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Exhibit 4.2
WESTAR ENERGY,
INC.
TO
BNY MIDWEST TRUST
COMPANY
as Trustee
(as Successor
to
HARRIS TRUST AND SAVINGS
BANK)
THIRTY-SEVENTH
SUPPLEMENTAL INDENTURE
Dated as of June 17,
2004
First Mortgage Bonds, 6.00%
Series Due 2014
-i-
TABLE OF CONTENTS
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Page
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Parties
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1 |
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Recitals
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1 |
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Granting Clause
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4 |
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Habendum
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Exceptions and Reservations
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ARTICLE I |
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Description of Bonds of the |
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2014 Series |
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SECTION 1.
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General
Description of Bonds of the 2014 Series |
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7 |
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SECTION 2.
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Denominations of Bonds of the 2014 Series and privilege of
exchange |
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SECTION 3.
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Form of
Bonds of the 2014 Series |
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SECTION 4.
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Execution
and Form of Temporary Bonds of the 2014 Series |
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ARTICLE II |
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Issue of Bonds of the 2014 Series |
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SECTION 1.
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Limitations as to Principal Amount |
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13 |
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SECTION 2.
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Execution
and Delivery of Bonds of the 2014 Series |
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13 |
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Note: The Table of Contents is not part of this Supplemental
Indenture and should not be considered as such. It is included only
for purposes of convenience. |
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Page
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ARTICLE III |
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Redemption and Substitution |
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SECTION 1.
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Optional
Redemption |
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13 |
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SECTION 2
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Substitution of Bonds of the 2014 Series |
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15 |
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ARTICLE IV |
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Additional Covenants |
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SECTION 1.
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Title to
mortgaged property |
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16 |
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SECTION 2.
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To retire certain portions of Bonds upon
release of all or substantially all of the electric
properties
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16 |
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ARTICLE V |
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| AMENDMENTS AND RESERVATIONS OF RIGHTS
TO AMEND THE ORIGINAL INDENTURE |
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SECTION 1.
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So long
as bonds issued prior to January 1, 1997 remain
outstanding: |
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Bonds issuable on basis only of 60% of
net bondable value of property additions not subject to an unfunded
prior lien
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17 |
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Amendment of definition of net bondable
value of property additions not subject to an unfunded prior
lien
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17 |
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Monies deposited with Trustee under
Section 5(a) of Article III of the Original Indenture may not be
withdrawn in an amount in excess of 60% of net bondable value of
property additions not subject to an unfunded prior lien,
notwithstanding provisions of Section 3(a) of Article VIII of the
Original Indenture
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Amendment of definition of net bondable
value of property additions subject to an unfunded prior
lien
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18 |
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Amendment of covenants in Sections 14
and 16 of Article IV and Section 1 of Article XII of the Original
Indenture with respect to acquisition of property subject to an
unfunded prior lien
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Definitions: minimum charge for
depreciation; net earnings available for interest, depreciation and
property retirement; net earnings of another corporation available
for interest, depreciation and property retirement
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20 |
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Page
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SECTION 2.
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Facsimile
Signatures |
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SECTION 3.
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Reservation of Right to Amend Article VII |
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21 |
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SECTION 4.
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Reservation of Right to Delete certain requirements and
conditions |
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SECTION 5.
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Issuance
of Variable Rate Bonds |
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SECTION 6.
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Substitution of bonds |
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SECTION 7.
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Addition
of a governing law clause |
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25 |
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SECTION 8.
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Event of
default for failure to pay final judgments in excess of
$100,000 |
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SECTION 9.
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Net
earnings test in connection with property acquisitions |
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SECTION 10.
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Addition
of Nuclear Fuel |
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SECTION 11
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Modernization of the Original Indenture |
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ARTICLE VI |
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Miscellaneous Provisions |
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SECTION 1.
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Acceptance of Trust |
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SECTION 2.
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Responsibility and Duty of Trustee |
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SECTION 3.
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Parties
to include successors and assigns |
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SECTION 4.
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Benefits
restricted to parties and to holders of Bonds and
coupons |
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SECTION 5.
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Execution
in counterparts |
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27 |
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SECTION 6.
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Titles of
Articles not part of the Thirty-Seventh Supplemental
Indenture |
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27 |
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| TESTIMONIUM |
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S-1 |
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| SIGNATURES AND SEALS |
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S-1 |
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| ACKNOWLEDGMENTS |
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S-2 |
-iv-
APPENDIX A
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Page
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DESCRIPTION OF PROPERTIES
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-v-
THIRTY-SEVENTH SUPPLEMENTAL
INDENTURE, dated as of the 17th day of June, Two Thousand and Four,
made by and between Westar Energy, Inc., formerly The Kansas Power
and Light Company, a corporation organized and existing under the
laws of the State of Kansas (hereinafter called the “
Company ”), party of the first part, and BNY Midwest
Trust Company, an Illinois trust company whose mailing address is 2
North LaSalle Street, Suite 1020, Chicago, IL 60602 (hereinafter
called the “ Trustee ”), as Trustee (as
successor to Harris Trust and Savings Bank), under the Mortgage and
Deed of Trust dated July 1, 1939, hereinafter mentioned, party of
the second part;
WHEREAS, the Company has
heretofore executed and delivered to the Trustee its Mortgage and
Deed of Trust dated July 1, 1939 (hereinafter referred to as the
“ Original Indenture ”), to provide for and to
secure the issue of First Mortgage Bonds of the Company, issuable
in series, and to declare the terms and conditions upon which the
Bonds (as defined in the Original Indenture) are to be issued
thereunder; and
WHEREAS, the Company has
heretofore executed and delivered to the Trustee Thirty-Six
Supplemental Indentures supplemental to said Original Indenture, of
which Thirty-Four provided for the issuance thereunder of series of
the Company’s First Mortgage Bonds, and there is set forth
below information with respect to such Supplemental Indentures as
have provided for the issuance of Bonds, and the principal amount
of Bonds which remain outstanding as of June 17, 2004.
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Supplemental Indenture
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Date
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Series of First
Mortgage Bonds
Provided
For
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Principal
Amount
Issued
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Principal
Amount
Outstanding
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Supplemental Indenture
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July 1, 1939
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3 1 / 2 % Series
Due 1969
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$ |
26,500,000 |
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None |
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Second Supplemental Indenture
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April 1, 1949
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2 7 / 8 % Series
Due 1979
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10,000,000 |
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None |
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Fourth Supplemental Indenture
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October 1, 1949
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2 3 / 4 % Series
Due 1979
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6,500,000 |
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None |
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Fifth Supplemental Indenture
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December 1, 1949
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2 3 / 4 % Series
Due 1984
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32,500,000 |
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None |
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Seventh Supplemental
Indenture
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December 1, 1951
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3 1 / 4 % Series
Due 1981
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5,250,000 |
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None |
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Eighth Supplemental Indenture
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May 1, 1952
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3 1 / 4 % Series
Due 1982
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4,750,000 |
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None |
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Ninth Supplemental Indenture
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October 1, 1954
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3 1 / 8 % Series
Due 1984
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8,000,000 |
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None |
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Tenth Supplemental Indenture
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September 1, 1961
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4 3 / 4 % Series
Due 1991
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13,000,000 |
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None |
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Eleventh Supplemental
Indenture
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April 1, 1969
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7 5 / 8 % Series
Due 1999
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19,000,000 |
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None |
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Supplemental Indenture
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Date
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Series of First
Mortgage Bonds
Provided
For
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Principal
Amount
Issued
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Principal
Amount
Outstanding
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Twelfth Supplemental
Indenture
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September 1, 1970
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8 3 / 4 % Series
Due 2000
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20,000,000 |
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None |
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Thirteenth Supplemental
Indenture
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February 1, 1975
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8 5 / 8 % Series
Due 2005
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35,000,000 |
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None |
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Fourteenth Supplemental
Indenture
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May 1, 1976
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8 5 / 8 % Series
Due 2006
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45,000,000 |
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None |
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Fifteenth Supplemental
Indenture
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April 1, 1977
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5.90% Pollution
Control Series
Due 2007
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32,000,000 |
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None |
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Sixteenth Supplemental
Indenture
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June 1, 1977
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8 1 / 8 % Series
Due 2007
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30,000,000 |
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None |
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Seventeenth Supplemental
Indenture
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February 1, 1978
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8 3 / 4 % Series
Due 2008
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35,000,000 |
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None |
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Eighteenth Supplemental
Indenture
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January 1, 1979
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6 3 / 4 % Pollution
Control Series
Due 2009
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45,000,000 |
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None |
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Nineteenth Supplemental
Indenture
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May 1, 1980
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8 1 / 4 % Pollution
Control Series
Due 1983
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45,000,000 |
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None |
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Twentieth Supplemental
Indenture
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November 1, 1981
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16.95% Series
Due 1988
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25,000,000 |
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None |
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Twenty-First Supplemental
Indenture
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April 1, 1982
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15% Series
Due 1992
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60,000,000 |
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None |
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Twenty-Second Supplemental
Indenture
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February 1, 1983
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9 5 / 8 % Pollution
Control Series
Due 2013
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58,500,000 |
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None |
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Twenty-Third Supplemental
Indenture
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July 1, 1986
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8 1 / 4 % Series
Due 1996
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60,000,000 |
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None |
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Twenty-Fourth Supplemental
Indenture
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March 1, 1987
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8 5 / 8 % Series
Due 2017
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50,000,000 |
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None |
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Twenty-Fifth Supplemental
Indenture
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October 15, 1988
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9.35% Series
Due 1998
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75,000,000 |
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None |
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Twenty-Sixth Supplemental
Indenture
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February 15, 1990
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8 7 / 8 % Series
Due 2000
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75,000,000 |
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None |
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Twenty-Seventh Supplemental
Indenture
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March 12, 1992
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7.46% Demand
Series
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370,000,000 |
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None |
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Twenty-Eighth Supplemental
Indenture
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July 1, 1992
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7 1 / 4 % Series
Due 1999
8 1 / 2 % Series
Due 2022
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125,000,000
125,000,000
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None
None*
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-2-
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Supplemental Indenture
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Date
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Series of First
Mortgage Bonds
Provided
For
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Principal
Amount
Issued
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Principal
Amount
Outstanding
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Twenty-Ninth Supplemental
Indenture
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August 20, 1992
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7 1 / 4 % Series
Due 2002
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100,000,000 |
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None |
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Thirtieth Supplemental
Indenture
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February 1, 1993
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6% Pollution
Control Revenue
Refunding Series
Due 2033
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58,500,000 |
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None |
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Thirty-First Supplemental
Indenture
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April 15, 1993
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7.65% Series
Due 2023
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100,000,000 |
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None* |
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Thirty-Second Supplemental
Indenture
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April 15, 1994
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7 1 / 2 % Series
Pollution Control
Revenue Refunding
Series Due
2032
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75,500,000 |
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75,500,000 |
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Thirty-Third Supplemental
Indenture
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August 11, 1997
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6 7 / 8 % Convertible
Series Due 2004
7 1 / 8 % Convertible
Series Due 2009
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370,000,000
150,000,000
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None
None
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Thirty-Fourth Supplemental
Indenture
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June 28, 2000
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9 1 / 2 % Series
Due 2003
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397,800,000 |
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None |
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Thirty-Fifth Supplemental
Indenture
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May 10, 2002
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7 7 / 8 % Series
Due 2007
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365,000,000 |
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365,000,000 |
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Thirty-Sixth Supplemental
Indenture
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June 1, 2004
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5.00% Series
Due 2033
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58,340,000 |
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58,340,000 |
| * |
Upon issuance of the Bonds of the 2014 Series pursuant to this
indenture, the 8 1
/ 2 % Series due 2022 and
the 7.65% Series due 2023 will be redeemed and will no longer be
outstanding under this indenture. |
; and
WHEREAS, the Company is
entitled at this time to have authenticated and delivered
additional bonds in substitution for refundable Bonds, upon
compliance with the provisions of Article III of the Original
Indenture, as amended; and
-3-
WHEREAS, the Company desires
by this Thirty-Seventh Supplemental Indenture (hereinafter referred
to as this “ Supplemental Indenture ”) to
supplement the Original Indenture and to provide for the creation
of a new series of bonds under the Original Indenture to be
designated “First Mortgage Bonds, 6.00% Series Due
2014” (hereinafter called “ Bonds of the 2014
Series ”); and the Original Indenture provides that
certain terms and provisions, as determined by the Board of
Directors of the Company, of the Bonds of any particular series may
be expressed in and provided by the execution of an appropriate
supplemental indenture; and
WHEREAS, the Company in the
exercise of the powers and authority conferred upon and reserved to
it under the provisions of the Original Indenture and indentures
supplemental thereto, and pursuant to appropriate resolutions of
its Board of Directors, has duly resolved and determined to make,
execute and deliver to the Trustee a supplemental indenture in the
form hereof for the purposes herein provided; and
WHEREAS, all conditions and
requirements necessary to make this Supplemental Indenture a valid,
binding and legal instrument have been done, performed and
fulfilled, and the execution and delivery hereof have been in all
respects duly authorized;
NOW, THEREFORE, THIS
INDENTURE WITNESSETH: That, in consideration of the premises and of
the mutual covenants herein contained and of the sum of One Dollar
duly paid by the Trustee to the Company at or before the time of
the execution of these presents, and of other valuable
considerations, the receipt whereof is hereby acknowledged, and in
order further to secure the payment of the principal of and
interest and premium, if any, on all Bonds at any time issued and
outstanding under the Original Indenture as amended by all
indentures supplemental thereto (hereinafter sometimes collectively
called the “ Indenture ”) according to their
tenor, purport and effect, and to declare certain terms and
conditions upon and subject to which Bonds are to be issued and
secured, the Company has executed and delivered this Supplemental
Indenture, and by these presents grants, bargains, sells, warrants,
aliens, releases, conveys, assigns, transfers, mortgages, pledges,
sets over and ratifies and confirms unto BNY Midwest Trust Company,
as Trustee, and to its successors in trust under the Indenture
forever, all and singular the following described properties (in
addition to all other properties heretofore specifically subjected
to the lien of the Indenture and not heretofore released from the
lien thereof), that is to say:
FIRST.
All and singular the rents,
real estate, chattels real, easements, servitudes, and leaseholds
of the Company, or which, subject to the provisions of Article XII
of the Original Indenture, the Company may hereafter acquire,
including, among other things, the property described in Appendix A
hereto under the caption “First”, which description is
hereby incorporated herein by reference and made a part hereof as
if fully set forth herein, together with all improvements of any
type located thereon.
Also all power houses,
plants, buildings and other structures, dams, dam sites,
substations, heating plants, gas works, holders and tanks,
compressor stations, gasoline extraction plants, together with all
and singular the electric heating, gas and mechanical appliances
appurtenant thereto
-4-
of every nature whatsoever, now owned by
the Company or which it may hereafter acquire, including all and
singular the machinery, engines, boilers, furnaces, generators,
dynamos, turbines and motors, and all and every character of
mechanical appliance for generating or producing electricity,
steam, water, gas and other agencies for light, heat, cold or power
or any other purpose whatsoever.
SECOND.
Also all transmission and
distribution systems used for the transmission and distribution of
electricity, steam, water, gas and other agencies for light, heat,
cold or power, or any other purpose whatever, whether underground
or overhead or on the surface or otherwise of the Company, or
which, subject to the provisions of Article XII of the Original
Indenture, the Company may hereafter acquire, including all poles,
posts, wires, cables, conduits, mains, pipes, tubes, drains,
furnaces, switchboards, transformers, insulators, meters, lamps,
fuses, junction boxes, water pumping stations, regulator stations,
town border metering stations and other electric, steam, water and
gas fixtures and apparatus.
THIRD.
Also all franchises and all
permits, ordinances, easements, privileges and immunities and
licenses, all rights to construct, maintain and operate overhead,
surface and underground systems for the distribution and
transmission of electricity, gas, water or steam for the supply to
itself or others of light, heat, cold or power or any other purpose
whatsoever, all rights-of-way, all waters, water rights and flowage
rights and all grants and consents, now owned by the Company or,
subject to the provisions of Article XII of the Original Indenture,
which it may hereafter acquire.
Also all inventions, patent
rights and licenses of every kind now owned by the Company or,
subject to the provisions of Article XII of the Original Indenture,
which it may hereafter acquire.
FOURTH.
Also, subject to the
provisions of Article XII of the Original Indenture, all other
property, real, personal and mixed (except as therein or herein
expressly excepted) of every nature and kind and wheresoever
situated now or hereafter possessed by or belonging to the Company,
or to which it is now, or may at any time hereafter be, in any
manner entitled at law or in equity.
FIFTH.
Also any and all property of
any kind or description which may from time to time after the date
of the Original Indenture by delivery or by writing of any kind be
conveyed, mortgaged, pledged, assigned or transferred to the
Trustee by the Company or by any person, copartnership or
corporation, with the consent of the Company or otherwise, and
accepted by the Trustee, to be held as part of the mortgaged
property; and the Trustee is hereby authorized to accept and
receive any such property and any such conveyance, mortgage,
pledge, assignment and transfer, as and for additional security
hereunder, and to hold and apply any and all such property subject
to and in accordance with the terms and provisions upon which such
conveyance, mortgage, pledge, assignment or transfer shall be
made.
-5-
SIXTH.
Together with all and
singular, the tenements, hereditaments and appurtenances belonging
or in any wise appertaining to the aforesaid property or any part
thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income, products and
profits thereof, and all the estate, right, title, interest and
claim whatsoever, at law and in equity, which the Company now has
or may hereafter acquire in and to the aforesaid property and
franchises and every part and parcel thereof.
EXPRESSLY EXCEPTING AND
EXCLUDING, HOWEVER, all properties of the character excepted from
the lien of the Original Indenture.
TO HAVE AND TO HOLD all said
properties, real, personal and mixed, mortgaged, pledged and
conveyed by the Company as aforesaid, or intended so to be, unto
the Trustee and its successors and assigns forever;
SUBJECT, HOWEVER, to the
exceptions and reservations hereinabove referred to, to existing
leases other than leases which by their terms are subordinate to
the lien of the Indenture, to existing liens upon rights-of-way for
transmission or distribution line purposes, as defined in Article I
of the Original Indenture; and any extensions thereof, and subject
to existing easements for streets, alleys, highways, rights-of-way
and railroad purposes over, upon and across certain of the property
herein before described and subject also to all the terms,
conditions, agreements, covenants, exceptions and reservations
expressed or provided in the deeds or other instruments
respectively under and by virtue of which the Company acquired the
properties hereinabove described and to undetermined liens and
charges, if any, incidental to construction or other existing
permitted liens as defined in Article I of the Original
Indenture;
IN TRUST, NEVERTHELESS, upon
the terms and trusts in the Original Indenture, and the indentures
supplemental thereto, including this Supplemental Indenture, set
forth, for the equal and proportionate benefit and security of all
present and future holders of the Bonds and coupons issued and to
be issued thereunder, or any of them, without preference of any of
said Bonds and coupons of any particular series over the Bonds and
coupons of any other series by reason of priority in the time of
issue, sale or negotiation thereof, or by reason of the purpose of
issue or otherwise howsoever, except as otherwise provided in
Section 2 of Article IV of the Original Indenture.
-6-
AND IT IS HEREBY COVENANTED,
DECLARED AND AGREED, by and between the parties hereto for the
benefit of those who shall hold the Bonds and coupons, or any of
them, to the be issued under the Indenture as follows:
ARTICLE I
DESCRIPTION OF BONDS OF
THE
2014 SERIES
SECTION 1. The Bonds of the
2014 Series to be executed, authenticated and delivered under and
secured by the Original Indenture shall be designated as
“First Mortgage Bonds, 6.00% Series Due 2014” of the
Company. The Bonds of the 2014 Series shall be executed,
authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, all of the terms,
conditions and covenants of the Indenture and subject to all the
terms, conditions and covenants of this Supplemental
Indenture.
Bonds of the 2014 Series
shall mature July 1, 2014 and shall bear interest at the rate of
six percent (6.00%) per annum payable semi-annually on the first
day of January and July in each year, commencing January 1, 2005.
Every Bond of the 2014 Series shall be dated the date of
authentication except that, notwithstanding the provisions of
Section 6 of Article II of the Original Indenture, if any Bond of
the 2014 Series shall be authenticated at any time subsequent to
the record date (as hereinafter in this Section defined) for any
interest payment date but prior to the day following such interest
payment date, it shall be dated as of the day following such
interest payment date, provided, however, if at the time of
authentication of any Bond of the 2014 Series interest shall be in
default on any Bonds of the 2014 Series, such Bond shall be dated
as of the day following the interest payment date to which interest
has previously been paid in full or made available for payment in
full on outstanding Bonds of the 2014 Series, as the case may be,
or, if no interest has been paid or made available for payment, as
of the date of initial authentication and delivery of such Bond.
Every Bond of the 2014 Series shall bear interest from the January
1, or July 1, next preceding the date thereof, unless such Bond
shall be dated prior to January 1, 2005, in which case it shall
bear interest from June 17, 2004.
The person in whose name any
Bond of the 2014 Series is registered at the close of business on
any record date with regard to any interest payment date shall be
entitled to receive the interest payable thereon on such interest
payment date notwithstanding the cancellation of such Bond upon the
transfer or exchange thereof subsequent to such record date and
prior to the day following such interest payment date, unless the
Company shall default in the payment of the interest due on such
interest payment date, in which case such defaulted interest shall
be paid to the person in whose name such Bond is registered on the
date of payment of such defaulted interest. The term “
record date ” as used in this Section with regard to
any January 1 interest payment date shall mean the close of
business on the next preceding December 15 and with regard to any
July 1 interest payment date shall mean the close of business on
the next preceding June 15, or if such day is not a business day,
the business day next preceding such day. The Bonds of the 2014
Series shall be payable as to principal, premium, if any, and
interest, in any coin or currency of the United States of America
which at the time of payment is legal tender for public and private
debts, at the agency of the Company in the City of Chicago,
Illinois, or at the option of the holder thereof at the agency of
the Company in the Borough of Manhattan, The City of New York,
provided that at the option of the Company interest may be paid by
check mailed to the holder at such holder’s registered
address.
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SECTION 2. The Bonds of the
2014 Series shall be registered bonds without coupons of the
denominations of $1,000 and of any multiples of $1,000, numbered
consecutively from R-1. Bonds of the 2014 Series may each be
interchanged for other bonds within the same Series in authorized
denominations and in the same aggregate principal amounts, without
charge, except for any tax or governmental charge imposed in
connection with such interchange.
SECTION 3. The Bonds of the
2014 Series, and the Trustee’s Certificate with respect
thereto, shall be substantially in the following forms,
respectively:
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[FORM OF LEGEND FOR GLOBAL
SECURITY]
THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY (55 WATER
STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY
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
[FORM OF BOND OF THE 2014
SERIES]
CUSIP
WESTAR ENERGY,
INC.
(Incorporated under the laws
of the State of Kansas)
FIRST MORTGAGE BOND, 6.00%
SERIES DUE 2014
DUE July 1, 2014
WESTAR ENERGY, INC., a
corporation organized and existing under the laws of the State of
Kansas (hereinafter called the “ Company ”,
which term shall include any successor corporation as defined in
the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, on the 1st day of July, 2014, the sum of
Dollars in any coin or currency of the United States of America
which at the time of payment is legal tender for public and private
debts, and to pay interest thereon in like coin or currency from
the first day of January or July next preceding the date of this
Bond (the “ Bonds ”) unless this Bond shall be
dated prior to
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January 1, 2005, in which case from June
17, 2004, at the rate of six percent (6.00%) per annum, payable
semiannually, on the first days of January and July in each year,
commencing January 1, 2005, until maturity, or, if this Bond shall
be duly called for redemption or submitted for repurchase, until
the redemption date or repurchase date, as the case may be, or, if
the Company shall default in the payment of the principal or
premium hereof, until the Company’s obligation with respect
to the payment of such principal or premium shall be discharged as
provided in the Indenture hereinafter mentioned. The interest
payable on any January 1 interest payment date as aforesaid will be
paid to the person in whose name this Bond is registered at the
close of business on the next preceding December 15 and with
respect to any July 1 interest payment date shall mean the close of
business on the next preceding June 15, or if such day is not a
business day, the business day next preceding such day (the “
record date ”), unless the Company shall default in
the payment of the interest due on such interest payment date, in
which case such defaulted interest shall be paid to the person in
whose name this Bond is registered on the date of payment of such
defaulted interest. Principal of, premium, if any, and interest on,
this Bond are payable at the agency of the Company in the City of
Chicago, Illinois in immediately available funds, or at the option
of the holder thereof at the agency of the Company in the Borough
of Manhattan, The City of New York, provided that at the option of
the Company interest may be paid by check mailed to the holder at
such holder’s registered address.
This Bond is one of a duly
authorized issue of Bonds of the Company (herein called the “
Bonds ”), in unlimited aggregate principal amount, of
the series hereinafter specified, all issued and to be issued under
and equally secured by a Mortgage and Deed of Trust, dated July 1,
1939, executed by the Company to BNY Midwest Trust Company (herein
called the “ Trustee ”), as Trustee (as
successor to Harris Trust and Savings Bank), as amended by the
indentures supplemental thereto including the thirty-seventh
indenture supplemental thereto dated as of June 17, 2004 (herein
called the “ Supplemental Indenture ”), between
the Company and the Trustee (said Mortgage and Deed of Trust, as so
amended, being herein called the “ Indenture ”),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the properties
mortgaged and pledged, the nature and extent of the security, the
rights of the bearers or registered owners of the Bonds and of the
Trustee in respect thereto, and the terms and conditions upon which
the Bonds are, and are to be, secured. The Bonds may be issued in
series, for various principal sums, may mature at different times,
may bear interest at different rates and may otherwise vary as in
the Indenture provided. This Bond is one of a series designated as
the “First Mortgage Bonds, 6.00% Series Due 2014”
(herein called “ Bonds of the 2014 Series ”) of
the Company, issued under and secured by the Indenture executed by
the Company to the Trustee.
To the extent permitted by,
and as provided in the Indenture, modifications or alterations of
the Indenture or of any indenture supplemental thereto, and of the
rights and obligations of the Company and of the holders of the
Bonds and coupons, may be made with the consent of the Company by
an affirmative vote of not less than 60% in principal amount of the
Bonds entitled to vote then outstanding, at a meeting of
Bondholders called and held as provided in the Indenture, and by an
affirmative vote of not less than 60% in principal amount of the
Bonds of any series entitled to vote then outstanding and affected
by such modification or alteration, in case one or more but less
than all of the series of Bonds then outstanding under the
Indenture are so affected. No modification or alteration shall be
made which will affect the terms of payment of the principal of or
premium, if
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any, or interest on, this Bond, which
are unconditional. The Company has reserved the right to make
certain amendments to the Indenture, without any consent or other
action by holders of the Bonds of this series (i) to the extent
necessary from time to time to qualify the Indenture under the
Trust Indenture Act of 1939, (ii) to delete the requirement that
the Company meet a net earnings test as a condition to
authenticating additional Bonds or merging into another company,
(iii) to make certain other amendments which make the provisions
for the release of mortgaged property less restrictive and (iv) to
make certain other amendments, all as more fully provided in the
Indenture and in the Supplemental Indenture. In addition, once all
Bonds issued prior to January 1, 1997 are no longer outstanding,
the Company will be permitted to issue additional Bonds in an
amount equal to 70% of the value of net bondable property additions
not subject to an unfunded prior lien, as provided in the Original
Indenture.
This Bond is subject to
redemption at any time and from time to time prior to maturity at
the option of the Company at a price determined as provided in the
Supplemental Indenture. Such redemption in every case shall be
effected upon notice given by: (1) first class mail, postage
prepaid, at least thirty days and not more than sixty days prior to
the redemption date, to the registered owners of such Bonds at
their addresses as the same shall appear on the transfer register
of the Company; and (2) stating, among other things, the redemption
price and date, in each case, subject to the conditions of and as
more fully set forth in the Indenture.
In case an event of default,
as defined in the Indenture, shall occur, the principal of all of
the Bonds at any such time outstanding under the Indenture may be
declared or may become due and payable, upon the conditions and in
the manner and with the effect provided in the Indenture. The
Indenture provides that such declaration may in certain events be
waived by the holders of a majority in principal amount of the
Bonds outstanding.
This Bond is transferable by
the registered owner hereof, in person or by duly authorized
attorney, on the books of the Company to be kept for that purpose
at the agency of the Company in the City of Chicago, Illinois, and
at the agency of the Company in the Borough of Manhattan, The City
of New York, upon surrender and cancellation of this Bond and on
presentation of a duly executed written instrument of transfer, and
thereupon a new registered Bond or Bonds of the same series, of the
same aggregate principal amount and in authorized denominations
will be issued to the transferee or transferees in exchange
herefor; and this Bond, with or without others of like form and
series, may in like manner be exchanged for one or more new
registered Bonds of the same series of other authorized
denominations but of the same aggregate principal amount; all upon
payment of the charges and subject to the terms and conditions set
forth in the Indenture.
The Company or
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