture a valid instrument, in accordance
with its terms, and to make the Subordinated Debentures,
when executed by the Company and authenticated and delivered
by the Trustee, the valid obligations of the Company, have
been performed, and the execution and delivery of this
________ Supplemental Indenture has been duly authorized in
all respects;
NOW, THEREFORE, in consideration of the purchase
and acceptance of the Subordinated Debentures by the holders
thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Subordinated
Debentures and the terms, provisions and conditions thereof,
the Company covenants and agrees with the Trustee as fol
lows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms. Unless the
context otherwise requires, (a) a term defined in the
Indenture has the same meaning when used in this ________
Supplemental Indenture; (b) a term defined anywhere in this
________ Supplemental Indenture has the same meaning
throughout; and (c) the following terms have the meanings
given to them in the Declaration: (i) Clearing Agency; (ii)
Delaware Trustee; (iii) Redemption Tax Opinion;
(iv) Preferred Security Certificate; (v) Property Trustee;
(vi) Pro Rata; (vii) Regular Trustees; and (viii) Tax Event.
In addition, the following terms have the
following respective meanings:
Declaration:
The term "Declaration" shall mean the Amended and
Restated Declaration of Trust of KCPL Financing _, a
Delaware business trust, dated as of ____________, 1996.
Maturity Date:
The term "Maturity Date" shall mean the date on
which the Subordinated Debentures mature and on which the
principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest
(as defined in Section 4.1) and Additional Interest (as
defined in Section 2.5(c)), if any.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean (i) any
payment in respect of (A) indebtedness of the Company for
money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds, notes or other similar instruments issued
by the Company including, without limitation, indebtedness
evidenced by securities issued pursuant to the General
Mortgage Indenture and Deed of Trust dated as of December 1,
1986, from the Company to United Missouri Bank of Kansas
City, N.A., as trustee, as supplemented and amended from
time to time; and the Indentures dated as of April 1, 1991,
February 15, 1992, November 15, 1992, November 1, 1994 and
December 1, 1994, between the Company and The Bank of New
York, as trustee; (ii) all capital lease obligations of the
Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all of its
obligations under any title retention agreement (but
excluding trade accounts payable arising in the ordinary
course of business); (iv) all obligations of the Company for
reimbursement on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction;
(v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to
in clauses (i) through (v) of other Persons secured by any
lien on any property or asset of the Company (whether or not
such obligation is assumed by the Company), except for (1)
any such indebtedness that is by its terms subordinated to
or pari passu with the Subordinated Debentures, as the case
may be, including all other debt securities and guarantees
in respect of those debt securities, issued to any other
trusts, partnerships or any other entity affiliated with the
Company which is a financing vehicle of the Company
("Financing Entity") in connection with an issuance of
preferred securities by such Financing Entity or other
securities which rank pari passu with, or junior to, the
Preferred Securities, and (2) any indebtedness between or
among the Company and its Affiliates.
Section 1.2. Interpretation. Each definition in
this ________ Supplemental Indenture includes the singular
and the plural, and references to the neuter gender include
the masculine and feminine where appropriate. Terms which
relate to accounting matters shall be interpreted in
accordance with generally accepted accounting principles in
effect from time to time. References to any statute mean
such statute as amended at the time and include any
successor legislation. The word "or" is not exclusive, and
the words "herein," "hereof" and "hereunder" refer to this
________ Supplemental Indenture as a whole. The headings to
the Articles and Sections are for convenience of reference
and shall not affect the meaning or interpretation of this
________ Supplemental Indenture. References to Articles and
Sections mean the Articles and Sections of this ________
Supplemental Indenture unless otherwise specified.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF
THE SUBORDINATED DEBENTURES
Section 2.1. Designation and Principal Amount.
There is hereby authorized a series of Debt Securities
designated the "_____% Junior Subordinated Deferrable
Interest Debentures due ______________, ____," limited in
aggregate principal amount to $___________, which amount
shall be as set forth in any written order of the Company
for the authentication and delivery of ________ pursuant to
Section 2.04 of the Indenture.
Section 2.2. Maturity. The Maturity Date will be
____________, ____, provided that the Company may at its
option change the Maturity Date to an earlier date not
earlier than __________, and shall give notice of any such
change to the Trustee not later than 120 days prior to such
changed Maturity Date, and give prompt notice of such change
to the holders of the Subordinated Debentures.
Section 2.3. Form and Payment. Except as
provided in Section 2.4, the Subordinated Debentures shall
be issued in fully registered certificated form without
interest coupons. Principal and interest on the
Subordinated Debentures issued in certificated form will be
payable, the transfer of such Subordinated Debentures will
be registrable and such Subordinated Debentures will be
exchangeable for Subordinated Debentures bearing identical
terms and provisions at the office or agency of the Trustee
in Chicago, Illinois, provided, however, that payment of
interest may be made at the option of the Company by check
mailed to the registered holder at such address as shall
appear in the Security Register. Notwithstanding the
foregoing, so long as the registered holder of any
Subordinated Debentures is the Property Trustee, the payment
of the principal of and interest (including Compounded
Interest and Additional Interest, if any) on such
Subordinated Debentures held by the Property Trustee will be
made at such place and to such account as may be designated
by the Property Trustee.
Section 2.4. Global Subordinated Debenture. In
connection with the dissolution of the Trust:
(a) the Subordinated Debentures in certificated
form may be presented to the Trustee by the Property
Trustee in exchange for a Global Security in an
aggregate principal amount equal to the aggregate
principal amount of the Subordinated Debentures so
presented, to be registered in the name of the
Depositary, or its nominee, and delivered by the
Trustee to the Depositary for crediting to the accounts
of its participants pursuant to the instructions of the
Regular Trustees. The Company, upon any such
presentation, shall execute a Global Security in such
aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance
with the Indenture and this ________ Supplemental
Indenture. Payments on the Subordinated Debentures
issued as a Global security will be made to the
Depositary; and
(b) if any Preferred Securities are held in non
book-entry certificated form, the Subordinated
Debentures in certificated form may be presented to the
Trustee by the Property Trustee and any Preferred
Security Certificate which represents Preferred
Securities other than Preferred Securities held by the
Clearing Agency or its nominee ("Non Book-Entry
Preferred Securities") will be deemed to represent
beneficial interests in Subordinated Debentures
presented to the Trustee by the Property Trustee having
an aggregate principal amount equal to the aggregate
stated liquidation amount of the Non Book-Entry Pre
ferred Securities until such Preferred Security
Certificates are presented to the Security Registrar
for transfer or reissuance at which time such Preferred
Security Certificates will be cancelled and a
Subordinated Debenture, registered in the name of the
holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate stated
liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company
and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this
________ Supplemental Indenture. On issue of such
Subordinated Debentures, Subordinated Debentures with
an equivalent aggregate principal amount that were
presented by the Property Trustee to the Trustee will
be deemed to have been cancelled.
Section 2.5. Interest.
(a) Each Subordinated Debenture will bear
interest at the rate of ____% per annum (the "Coupon Rate")
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 Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30 and
December 31 of each year (each, an "Interest Payment Date"),
commencing on __________, 199_, to the Person in whose name
such Subordinated Debenture or any predecessor Subordinated
Debenture 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 that Interest Payment Date. If pursuant to the
provisions of Section 2.11(c) of the Indenture the
Subordinated Debentures are no longer represented by a
Global Security, the Company may select a regular record
date for such interest installment which shall be any date
at least fifteen days before an Interest Payment Date.
(b) 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 Subordinated 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. The amount
of interest payable for any period shorter than a full
quarterly period for which interest is computed, will be
computed on the basis of the actual number of days elapsed
in such a 90-day quarter.
(c) If at any time while the Property Trustee is
the holder of any Subordinated Debentures, the Trust or the
Property Trustee is 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 case, the
Company will pay as additional interest ("Additional
Interest") on the Subordinated Debentures held by the
Property Trustee, such additional amounts as shall be
required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be
equal to the amounts the Trust and the Property Trustee
would have received had no such taxes, duties, assessments
or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE SUBORDINATED DEBENTURES
Section 3.1. Tax Event Redemption. If a Tax
Event has occurred and is continuing and the Company has
received a Redemption Tax Opinion, then, notwithstanding
Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days' nor more
than 60 days' notice to the registered holders of the
Subordinated Debentures to redeem the Subordinated
Debentures, in whole or in part, for cash within 90 days
following the occurrence of such Tax Event (the "90 Day
Period") at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the
"Redemption Price") provided that, if at the time there is
available to the Company the opportunity to eliminate,
within the 90 Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a
form or making an election, or pursuing some other similar
reasonable measure that has no adverse effect on the
Company, the Trust or the Holders of the Trust Securities
issued by the Trust, the Company shall pursue such
Ministerial Action in lieu of redemption; and provided
further, that the Company shall have no right to redeem the
Subordinated Debentures while the Trust is pursuing any
Ministerial Action pursuant to its obligations under the
Declaration. The Redemption Price shall be paid prior to
12:00 noon, New York time, on the date of such redemption or
at such earlier time as the Company determines and specifies
in the notice of redemption, provided the Company shall
deposit with the Trustee an amount sufficient to pay the
Special Redemption Price by 11:00 a.m. on the date such
Redemption Price is to be paid.
Section 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Article III of
the Indenture and to Section 3.2(b), the Company shall have
the right to redeem the Subordinated Debentures, in whole or
in part, from time to time, on or after _________, ___, at
the Redemption Price. Any redemption pursuant to this
paragraph will be made upon not less than 30 days' nor more
than 60 days' notice to the registered holder of the
Subordinated Debentures, at the Redemption Price. If the
Subordinated Debentures are only partially redeemed pursuant
to this Section 3.2, the Subordinated 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 Subordinated Debentures are registered as a Global
Security, the Depositary shall determine by lot the
principal amount of such Subordinated Debentures held by
each holder to be redeemed. The Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such
redemption or at such earlier time as the Company determines
and specifies in the notice of redemption, provided the
Company shall deposit with the Trustee an amount sufficient
to pay the Redemption Price by 11:00 a.m. on the date such
Redemption Price is to be paid.
(b) If a partial redemption of the Subordinated
Debentures would result in the delisting of the Preferred
Securities issued by the Trust from any national securities
exchange or other organization on which the Preferred Secu
rities are then listed, the Company shall not be permitted
to effect such partial redemption and may only redeem the
Subordinated Debentures in whole.
Section 3.3. No Sinking Fund. The Subordinated
Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment
Period. The Company shall have the right, at any time and
from time to time during the term of the Subordinated
Debentures, to extend the interest payment period of such
Subordinated Debentures for up to twenty (20) consecutive
quarters (the "Extended Interest Payment Period"); provided,
that, during any such Extended Interest Payment Period,
(a) the Company may not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any
of its capital stock (other than (i) purchases or
acquisitions of shares of Company common stock in connection
with the satisfaction by the Company of its obligations
under any employee benefit plans or any other contractual
obligation of the Company (other than a contractual
obligation ranking pari passu with or junior to the
Subordinated Debentures), (ii) as a result of a
reclassification of Company capital stock or the exchange or
conversion of one class or series of Company capital stock
for another class or series of Company capital stock or
(iii) the purchase of fractional interests in shares of
Company capital stock pursuant to the conversion or exchange
provisions of such Company capital stock or the security
being converted or exchanged), (b) the Company may not make
any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with
or junior to the Subordinated Debentures to which such
Extended Interest Payment Period applies and (c) the Company
may not make any guarantee payments with respect to the
foregoing (other than pursuant to the Preferred Securities
Guarantee). To the extent permitted by applicable law,
interest, the payment of which has been deferred because of
the extension of the interest payment period pursuant to
this Section 4.1, will bear interest compounded quarterly at
the Coupon Rate for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all
interest accrued and unpaid on the Subordinated Debentures,
including any Compounded Interest and Additional Interest
("Deferred Interest") which shall be payable to the holders
of the Subordinated Debentures in whose names the
Subordinated Debentures are registered in the Security
Register on the first record date after the end of the
Extended Interest Payment Period. Prior to the termination
of any 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 twenty (20) consecutive quarters or extend beyond the
maturity of the Subordinated Debentures. Upon the
termination of any Extended Interest Payment Period and upon
the payment of all Deferred Interest then due, the Company
may select a new Extended Interest Payment Period, subject
to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except
at the end thereof.
Section 4.2. Notice of Extension.
(a) If the Property Trustee is the only regis
tered holder of the Subordinated Debentures at the time the
Company selects an Extended Interest Payment Period, the
Company shall give written notice to both the Regular
Trustees and the Property Trustee of its selection of such
Extended Interest Payment Period one Business Day before the
earlier of (i) the next succeeding date on which Distri
butions on the Trust Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give
notice of the record or payment date for such Distributions
to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least
one Business Day before such record date.
(b) If the Property Trustee is not the only
holder of the Subordinated Debentures at the time the Com
pany selects an Extended Interest Payment Period, the
Company shall give the holders of the Subordinated
Debentures and the Trustee written notice of its selection
of such Extended Interest Payment Period ten (10) Business
Days before 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
Subordinated Debentures, but in any event at least two
Business Days before such record date.
(c) The quarter in which any notice is given
pursuant to paragraphs (a) or (b) of this Section 4.2 shall
be counted as one of the twenty quarters permitted in the
maximum Extended Interest Payment Period permitted under
Section 4.1.
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses. In connection
with the offering, sale and issuance of the Subordinated
Debentures to the Property Trustee in connection with the
sale of the Trust Securities by the Trust, the Company
shall:
(a) pay all costs and expenses relating to the
offering, sale and issuance of the Subordinated
Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and
compensation of the Trustee under the Indenture in
accordance with the provisions of Section 7.06 of the
Indenture;
(b) pay all costs and expenses of the Trust
(including, but not limited to, costs and expenses
relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (in
cluding commissions to the underwriters in connection
therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of the Trust,
including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel
and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the
acquisition, financing, and disposition of Trust
assets); and
(c) pay any and all taxes (other than United
States withholding taxes attributable to the Trust or
its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust.
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate. The
Company covenants and agrees, and each holder of
Subordinated Debentures issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all
Subordinated Debentures shall be issued subject to the
provisions of this Article VI; and each holder of a
Subordinated Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Subordinated 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 of the Company, whether outstanding at the date
of this ________ Supplemental Indenture or thereafter
incurred.
No provision of this Article VI shall prevent the
occurrence of any default or Event of Default hereunder.
Section 6.2. Default on Senior Indebtedness. In
the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or
any other payment due on any Senior Indebtedness of the
Company, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of
a default, then, in either case, 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 Subordinated Debentures.
In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee or any holder
of Subordinated Debentures when such payment is prohibited
by the preceding paragraph of this Section 6.2, 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 representa
tive 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 6.3. Liquidation; Dissolution; Bank
ruptcy. 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 upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for
in money in accordance with its terms, before any payment is
made by the Company on account of the principal (and
premium, if any) or interest on the Subordinated 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 Subordinated Debentures or the Trustee
would be entitled to receive from the Company, except for
the provisions of this Article VI, shall be 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
Subordinated Debentures or by the Trustee under this
Indenture if received by them or it, directly to the holders
of Senior Indebtedness of the Company (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 such Senior Indebtedness
may have been issued, as their respective interests may
appear, to the extent necessary to pay such 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 such Senior Indebtedness, before any
payment or distribution is made to the holders of
Subordinated 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 Subordinated Debentures before
all Senior Indebtedness of the Company 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 for the benefit of and shall be paid over or
delivered to the holders of such Senior Indebtedness or
their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any
instruments evidencing such 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 of the Company remaining unpaid to
the extent necessary to pay such Senior Indebtedness in full
in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
For purposes of this Article VI, 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 VI with respect to the Subordinated
Debentures to the payment of all Senior Indebtedness of the
Company that may at the time be outstanding, provided that
(i) such 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 such
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 X of the Indenture shall
not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 6.3 if such
other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions
stated in Article X of the Indenture. Nothing in Section
6.2 or in this Section 6.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06
of the Indenture.
Section 6.4. Subrogation. Subject to the payment
in full of all Senior Indebtedness of the Company, the
rights of the holders of the Subordinated Debentures shall
be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to such
Senior Indebtedness until the principal of (and premium, if
any) and interest on the Subordinated Debentures shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which
the holders of the Subordinated Debentures or the Trustee
would be entitled except for the provisions of this Article
VI, and no payment over pursuant to the provisions of this
Article VI, to or for the benefit of the holders of such
Senior Indebtedness by holders of the Subordinated
Debentures or the Trustee, shall, as between the Company,
its creditors other than holders of Senior Indebtedness of
the Company, and the holders of the Subordinated Debentures
be deemed to be a payment by the Company to or on account of
such Senior Indebtedness. It is understood that the
provisions of this Article VI are and are intended solely
for the purposes of defining the relative rights of the
holders of the Subordinated Debentures, on the one hand, and
the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article VI or elsewhere
in this Indenture or in the Subordinated Debentures is
intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of
the Company, and the holders of the Subordinated Debentures,
the obligation of the Company which is absolute and
unconditional, to pay to the holders of the Subordinated
Debentures the principal of (and premium, if any) and
interest on the Subordinated 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 Subordinated Debentures and creditors of the
Company, other than the holders of Senior Indebtedness of
the Company, nor shall anything herein or therein prevent
the Trustee or the holder of any Subordinated Debenture from
exercising all remedies otherwise permitted by applicable
law upon default under the Indenture, subject to the rights,
if any, under this Article VI of the holders of such 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 VI, the Trustee, subject
to the provisions of Section 7.01 of the Indenture, and the
holders of the Subordinated 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 Subordinated Debentures, for the purposes of
ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article VI.
Section 6.5. Trustee to Effectuate Subordination.
Each holder of a Subordinated Debenture by such holder's
acceptance thereof authorizes and directs the Trustee on
such holder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in
this Article VI and appoints the Trustee such holder's
attorney-in-fact for any and all such purposes.
Section 6.6. Notice by the Company. The Company
shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would
prohibit the making of any payment of monies to or by the
Trustee in respect of the Subordinated Debentures pursuant
to the provisions of this Article VI. Notwithstanding the
provisions of this Article VI or any other provision of the
Indenture and this ________ Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment
of monies to or by the Trustee in respect of the
Subordinated Debentures pursuant to the provisions of this
Article VI 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 7.01 of
the Indenture, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in
this Section 6.6 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 Subordinated 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 that
may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section
7.01 of the Indenture, 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 of the Company
(or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of such 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 such Senior Indebtedness
to participate in any payment or distribution pursuant to
this Article VI, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such 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 VI, 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 6.7. Rights of the Trustee; Holders of
Senior Indebtedness. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this
Article VI 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 Indenture shall deprive
the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness
of the Company, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are
specifically set forth in this Article VI, and no implied
covenants or obligations with respect to the holders of such
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 such Senior
Indebtedness and, subject to the provisions of Section 7.01
of the Indenture, the Trustee shall not be liable to any
holder of such Senior Indebtedness if it shall pay over or
deliver to holders of Subordinated Debentures, the Company
or any other Person money or assets to which any holder of
such Senior Indebtedness shall be entitled by virtue of this
Article VI or otherwise.
Section 6.8. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company 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 the Indenture,
regardless of any knowledge thereof that 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 of
the Company may, at any time and from time to time, without
the consent of or notice to the Trustee or the holders of
the Subordinated Debentures, without incurring
responsibility to the holders of the Subordinated Debentures
and without impairing or releasing the subordination
provided in this Article VI or the obligations hereunder of
the holders of the Subordinated Debentures to the holders of
such 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, such
Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing
the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release
any Person liable in any manner for the collection of such
Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other
Person.
ARTICLE VII
COVENANT TO LIST ON EXCHANGE
Section 7.1. Listing on Exchange. If the
Subordinated Debentures are to be issued as a Global
Security in connection with the distribution of the
Subordinated Debentures to the holders of the Preferred
Securities issued by the Trust upon the dissolution of the
Trust, the Company will use its best efforts to list such
Subordinated Debentures on the New York Stock Exchange or on
such other exchange as the Preferred Securities are then
listed.
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE
Section 8.1. Form of Subordinated Debenture. The
Subordinated Debentures and the Trustee's Certificate of
Authentication to be endorsed thereon are to be
substantially in the following forms:
(FORM OF FACE OF SUBORDINATED DEBENTURE)
[IF THE SUBORDINATED DEBENTURE IS TO BE A GLOBAL
SECURITY, INSERT: This Subordinated Debenture is a Global
Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or
a nominee of a Depositary. This Subordinated Debenture is
exchangeable for Subordinated Debentures registered in the
name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Inden
ture, and no transfer of this Subordinated Debenture (other
than a transfer of this Subordinated Debenture as a whole by
the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Subordinated Debenture is presented by
an authorized representative of The Depository Trust Company
(55 Water Street, New York, New York) to the issuer or its
agent for registration of transfer, exchange or payment, and
any Subordinated 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.]
No. $
CUSIP No.
KANSAS CITY POWER & LIGHT COMPANY
_____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ____________, 20__
KANSAS CITY POWER & LIGHT COMPANY, a Missouri
corporation (the "Company", which term includes any suc
cessor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _______
or registered assigns, the principal sum of ____________
Dollars on ____________, 20__, or such earlier date
established by the Company not earlier than ______________,
and to pay interest on said principal sum from ____________,
____ 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, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year commencing,
________, ____, at the rate of ____% per annum until the
principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue
installment of interest compounded quarterly 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 Subordinated
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 Subordinated Debenture (or one
or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the
regular record date for such interest installment [which
shall be the close of business on the Business Day next
preceding such Interest Payment Date.] [IF PURSUANT TO THE
PROVISIONS OF Section 2.11(C) OF THE INDENTURE THE
SUBORDINATED DEBENTURES ARE NO LONGER REPRESENTED BY A
GLOBAL SECURITY -- which shall be the close of business on
the ________ day preceding such Interest Payment Date.] Any
such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the
registered holders on such regular record date, and may be
paid to the Person in whose name this Subordinated Debenture
(or one or more Predecessor Securities) 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
this series of Subordinated Debentures not less than ten
(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
Subordinated Debentures may be listed, and upon such notice
as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium,
if any) and the interest on this Subordinated Debenture
shall be payable at the office or agency of the Trustee
maintained for that purpose in Chicago, Illinois, 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 to the registered holder at such address as shall
appear in the Security Register. Notwithstanding the
foregoing, so long as the holder of this Subordinated
Debenture is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this
Subordinated Debenture will be made at such place and to
such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Subordinated
Debenture is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this
Subordinated Debenture is issued subject to the provisions
of the Indenture with respect thereto. Each holder of this
Subordinated Debenture, by accepting the same, (a) agrees to
and shall be bound by such provisions, (b) authorizes and
directs the Trustee on behalf of such holder to take such
action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints
the Trustee the attorney-in-fact of such holder for any and
all such purposes. Each holder hereof, by 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 Subordinated 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 Subordinated Debenture shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The provisions of this Subordinated Debenture are
continued on the reverse side hereof and such continued
provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed.
Dated
KANSAS CITY POWER & LIGHT COMPANY
By
[Title]
Attest:
By
Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Debentures of the
series of Subordinated Debentures described in the within-
mentioned Indenture.
THE FIRST NATIONAL BANK _______________________
OF CHICAGO, as Authentication Agent
Not in Its Individual
Capacity But Solely
as Trustee
By By
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF SUBORDINATED DEBENTURE)
This Subordinated Debenture is one of a duly
authorized series of Subordinated Debentures of the Company
(herein sometimes referred to as the "Subordinated
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 ______, 199_, duly executed and
delivered between the Company and The First National Bank of
Chicago, not in its individual capacity but solely as
trustee (the "Trustee"), as supplemented by the ________
Supplemental Indenture dated as of ____________, 199_
between the Company and the Trustee (the Indenture as so
supplemented, 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 Subordinated
Debentures. By the terms of the Indenture, the Subordinated
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
Subordinated Debentures is limited in aggregate principal
amount as specified in said ________ Supplemental Indenture.
Upon the occurrence and continuation of a Tax
Event, in certain circumstances this Subordinated Debenture
will become due and payable at the principal amount together
with any interest accrued thereon (the "Redemption Price").
The Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier
time as the Company determines. The Company shall have the
right to redeem this Subordinated Debenture at the option of
the Company, without premium or penalty, in whole or in part
at any time on or after ____________, ____ (an "Optional
Redemption"), at the Redemption Price. Any Optional
Redemption pursuant to this paragraph will be made upon not
less than 30 days' nor more than 60 days' notice, at the
Redemption Price. If the Subordinated Debentures are only
partially redeemed by the Company pursuant to an Optional
Redemption, the Subordinated 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
Subordinated Debentures are registered as a Global Security,
the Depositary shall determine by lot the principal amount
of such Subordinated Debentures held by each holder to be
redeemed.
In the event of redemption of this Subordinated
Debenture in part only, a new Subordinated Debenture or
Subordinated 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 princi
pal of all of the Subordinated 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 permitting the
Company and the Trustee, with the consent of the holders of
not less than a majority in aggregate principal amount of
the Subordinated 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 Subordinated Debentures; provided, however,
that no such supplemental indenture shall (i) extend the
fixed maturity of any 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 Subordinated Debenture so
affected or (ii) reduce the aforesaid percentage of
Subordinated Debentures, the holders of which are required
to consent to any such supplemental indenture, without the
consent of the holders of each Subordinated Debenture then
outstanding and affected thereby. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Subordinated Debentures of
any series at the time outstanding affected thereby, on
behalf of all of the holders of the Subordinated 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 Subordinated Debentures of such series. Any
such consent or waiver by the registered holder of this
Subordinated 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 Subordinated
Debenture and of any Subordinated 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
Subordinated Debenture.
No reference herein to the Indenture and no provi
sion of this Subordinated 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 Subordinated Debenture
at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time
during the term of the Subordinated Debentures, from time to
time to extend the interest payment period of such
Subordinated Debentures for up to twenty (20) consecutive
quarters (an "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 Subordinated Debentures to the extent
that payment of such interest is enforceable under
applicable law). Before the termination of any such
Extended Interest Payment Period, the Company may further
extend such Extended Interest Payment Period, provided that
such Extended Interest Payment Period together with all such
further extensions thereof shall not exceed twenty (20)
consecutive quarters or extend beyond the maturity of the
Subordinated Debentures. 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 Subordinated
Debenture is transferable by the registered holder hereof on
the Security Register of the Company, upon surrender of this
Subordinated Debenture for registration of transfer at the
office or agency of the Trustee in Chicago, Illinois,
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 the
attorney of such holder duly authorized in writing, and
thereupon one or more new Subordinated 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 trans
fer of this Subordinated Debenture, the Company, the
Trustee, any paying agent and any Security Registrar may
deem and treat the registered holder hereof as the absolute
owner hereof (whether or not this Subordinated Debenture
shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security
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
Security 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 Subordinated 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 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 Subordinated Debentures of this series are
issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof.]
[This Global Security is exchangeable for Subordinated
Debentures in definitive form only under certain limited
circumstances set forth in the Indenture. Subordinated
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, Subordinated Debentures of this series [so issued]
are exchangeable for a like aggregate principal amount of
Subordinated Debentures of this series of a different
authorized denomination, as requested by the holder surren
dering the same.
All terms used in this Subordinated Debenture
which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ARTICLE IX
ORIGINAL ISSUE OF SUBORDINATED DEBENTURES
Section 9.1. Original Issue of Subordinated
Debentures. Subordinated Debentures in the aggregate
principal amount of $___________ may, upon execution of this
________ Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said
Subordinated 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 X
MISCELLANEOUS
Section 10.1. Ratification of Indenture. The
Indenture, as supplemented by this ________ Supplemental
Indenture, is in all respects ratified and confirmed, and
this ________ Supplemental Indenture shall be deemed part of
the Indenture in the manner and to the extent herein and
therein provided.
Section 10.2. Trustee Not Responsible for
Recitals. 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 ________ Supplemental Indenture.
Section 10.3. Governing Law. This ________
Supplemental Indenture and each Subordinated Debenture shall
be deemed to be a contract made under the internal laws of
the State of New York, and for all purposes shall be
construed in accordance with the laws of said State.
Section 10.4. Separability. In case any one or
more of the provisions contained in this ________
Supplemental Indenture or in the Subordinated Debentures
shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of
this ________ Supplemental Indenture or of the Subordinated
Debentures, but this ________ Supplemental Indenture and the
Subordinated Debentures shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
Section 10.5. Counterparts. This ________
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.
IN WITNESS WHEREOF, the parties hereto have caused
this ________ 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.
KANSAS CITY POWER & LIGHT COMPANY
By:_______________________________
Name:
Title:
[Corporate Seal]
Attest:
Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity
but solely as Trustee
By:_______________________________
Title:
Name:
[Corporate Seal]
Attest:
Title:
STATE OF MISSOURI )
COUNTY OF JACKSON ) ss:
On the day of ________, 199_, before me
personally came ________________, to me known, who, being by
me duly sworn, did depose and say that he is a
______________ of KANSAS CITY POWER & LIGHT COMPANY, 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 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
[seal] Commission expires
STATE OF ILLINOIS )
COUNTY OF COOK ):
On the day of _________, 199_, before me
personally came ____________, to me known, who, being by me
duly sworn, did depose and say that he is the
____________________ of THE FIRST NATIONAL BANK OF CHICAGO,
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 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
[seal] Commission expires
EXHIBIT 4-g
____________________________________
PREFERRED SECURITIES GUARANTEE AGREEMENT
KCPL Financing __
Dated as of ____________, 199_
____________________________________
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions 1
Section 1.2. Interpretation. 5
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application 5
Section 2.2. Lists of Holders of Preferred Securities 5
Section 2.3. Reports by the Guarantee Trustee 6
Section 2.4. Periodic Reports to Guarantee Trustee 6
Section 2.5. Evidence of Compliance with Conditions
Precedent 6
Section 2.6. Events of Default; Waiver. 6
Section 2.7. Events of Default; Notice 7
Section 2.8. Conflicting Interests 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee 7
Section 3.2. Certain Rights of Guarantee Trustee 9
Section 3.3. Not Responsible for Recitals or Issuance of
Guarantee 11
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility 12
Section 4.2. Appointment, Removal and Resignation of
Guarantee Trustee 12
ARTICLE V
GUARANTEE
Section 5.1. Guarantee 13
Section 5.2. Waiver of Notice and Demand 13
Section 5.3. Obligations Not Affected 13
Section 5.4. Rights of Holders 14
Section 5.5. Guarantee of Payment 15
Section 5.6. Subrogation 15
Section 5.7. Independent Obligations 15
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transaction 15
Section 6.2. Ranking 16
ARTICLE VII
TERMINATION
Section 7.1. Termination 16
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation 17
Section 8.2. Indemnification 17
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns 18
Section 9.2. Amendments 18
Section 9.3. Notices 18
Section 9.4. Benefit 19
Section 9.5. Governing Law 19
PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT
(this "Guarantee Agreement"), dated as of ____________,
199_, is executed and delivered by KANSAS CITY POWER & LIGHT
COMPANY, a Missouri corporation (the "Guarantor"), and The
First National Bank of Chicago, a national banking
association duly organized and existing under the laws of
the United States, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of KCPL
Financing _, a Delaware statutory business trust (the "I
ssuer").
W I T N E S S E T H:
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), dated as of
____________, 199_, among the trustees of the Issuer, the
Guarantor as Sponsor and the holders from time to time of
undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof $___________
aggregate stated liquidation amount of its ____% Trust Origi
nated Preferred Securities (the "Preferred Securities"); and
WHEREAS, as incentive for the Holders to purchase
the Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in
this Guarantee Agreement, to pay to the Holders of the
Preferred Securities 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
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. In this Guarantee
Agreement, unless the context otherwise requires: (a)
capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1; (b) a term defined
anywhere in this Guarantee Agreement has the same meaning
throughout; and (c) a term defined in the Trust Indenture
Act has the same meaning when used in this Guarantee Agree
ment unless otherwise defined in this Guarantee Agreement or
unless the context otherwise requires.
Affiliate:
The term "Affiliate" has the same meaning as given
to that term in Rule 405 of the Securities Act of 1933 or
any successor rule thereunder.
Business Day:
The term "Business Day" means any day other than a
day on which banking institutions in Chicago, Illinois or
New York, New York are authorized or required by any
applicable law to close.
Common Securities:
The term "Common Securities" means the securities
representing common undivided beneficial interests in the
assets of the Issuer.
Covered Person:
The term "Covered Person" means any Holder or
beneficial owner of Preferred Securities.
Event of Default:
The term "Event of Default" means a default by the
Guarantor on any of its payment or other obligations under
this Guarantee Agreement.
Guarantee Payments:
The term "Guarantee Payments" means the following
payments or distributions, without duplication, with respect
to the Preferred Securities, to the extent not paid or made
by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on
the Preferred Securities to the extent the Issuer shall have
funds available therefor, (ii) the redemption price,
including all accrued and unpaid Distributions to the date
of redemption (the "Redemption Price") to the extent the
Issuer has funds available therefor, with respect to any
Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in
connection with the distribution of Subordinated Debentures
to the Holders in exchange for Preferred Securities as
provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Preferred Securities to the date
of payment, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation
Distribution").
Guarantee Trustee:
The term "Guarantee Trustee" means The First
National Bank of Chicago, as trustee under this Guarantee
Agreement, until a Successor Guarantee Trustee has been
appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement and thereafter means such
Successor Guarantee Trustee.
Holder:
The term "Holder" shall mean any holder, as
registered on the books and records of the Issuer, of any
Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage
of Preferred Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
Indemnified Person:
The term "Indemnified Person" means the Guarantee
Trustee, any Affiliate of the Guarantee Trustee, or any
officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee
Trustee.
Indenture:
The term "Indenture" means the Indenture dated as
of ___________, 199_, between the Guarantor (the "Debenture
Issuer") and The First National Bank of Chicago, as trustee,
and any amendment thereto and any indenture supplemental
thereto pursuant to which certain unsecured subordinated
debt securities of the Debenture Issuer are to be issued to
the Property Trustee of the Issuer.
Majority in liquidation amount of the Securities:
The term "Majority in liquidation amount of the
Securities" means, except as provided by the Trust Indenture
Act, a vote by Holder(s) of Preferred Securities, voting
separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or maturity, plus accrued and unpaid
Distributions to the date upon which the voting percentages
are determined) of all Preferred Securities.
Officers' Certificate:
The term "Officers' Certificate" means, with
respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee
Agreement shall include:
(a) a statement that each such officer
signing the Officers' Certificate has read the
covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and
scope of the examination or investigation
undertaken by each such officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has
made such examination or investigation as, in such
officer's opinion, is necessary to enable such
officer to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the
opinion of each such officer, such condition or
covenant has been complied with.
Person:
The term "Person" means any individual,
corporation, partnership, limited liability company, joint
venture, joint stock company, unincorporated association or
government or any agency or political subdivision thereof,
or any other entity of whatever nature.
Responsible Officer:
The term "Responsible Officer", when used with
respect to the Guarantee Trustee, means the Chairman of the
board of directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate
trust officer or any other officer or assistant officer of
the Guarantee Trustee customarily performing functions
similar to those performed by any of the persons who at the
time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
Subordinated Debentures:
The term "Subordinated Debentures" means the
series of unsecured subordinated debt securities of the
Guarantor designated the ____% Junior Subordinated
Defferable Interest Debentures due ___________, ____ held by
the Property Trustee of the Issuer.
Successor Guarantee Trustee:
The term "Successor Guarantee Trustee" means a
successor Guarantee Trustee possessing the qualifications to
act as Guarantee Trustee under Section 4.1.
Trust Indenture Act:
The term "Trust Indenture Act" means the Trust
Indenture Act of 1939.
Section 1.2. Interpretation. Each definition in
this Guarantee Agreement includes the singular and the
plural, and references to the neuter gender include the
masculine and feminine where appropriate. Terms which
relate to accounting matters shall be interpreted in
accordance with generally accepted accounting principles in
effect from time to time. References to any statute mean
such statute as amended at the time and include any
successor legislation. The word "or" is not exclusive, and
the words "herein," "hereof" and "hereunder" refer to this
Guarantee Agreement as a whole. The headings to the
Articles and Sections are for convenience of reference and
shall not affect the meaning or interpretation of this
Guarantee Agreement. References to Articles and Sections
mean the Articles and Sections of this Guarantee Agreement
unless otherwise specified.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to
be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of
this Guarantee Agreement 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 2.2. Lists of Holders of Preferred
Securities.
(a) The Guarantor shall provide the Guarantee
Trustee with a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the
Holders of the Preferred Securities ("List of Holders") as
of such date, (i) within ten Business Days after January 1
and June 30 of each year, and (ii) at any other time, within
30 days of receipt by the Guarantor of a written request for
a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Guarantee Trustee, pro
vided that the Guarantor shall not be obligated to provide
such List of Holders at any time when the List of Holders
does not differ from the most recent List of Holders given
to the Guarantee Trustee by the Guarantor. The Guarantee
Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Within 60 days after May 15 of each year, the Guarantee
Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act.
The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Guarantee
Trustee. The Guarantor shall provide to the Guarantee
Trustee such documents, reports and information as required
by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314
of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with
Conditions Precedent. The Guarantor shall provide to the
Guarantee Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. Events of Default; Waiver. The
Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default
and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 2.7. Events of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days
after a Responsible Officer has knowledge of the occurrence
of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities,
notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before the
giving of such notice, provided, that the Guarantee Trustee
shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of
the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to
have knowledge of any Event of Default unless the Guarantee
Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Declaration
shall have obtained written notice, of such Event of
Default.
Section 2.8. Conflicting Interests. The
Declaration shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee
Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders of the
Preferred Securities, and the Guarantee Trustee shall not
transfer this Guarantee Agreement to any Person except to a
Holder of Preferred Securities exercising the rights of such
Holder pursuant to Section 5.4(b) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guaran
tee Agreement for the benefit of the Holders of the
Preferred Securities.
(c) The Guarantee Trustee, before the occurrence
of any Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be
read into this Guarantee Agreement against the Guarantee
Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the
same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement
shall be construed to relieve the Guarantee Trustee from
liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any
Event of Default and after the curing or waiving
of all such Events of Default that may have
occurred:
(A) the duties and obligations of
the Guarantee Trustee shall be determined
solely by the express provisions of this
Guarantee Agreement, and the Guarantee
Trustee shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Guarantee
Agreement, and no implied covenants or
obligations shall be read into this Guarantee
Agreement against the Guarantee Trustee; and
(B) in the absence of bad faith on
the part of the Guarantee Trustee, the
Guarantee Trustee may conclusively rely, as
to the truth of the statements and the
correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Guarantee Trustee and
conforming to the requirements of this
Guarantee Agreement; but in the case of any
such certificates or opinions that by any pro
vision hereof are specifically required to be
furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Declaration;
(ii) the Guarantee Trustee shall not be
liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was
made;
(iii) the Guarantee 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 not less than a
Majority in liquidation amount of the Preferred
Securities at the time outstanding relating to the
time, method and place of conducting any pro
ceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee
Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur
personal financial liability in the performance of
any of its duties or in the exercise of any of its
rights or powers, if there is reasonable grounds
for believing that the repayment of such funds or
liability is not reasonably assured to it under
the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not
reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and
shall be fully protected in acting or refraining
from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, re
quest, direction, consent, order, approval, bond,
security or other paper or document believed by it
to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the
Guarantor contemplated by this Guarantee Agreement
shall be sufficiently evidenced by a Direction or
an Officers' Certificate.
(iii) Whenever in the administration of
this Guarantee Agreement the Guarantee Trustee
shall deem it desirable that a matter be proved or
established before taking, suffering or omitting
any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically pre
scribed) may, in the absence of bad faith on its
part, request and rely upon an Officers'
Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have
no duty to see to any recording, filing or regis
tration of any instrument (or any rerecording,
refiling or reregistration thereof).
(v) The Guarantee Trustee may consult
with counsel and the written advice or opinion of
such counsel with respect to legal matters shall
be full and complete authorization and protection
in respect of any action taken or suffered or
omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such coun
sel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees.
The Guarantee Trustee shall have the right at any
time to seek instructions concerning the
administration of this Guarantee Agreement from
any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be
under no obligation to exercise any of the rights
or powers vested in it by this Guarantee Agreement
at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee
Trustee reasonable security or indemnity against
the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred
by it in complying with such request or direction,
including such reasonable advances as may be
requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi)
shall, however, relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers
vested in it by this Guarantee Agreement.
(vii) The Guarantee Trustee shall not
be bound to make any investigation into the facts
or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, re
quest, direction, consent, order, approval, bond,
security or other papers or documents, but the
Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The Guarantee 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 Guarantee
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.
(ix) Any action taken by the Guarantee
Trustee or its agents hereunder shall bind the
Holders of the Preferred Securities, and the
signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform
any such action. No third party shall be required
to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any
of the terms and provisions of this Guarantee
Agreement, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of
this Guarantee Agreement the Guarantee Trustee
shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee
Trustee (i) may request instructions from the
Holders of a Majority in liquidation amount of the
Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such
other action until such instructions are received,
and (iii) shall be protected in acting in accor
dance with such instructions.
(b) No provision of this Guarantee Agreement
shall be deemed to impose any duty or obligation on the
Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in
which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform
any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be
a duty.
Section 3.3. Not Responsible for Recitals or
Issuance of Guarantee. The recitals contained in this
Guarantee shall be taken as the statements of the Guarantor,
and the Guarantee Trustee does not assume any responsibility
for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this
Guarantee Agreement.
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guar
antor; and
(ii) be a corporation organized and doing
business under the laws of the United States of America
or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institu
tional trustee under the Trust Indenture Act, autho
rized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and sub
ject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), 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 pub
lished.
(b) If at any time the Guarantee Trustee shall
cease to be eligible so to act under Section 4.1(a), the
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire
any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Guarantee Trustee and
Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation
of Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee
Trustee may be appointed or removed without cause at any
time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office
shall hold office until a Successor Guarantee Trustee shall
have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to
the Guarantor, which resignation shall not take effect until
a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed
by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have
been appointed and accepted appointment as provided in this
Section 4.2 within 60 days after delivery to the Guarantor
of an instrument of resignation, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section 5.1. Guarantee. The Guarantor
irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of
amounts theretofore paid by the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim
that 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 5.2. Waiver of Notice and Demand. The
Guarantor hereby waives notice of acceptance of this Guaran
tee 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 or any other
Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.3. Obligations Not Affected. The
obligations, covenants, agreements and duties of the Guaran
tor 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 the 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 Distributions,
Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securi
ties or the extension of time for the performance of
any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than
an extension of time for payment of Distributions that
results from the extension of any interest payment
period on the Subordinated Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of dili
gence on the part of the Holders to enforce, assert or
exercise any right, privilege, power or remedy con
ferred on the Holders pursuant to the terms of the Pre
ferred 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, the Preferred Securities;
(f) the settlement or compromise of any obli
gation 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 5.3 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 5.4. Rights of Holders.
(a) The Holders of a Majority in liquidation
amount of the Preferred Securities have the right to direct
the time, method and place of conducting of any proceeding
for any remedy available to the Guarantee Trustee in respect
of this Guarantee Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement.
(b) If the Guarantee Trustee fails to enforce
this Guarantee Agreement, any Holder of Preferred Securities
may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agree
ment, without first instituting a legal proceeding against
the Issuer, the Guarantee Trustee or any other Person.
Section 5.5. Guarantee of Payment. This
Guarantee Agreement creates a guarantee of payment and not
of collection.
Section 5.6. Subrogation. The Guarantor shall be
subrogated to all (if any) rights of the Holders of
Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this
Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provi
sions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result
of 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 5.7. Independent Obligations. 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 as 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 (g), inclusive, of
Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transaction. So long
as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an event of
default under the Declaration, then (a) the Guarantor shall
not declare or pay any dividend on, or make any distribution
with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital
stock (other than (i) purchases or acquisitions of shares of
Guarantor common stock in connection with the satisfaction
by the Guarantor of its obligations under any employee
benefit plans or any other contractual obligations of the
Guarantor, other than a contractual obligation ranking pari
passu, with or junior to the Subordinated Debentures),
(ii) as a result of a reclassification of Company capital
stock or the exchange or conversion of one class or series
of Company capital stock for another class or series of
Company capital stock or (iii) the purchase of fractional
interests in shares of Company capital stock pursuant to the
conversion or exchange provisions of such Company capital
stock or the security being converted or exchanged), (b) the
Guarantor shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the
Guarantor which rank pari passu with or junior to the
Subordinated Debentures and (c) the Guarantor shall not make
any guarantee payments with respect to the foregoing (other
than pursuant to this Guarantee Agreement and other
guarantee agreements entered into by the Guarantor with
respect to preferred securities of any Affiliate of the
Guarantor).
Section 6.2. Ranking. This Guarantee Agreement
will constitute an unsecured obligation of the Guarantor and
will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, including the
Subordinated Debentures, except those liabilities of the
Guarantor made pari passu or subordinate by their terms,
(ii) pari passu with the most senior preferred 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 securities of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
Section 7.1. Termination. This Guarantee
Agreement shall terminate upon (i) full payment of the
Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Subordinated Debentures to the Holders
of all of the Preferred Securities or (iii) upon full
payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at
any time any of Preferred Securities must restore payment
of any sums paid under the Preferred Securities or under
this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation.
(a) No Indemnified Person shall be liable, respon
sible or accountable in damages or otherwise to the
Guarantor 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 in
accordance with this Guarantee Agreement and in a manner
that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indem
nified Person by this Guarantee 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 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
Guarantor and upon such information, opinions, reports or
statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are
within such Person's professional or expert competence and
who has been selected with reasonable care by or on behalf
of the Guarantor, 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 Distribu
tions to Holders of Preferred Securities might properly be
paid.
Section 8.2. Indemnification.
(a) To the fullest extent permitted by applicable
law, the Guarantor 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 in accordance with this Guarantee Agree
ment and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on
such Indemnified Person by this Guarantee Agreement, except
that no Indemnified Person shall be entitled to be indemni
fied in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an Indemni
fied Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the
Guarantor of an undertaking by or on behalf of the Indemni
fied Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns. All
guarantees and agreements contained in this Guarantee Agree
ment 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 9.2. Amendments. Except with respect to
any changes that do not materially 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 at least 66-2/3%
in liquidation amount of all the outstanding Preferred
Securities. The provisions of Section 12.2 of the Decla
ration with respect to meetings of Holders of the Preferred
Securities apply to the giving of such approval.
Section 9.3. Notices. All notices provided for
in this Guarantee 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 Guarantee Trustee, at the
Guarantee Trustee's mailing address set forth below (or
such other address as the Guarantee Trustee may give
notice of to the Holders of the Preferred Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address
as the Guarantor may give notice of to the Holders of
the Preferred Securities):
Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106-2124
Attention: Treasurer
(c) If given to any Holder of Preferred Secu
rities, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability
to deliver.
Section 9.4. Benefit. This Guarantee Agreement
is solely for the benefit of the Holders of the Preferred
Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
Section 9.5. Governing Law. 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.
KANSAS CITY POWER & LIGHT COMPANY
By: _______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
Not in its individual capacity but
solely as Guarantee Trustee
By: _______________________
Name:
Title:
Exhibit 5-a
December 17, 1996
KCPL Financing I
KCPL Financing II
KCPL Financing III
c/o Kansas City Power & Light Company
1201 Walnut
Kansas City, MO 64106-2124
Ladies and Gentlemen:
We have acted as special Delaware counsel for KCPL
Financing I, KCPL Financing II and KCPL Financing III, each a Delaware business
trust (collectively the "Trusts", and individually a "Trust"), in connection
with the issuance by the Trusts of the Preferred Securities (defined below).
For purposes of giving this opinion, our
examination of documents has been limited to the examination
of originals or copies of the following (collectively
referred to herein as the "Documents"):
(a) The Certificate of Trust of each of the Trusts (the
"Trust Certificates"), dated December 10, 1996, as filed in
the office of the Delaware Secretary of State on December 11, 1996;
(b) The Declaration of Trust of each of the Trusts, dated
as of December 10, 1996, among Kansas City Power & Light
Company, a Missouri corporation (the "Company") and the
trustees of the respective Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus
and a prospectus supplement (the "Prospectus"), relating to
the Trust Originated Preferred Securities (the "Preferred
Securities") of the Trusts, representing preferred undivided
beneficial interests in the assets of the respective Trust, as filed by
the Company, the Trusts and others as set forth therein, with
the Securities and Exchange Commission on December 17, 1996;
(d) A form of Amended and Restated Declaration of
Trust of each of the Trusts, to be entered into among the Company,
the trustees of each respective Trust named therein and the holders,
from time to time, of undivided beneficial interests in each respective
Trust (the "Declarations"), attached as an exhibit to the
Registration Statement; and
(e) A Certificate of Good Standing for each of the Trusts
dated the date hereof, obtained from the Delaware Secretary
of State.
Initially capitalized terms used herein and not
otherwise defined shall have the respective meanings set
forth in the Declarations.
For purposes of this opinion, we have not reviewed
any documents other than the Documents. In particular, we
have not reviewed any document (other than the Documents)
that is referred to in, or incorporated by reference into
the Documents. We have expressly 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 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.
We have assumed (i) the genuineness of the
signatures of, the authority of, and the legal capacity of,
each natural person signing the Declarations on behalf of the
respective parties, (ii) the due authorization, execution
and delivery by all parties thereto of all documents
examined by us, (iii) the genuineness of all signatures and
the authenticity and completeness of all records,
certificates, instruments and documents submitted to us as
originals; and (iv) the conformity to authentic originals of
all records, certificates, instruments and documents
submitted to us as certified, conformed, photostatic or
facsimile copies thereof.
For purposes of this opinion, we have assumed (i)
that each Declaration constitutes the entire agreement among
the parties thereto with respect to the subject matter
thereof, including with respect to the creation, operation
and termination of each respective Trust, and that the Declarations and
the Trust Certificates are in full force and effect and have
not been amended, (ii) the due creation or due formation, as
the case may be, and valid existence in good standing of
each party (other than the Trusts) to the Documents examined
by us under the laws of the jurisdiction governing its
creation, organization or formation, (iii) 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 thereunder, (iv) the due authorization,
execution and delivery by all parties thereto of all
Documents examined by us, (v) the receipt by each Person to
whom a Preferred Security is to be issued by each respective Trust
(collectively, the "Security Holders") of a Certificate for
such Preferred Security and the full payment for the
Preferred Security acquired by it, in accordance with each respective
Declaration and the Registration Statement; and (vi) that
the Preferred Securities are issued and sold to the Security
Holders in accordance with each respective Declaration and the
Registration Statement.
Based upon the foregoing and subject to the exceptions,
qualifications and limitations herein set forth, we are of
the opinion that:
1. Each Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act. 12 Del. C. Section 3801, et seq.
(the "Business Trust Act").
2. The Preferred Securities issued by each Trust will represent
valid, fully paid and non-assessable undivided beneficial interests
in the assets of such Trust.
3. The Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations
for profit under the General Corporation Law of the State of
Delaware.
With respect to the opinions set forth in paragraphs 2
and 3 above, we note that the Security Holders of each Trust may be
obligated to make payments as set forth in each respective Declaration.
We express no opinion herein as to the laws of any
jurisdiction except the laws of the State of Delaware
(excluding any tax laws, fraudulent conveyance laws,
fraudulent transfer laws and securities laws, and rules,
regulations and orders thereunder, and further excluding
judicial decisions to the extent that they deal with any of
the foregoing). This opinion is given as of the date hereof
and is based upon present laws and reported court decisions
as they exist and are construed as of the date hereof.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement. In addition, we hereby consent to
the use of our name under the heading "Legal Matters" in the
Prospectus. 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/ Pepper, Hamilton & Scheetz
Exhibit 5-b
December 17, 1996
Kansas City Power & Light Company
1201 Walnut Street
Kansas City, MO 64106
Ladies and Gentlemen:
I refer to the proposed issuance and sale by you of up to
$300,000,000 of Subordinated Debentures and Preferred Securities
Guarantees under the Registration Statement (Form S-3) filed with
the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
I am familiar with the proceedings to date with respect to
such records, documents and matters of law and satisfied myself
as to such matters of fact as I have considered relevant for
purposes of this opinion.
I am of the opinion that
1. Kansas City Power & Light Company (the "Company")
is a corporation duly organized and existing under the
laws of the State of Missouri, and duly authorized and
qualified to transact the business in which it is
engaged in the States of Missouri and Kansas.
2. The Indenture and proposed form of Supplemental
Indenture between the Company and First National Bank
of Chicago creating the Subordinated Debentures
(Exhibits 4-c and 4-d ) are in due legal form.
3. The proposed form of the Subordinated Debenture
(included in Exhibit 4-d) is in due legal form.
4. The proposed form of the Preferred Securities
Guarantee Agreement (Exhibit 4-g) is in due legal form.
Kansas City Power & Light Company
December 17, 1996
Page 2
5. When (a) appropriate regulatory authority has been
issued; (b) the Registration Statement shall have
become effective; (c) the issuance of the Subordinated
Debentures has been duly authorized; and (d) the
Indenture and Supplemental Indenture for the
Subordinated Debentures and the Preferred Securities
Guarantee Agreement have been executed by the proper
parties and have been duly recorded.
(i) the Subordinated Debentures and
Preferred Securities Guarantees will be legally
issued, fully paid, non-assessable and binding
obligations of the Company, with the express terms
and provisions as set forth in the appropriate
indenture; and
(ii) no approvals, other than those referred
to above, will be required in connection with the
creation and issuance of the Subordinated
Debentures and Preferred Securities Guarantees.
I hereby consent to the use of this opinion as an exhibit to
the above-mentioned Registration Statement.
Sincerely,
/s/Jeanie Sell Latz
Jeanie Sell Latz
Senior Vice President and
Chief Legal Officer
Exhibit 8
December 17, 1996
Merrill Lynch & Co.
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
We have acted as counsel to Merrill Lynch & Co. in
connection with the proposed offering by KCPL Financing I,
KCPL Financing II and KCPL Financing III, all Delaware
statutory business trusts (the "Trusts"), of Trust
Origninated Preferred Securities (the "Preferred
Securities"), as described in the Registration Statement on
Form S-3 (the "Registration Statement"), which is being filed
by Kansas City Power & Light Company, a Missouri corporation
(the "Company"), and the Trusts with the Securities and
Exchange Commission pursuant to the Securities Act of 1933,
as amended. The Registration Statement includes the
Prospectus and the Prospectus Supplement (collectively, the
"Prospectuses") relating to such offering.
In rendering the opinion expressed below, we have
examined the Prospectuses and such other documents as we have
deemed relevant and necessary, including, without limitation,
the Form of Amended and Restated Declaration of Trust, the
Indenture, the Form of Supplemental Indenture and the Form of
Preferred Securities Guarantee attached as Exhibits to the
Registration Statement. Such opinion is conditioned, among
other things, upon the accuracy and completeness of the
facts, information and representations contained in the
Prospectuses as of the date hereof and the continuing
accuracy and completeness thereof as of the date of the
issuance of the Preferred Securities. We have assumed that
the transactions contemplated by the Prospectuses and such
other documents will occur as provided therein and that there
will be no material change to the Prospectuses or any of such
other documents between the date hereof and the date of the
issuance of the Preferred Securities.
Based upon and subject to the foregoing, we are of
the opinion that the discussion set forth in the Prospectus
Supplement under the caption "UNITED STATES FEDERAL INCOME
TAXATION" is a fair and accurate summary of the matters
addressed therein, based upon current law and the assumptions
stated or referred to therein.
We assume no obligation to update or supplement
this letter to reflect any facts or circumstances which may
hereafter come to our attention with respect to the opinion
expressed above, including any changes in applicable law
which may hereafter occur.
We hereby consent to the filing of this letter as
an Exhibit to the Registration Statement and to all
references to our Firm included in or made a part of the
Registration Statement.
Very truly yours,
/s/ Sidley & Austin
Exhibit 12
KANSAS CITY POWER & LIGHT COMPANY
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED DIVIDEND REQUIREMENTS
Year ended December 31
Twelve Months Ended ___________________________________________________________
September 30, 1996 1995 1994 1993 1992 1991
___________________ ___________________________________________________________
(Thousands)
Net income $111,753 $122,586 $104,775 $105,772 $86,334 $103,893
Add:
Taxes on income 47,370 66,803 66,377 67,953 52,196 60,278
Kansas City earnings tax 739 958 524 495 382 242
___________________ ___________________________________________________________
Total taxes on income 48,109 67,761 66,901 68,448 52,578 60,520
___________________ ___________________________________________________________
Interest on value of
leased property 8,007 8,269 6,732 7,273 6,366 5,075
Interest on long-term debt 53,372 52,184 43,962 50,118 54,266 63,057
Interest on short-term debt 1,272 1,189 1,170 750 2,749 3,299
Other interest expense
and amortization 4,731 3,112 4,128 4,113 2,173 2,665
___________________ ___________________________________________________________
Total fixed charges 67,382 64,754 55,992 62,254 65,554 74,096
___________________ ___________________________________________________________
Earnings before taxes
on income and fixed
charges $ 227,244 $255,101 $227,668 $236,474 $204,466 $238,509
___________________ ___________________________________________________________
___________________ ___________________________________________________________
Ratio of earnings to
fixed charges 3.37 3.94 4.07 3.80 3.12 3.22
___________________ ___________________________________________________________
___________________ ___________________________________________________________
Preferred dividends $ 3,812 $ 4,011 $ 3,457 $ 3,153 $ 3,062 $ 6,023
Income taxes required 1,641 2,217 2,207 2,045 1,865 3,508
___________________ ___________________________________________________________
Earnings before income
taxes required for
preferred dividends 5,453 6,228 5,664 5,198 4,927 9,531
Fixed charges 67,382 64,754 55,992 62,254 65,554 74,096
___________________ ___________________________________________________________
Total combined fixed
charges and preferred
dividend requirements $72,835 $70,982 $61,656 $67,452 $70,481 $83,627
___________________ ___________________________________________________________
___________________ ___________________________________________________________
Ratio of earnings to
combined fixed charges
and preferred dividend
requirements 3.12 3.59 3.69 3.51 2.90 2.85
___________________ ___________________________________________________________
___________________ ___________________________________________________________
Exhibit 23-a
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-3 of our report dated January 31, 1996, included
in the Annual Report on Form 10-K for the fiscal year ended December
31, 1995, on our audits of the consolidated financial statements of
Kansas City Power & Light Company and Subsidiary. We also consent to
the reference to our firm under the caption "Experts."
/s/Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Kansas City, Missouri
December 17, 1996
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/David L. Bodde
David L. Bodde
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared David L. Bodde,
to be known to be the person described in and who executed the
foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/William H. Clark
William H. Clark
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared William H.
Clark, to be known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/Robert J. Dineen
Robert J. Dineen
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared Robert J.
Dineen, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/Arthur J. Doyle
Arthur J. Doyle
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared Arthur J.
Doyle, to be known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/W. Thomas Grant II
W. Thomas Grant II
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared W. Thomas Grant
II, to be known to be the person described in and who executed
the foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/George E. Nettels, Jr.
George E. Nettels, Jr.
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared George E.
Nettels, Jr., to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that he executed the same as his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, her true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/Linda H. Talbott
Linda H. Talbott
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared Linda H.
Talbott, to be known to be the person described in and who
executed the foregoing instrument, and who, being by me first
duly sworn, acknowledged that she executed the same as her free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, a Director of Kansas City Power &
Light Company, a Missouri corporation, does hereby constitute and
appoint Drue Jennings, his true and lawful attorney and agent,
with full power and authority to execute in the name and on
behalf of the undersigned as such director a Registration
Statement on Form S-3 and all amendments thereto; hereby granting
unto such attorney and agent full power of substitution and
revocation in the premises; and hereby ratifying and confirming
all that such attorney and agent may do or cause to be done by
virtue of these presents.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 5th day of November, 1996.
/s/Robert H. West
Robert H. West
STATE OF MISSOURI )
) ss
COUNTY OF JACKSON )
On this 5th day of November, 1996, before me the
undersigned, a Notary Public, personally appeared Robert H. West,
to be known to be the person described in and who executed the
foregoing instrument, and who, being by me first duly sworn,
acknowledged that he executed the same as his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year last above written.
/s/Jacquetta L. Hartman
Notary Public
Ray County, Missouri
My Commission Expires:
April 8, 2000
Exhibit 25-a
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
Kansas City Power & Light Company
(Exact name of obligor as specified in its charter)
Missouri 44-0308720
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between Kansas City Power & Light Company. and The
First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1)............................... RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing..................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)....................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing.................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing..................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased.................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase........... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................. RCON 2840 14,120 15.a.
b. Trading Liabilities...................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less............... RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year............ RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases...................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding..... RCFD 2920 626,690 18.
19. Subordinated notes and debentures........................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)...................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20).............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus............ RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............... RCFD 3838 0 23.
24. Common stock................................................ RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves................... RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities.......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments......... RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27)........... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)....................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995............................................................ RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Exhibit 25-b
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
KCPL Financing I
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Trust Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between KCPL Financing I and The First National Bank
of Chicago, the undersigned, in accordance with Section 321(b)
of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations,
may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............... 0081 4,041,784 1.a.
b. Interest-bearing balances(2)........................................ 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)........... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........ 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold.................................................. 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell..................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................... RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses........................... RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve............................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................ 2125 22,417,107 4.d.
5. Assets held in trading accounts........................................ 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)............... 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)........................... 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding........... 2155 626,690 9.
10. Intangible assets (from Schedule RC-M)................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)...................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)............................... 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................ RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1)............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)..................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................ RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................ RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury............... RCON 2840 14,120 15.a.
b. Trading Liabilities.................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year.......... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases.................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding... RCFD 2920 626,690 18.
19. Subordinated notes and debentures......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G).................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............ RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus.......... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............. RCFD 3838 0 23.
24. Common stock.............................................. RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).. RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities........................................ RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments....... RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27)......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)..................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995........................................................... RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
Kansas City Power & Light Company
(Exact name of obligor as specified in its charter)
Missouri 44-0308720
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Securities Guarantee
for
KCPL Financing I
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between Kansas City Power & Light Company. and The
First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1).............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing.................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing.................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase.......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 14,120 15.a.
b. Trading Liabilities..................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less.............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year........... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases..................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding.... RCFD 2920 626,690 18.
19. Subordinated notes and debentures.......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)..................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus........... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. RCFD 3838 0 23.
24. Common stock............................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves.................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments........ RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27).......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995........................................................... RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Exhibit 25-c
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
KCPL Financing II
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Trust Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between KCPL Financing II and The First National Bank
of Chicago, the undersigned, in accordance with Section 321(b)
of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations,
may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1).............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing.................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing.................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase.......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 14,120 15.a.
b. Trading Liabilities..................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less.............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year........... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases..................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding.... RCFD 2920 626,690 18.
19. Subordinated notes and debentures.......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)..................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus........... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. RCFD 3838 0 23.
24. Common stock............................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves.................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments........ RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27).......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995............................................................ RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
Kansas City Power & Light Company
(Exact name of obligor as specified in its charter)
Missouri 44-0308720
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Securities Guarantee
for
KCPL Financing II
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between Kansas City Power & Light Company. and The
First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1).............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing.................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing.................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase.......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 14,120 15.a.
b. Trading Liabilities..................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less.............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year........... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases..................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding.... RCFD 2920 626,690 18.
19. Subordinated notes and debentures.......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)..................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus........... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. RCFD 3838 0 23.
24. Common stock............................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves.................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments........ RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27).......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995............................................................ RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
Exhibit 25-d
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
KCPL Financing III
(Exact name of obligor as specified in its charter)
Delaware (To be applied for)
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Trust Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between KCPL Financing III and The First National Bank
of Chicago, the undersigned, in accordance with Section 321(b)
of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations,
may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1).............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing.................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing.................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase.......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 14,120 15.a.
b. Trading Liabilities..................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less.............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year........... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases..................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding.... RCFD 2920 626,690 18.
19. Subordinated notes and debentures.......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)..................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus........... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. RCFD 3838 0 23.
24. Common stock............................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves.................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments........ RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27).......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995............................................................ RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
____________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification
number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
____________
Kansas City Power & Light Company
(Exact name of obligor as specified in its charter)
Missouri 44-0308720
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1201 Walnut
Kansas City, Missouri 64106-2124
(Address of principal executive offices) (Zip Code)
Preferred Securities Guarantee
for
KCPL Financing III
(Title of Indenture Securities)
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and
existing under the laws of the United States of America, has
duly caused this Statement of Eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized,
all in the City of Chicago and the State of Illinois, on
this 12th day of December, 1996.
The First National Bank of Chicago,
Trustee
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference
to Exhibits bearing identical numbers in Item 16 of the Form
T-1 of The First National Bank of Chicago, filed as Exhibit
25.1 to the Registration Statement on Form S-3 of
SunAmerica, Inc., filed with the Securities and Exchange
Commission on October 25, 1996 (Registration No. 333-14201).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 12, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an
indenture between Kansas City Power & Light Company. and The
First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By /s/ John R. Prendiville
John R. Prendiville
Vice President
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1996
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
C400 <-
Dollar Amounts in ____ ___
Thousands RCFD BIL MIL THOU
_________________ ____ ____________
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)................ 0081 4,041,784 1.a.
b. Interest-bearing balances(2)......................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)......... 1773 3,173,481 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................... 0276 3,505,874 3.a.
b. Securities purchased under agreements to resell...................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses............................ RCFD 3123 418,851 4.b.
c. LESS: Allocated transfer risk reserve................................ RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)................................. 2125 22,417,107 4.d.
5. Assets held in trading accounts......................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)................ 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)............................ 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).......................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding............ 2155 626,690 9.
10. Intangible assets (from Schedule RC-M).................................. 2143 310,246 10.
11. Other assets (from Schedule RC-F)....................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)................................ 2170 49,956,726 12.
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
_________
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
_________________ ____________
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)............................. RCON 2200 22,369,341 13.a.
(1) Noninterest-bearing(1).............................. RCON 6631 9,726,987 13.a.(1)
(2) Interest-bearing.................................... RCON 6636 12,642,354 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)...................... RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing................................. RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing.................................... RCFN 6636 9,689,540 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased................................. RCFD 0278 884,553 14.a.
b. Securities sold under agreements to repurchase.......... RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury................ RCON 2840 14,120 15.a.
b. Trading Liabilities..................................... RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less.............. RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year........... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases..................................................... RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding.... RCFD 2920 626,690 18.
19. Subordinated notes and debentures.......................... RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)..................... RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20)............. RCFD 2948 46,049,924 21.
22. Limited-Life preferred stock and related surplus........... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.............. RCFD 3838 0 23.
24. Common stock............................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)... RCFD 3839 2,925,894 25.
26. a. Undivided profits and capital reserves.................. RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-
sale securities......................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments........ RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27).......... RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)...................... RCFD 3300 49,956,726 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1995..................................................... RCFD 6724...... N/A M.1.
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
____________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
