ex10_1.htm


     

     

     

    


     

    


     

    


     

    EXHIBIT
10.1

     

    


    
      
        

        

      

      


       

      


    

    THE
EMPIRE DISTRICT ELECTRIC COMPANY

     

    TO

     

    THE
BANK OF NEW YORK TRUST COMPANY, N.A.

     

    AND

     

    UMB
BANK & TRUST, N.A.

     

    Trustees

     

    Thirty-Second
Supplemental Indenture

     

    Dated
as of March 11, 2008

     

     (Supplemental
to Indenture dated as of September 1, 1944)

     

    For
the Purpose of Amending Section 4.11

     

    Of
the Indenture Dated as of September 1, 1944

     

    
      


    

     

    
      

      

    

     

    
 

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    TABLE OF CONTENTS1

     

     

    

      
        	 
      	
                PAGE

              


      

      


      
        	
                Parties

              	
                1

              
	
                Recitals

              	
                1

              


      

       

    

     

    ARTICLE
I


     

    MODIFICATION
OF ORIGINAL INDENTURE

     

    
      	
              SECTION
      1.

            	
              Amendment
      of Section 4.11 of the Indenture

            	
              3

            
	 
      	 
      	 
      
	
              SECTION
      2.

            	
              Each
      Applicable Supplemental Indenture shall be construed to continue Section
      4.11 as amended

            	
              3

            


    

     

    ARTICLE
II

     

    MISCELLANEOUS
PROVISIONS

     

    
      	
              Section
      1.

            	
              Original
      Indenture, as supplemented and amended, ratified and
    confirmed

            	
              3

            
	
              Section
      2.

            	
              Bonds
      delivered in exchange or substitution need not bear
    notation

            	
              3

            
	
              Section
      3.

            	
              This
      Supplemental Indenture may be executed in counterparts

            	
              3

            
	
              Section
      4.

            	
              Rights
      conferred only on holder of bonds, Company and Trustees

            	
              3

            
	
              Section
      5.

            	
              The
      recitals and statements are deemed to be those of the Company and not of
      the Trustee.

            	
              3

            


    

    


     

    
      	
              TESTIMONIUM

            	
              4

            
	
              SIGNATURES
      AND SEALS

            	
              4

            
	
              ACKNOWLEDGMENTS

            	
              7

            


    

    

      

    

     

      
        	
                1

              	
                This
      Table of Contents is not a part of the annexed Supplemental Indenture as
      executed.

              


      

       

    


    
      
         


      

      
        -i- 


        
          

        

      

      
         


      

    


    THIRTY-SECOND SUPPLEMENTAL
INDENTURE, dated as of March 11, 2008, between The Empire District
Electric Company, a corporation organized and existing under the laws of the
State of Kansas (hereinafter called the “Company”), party of the first part, and
The Bank of New York Trust Company, N.A., a national banking association
organized under the laws of the United States of America and located in the
State of California with a trust office at 2 N. LaSalle Street, Suite 1020, in
the City of Chicago, Illinois, and UMB Bank & Trust, N.A., a national
banking association organized and existing under the laws of the United States
of America and having its principal corporate trust office in the City of St.
Louis, Missouri (hereinafter sometimes called respectively the “Principal
Trustee” and the “Missouri Trustee” and together the “Trustees” and each thereof
a “Trustee”), as Trustees, parties of the second part.

     

    WHEREAS
the Company has heretofore executed and delivered to the Trustees its Indenture
of Mortgage and Deed of Trust, dated as of September 1, 1944 (hereinafter
sometimes referred to as the “Original Indenture”), to secure an issue of First
Mortgage Bonds of the Company, issuable in series; and

     

    WHEREAS
the Company has heretofore executed and delivered to the Trustees thirty-one
Supplemental Indentures supplemental to the Original Indenture as
follows:

     

    
      	
                                              
      Title

            	
              Dated

            


    

    


    
      	
              First
      Supplemental Indenture

            	
              as
      of June 1, 1946

            
	
              Second
      Supplemental Indenture

            	
              as
      of January 1, 1948

            
	
              Third
      Supplemental Indenture

            	
              as
      of December 1, 1950

            
	
              Fourth
      Supplemental Indenture

            	
              as
      of December 1, 1954

            
	
              Fifth
      Supplemental Indenture

            	
              as
      of June 1, 1957

            
	
              Sixth
      Supplemental Indenture

            	
              as
      of February 1, 1968

            
	
              Seventh
      Supplemental Indenture

            	
              as
      of April 1, 1969

            
	
              Eighth
      Supplemental Indenture

            	
              as
      of May 1, 1970

            
	
              Ninth
      Supplemental Indenture

            	
              as
      of July 1, 1976

            
	
              Tenth
      Supplemental Indenture

            	
              as
      of November 1, 1977

            
	
              Eleventh
      Supplemental Indenture

            	
              as
      of August 1, 1978

            
	
              Twelfth
      Supplemental Indenture

            	
              as
      of December 1, 1978

            
	
              Thirteenth
      Supplemental Indenture

            	
              as
      of November 1, 1979

            
	
              Fourteenth
      Supplemental Indenture

            	
              as
      of September 15, 1983

            
	
              Fifteenth
      Supplemental Indenture

            	
              as
      of October 1, 1988

            
	
              Sixteenth
      Supplemental Indenture

            	
              as
      of November 1, 1989

            
	
              Seventeenth
      Supplemental Indenture

            	
              as
      of December 1, 1990

            
	
              Eighteenth
      Supplemental Indenture

            	
              as
      of July 1, 1992

            
	
              Nineteenth
      Supplemental Indenture

            	
              as
      of May 1, 1993

            
	
              Twentieth
      Supplemental Indenture

            	
              as
      of June 1, 1993

            
	
              Twenty-First
      Supplemental Indenture

            	
              as
      of October 1, 1993

            
	
              Twenty-Second
      Supplemental Indenture

            	
              as
      of November 1, 1993

            
	
              Twenty-Third
      Supplemental Indenture

            	
              as
      of November 1, 1993

            
	
              Twenty-Fourth
      Supplemental Indenture

            	
              as
      of March 1, 1994

            
	
              Twenty-Fifth
      Supplemental Indenture

            	
              as
      of November 1, 1994

            
	
              Twenty-Sixth
      Supplemental Indenture

            	
              as
      of April 1, 1995

            
	
              Twenty-Seventh
      Supplemental Indenture

            	
              as
      of June 1, 1995

            
	
              Twenty-Eighth
      Supplemental Indenture

            	
              as
      of December 1, 1996

            
	
              Twenty-Ninth
      Supplemental Indenture

            	
              as
      of April 1, 1998

            
	
              Thirtieth
      Supplemental Indenture

            	
              as
      of July 1, 1999

            


    

    


     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              Thirty
      First Supplemental Indenture

            	
              as
      of March 27, 2007

            


    

    


    some for
the purpose of creating an additional series of bonds and of conveying
additional property of the Company, and some for the purpose of modifying or
amending provisions of the Original Indenture (the Original Indenture, all said
Supplemental Indentures (other than the Thirtieth Supplemental Indenture, which
did not become effective) and this Supplemental Indenture are herein
collectively called the “Indenture”); and

     

    WHEREAS
the only Bonds outstanding as of the date hereof were issued pursuant to the
Twenty-Second, Twenty-Third, Twenty-Fifth, Twenty-Eighth, Twenty-Ninth and
Thirty-First Supplemental Indentures (collectively, the “Applicable Supplemental
Indentures”), under which the Bonds of the 5.30% Pollution Control Series due
2013, the 5.20% Pollution Control Series due 2013, the 81⁄8% Series due 2009, the 7.20%
Series due 2016, the 61⁄2%
Series due 2010 and the 57⁄8% Series due 2037,
respectively; and

     

    WHEREAS
in each of the Applicable Supplemental Indentures, the Company agreed that the
covenant set forth in Section 4.11 of the Original Indenture would continue in
effect for so long as any Bonds of the particular series issued under such
Applicable Supplemental Indenture were outstanding; and

     

    WHEREAS
pursuant to Article 15
of the Original Indenture and in accordance with the provisions, terms and
conditions thereof, the modification of the Indenture hereinbelow set forth has
been duly made, the same having been made by the written consent of the holders
of at least 60% in aggregate principal amount of the Bonds entitled to consent
with respect to such modification, which modification was duly approved by the
Company as evidenced by a certified resolution of the Board of Directors filed
with the Principal Trustee; and

     

    WHEREAS
Section 14.01 of the
Original Indenture provides that the Company and the Trustees may enter into
indentures supplemental to the Original Indenture, which thereafter shall form a
part thereof, to give effect to actions taken by bondholders pursuant to the
provisions of Article
15 of the Original Indenture, and Sections 15.09 and 15.10 of the Original
Indenture provide that instruments supplemental to the Original Indenture
embodying any modifications or alterations of the Indenture made by written
consent of bondholders may be executed by the Trustees and the Company;
and

     

    WHEREAS
the consent of at least 60% of the bondholders is sufficient to enact the
modifications contained herein; and

     

    WHEREAS
the Company and the Trustees desire to execute this Supplemental Indenture
embodying the modifications of the Indenture made and approved as aforesaid;
and

     

    WHEREAS
the Board of Directors of the Company has authorized the Company to enter into
this Thirty-Second Supplemental Indenture (herein sometimes referred to as “this
Thirty-Second Supplemental Indenture” or “this Supplemental Indenture”) for the
purpose of embodying the modification of the Indenture made and approved as
aforesaid; and

     

    WHEREAS
the Company represents that all acts and things necessary have happened, been
done, and been performed, to make this Supplemental Indenture a valid and
binding instrument, in accordance with its terms;

     

    NOW,
THEREFORE, THIS THIRTY-SECOND SUPPLEMENTAL INDENTURE WITNESSETH: That The Empire
District Electric Company, the Company herein named, in considera-

     


    
      
         


      

      
        -2- 


        
          

        

      

      
         


      

    


    tion of
the premises and of One Dollar ($1.00) to it duly paid by the Trustees at or
before the ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, the Company and the Trustees hereby agree as
follows.

     

    ARTICLE
I


     

    MODIFICATION
OF INDENTURE

     

    Section
1. Section
4.11 of the Indenture is hereby amended so as to add the following
language:  “the sum of (1) $10.75 million plus (2)” after the clause
“if, as a result thereof, the cumulative aggregate amount of such dividends,
distributions and purchases exceeds” in the first sentence thereof.

     

    Section
2. Each of
the Applicable Supplemental Indentures shall be construed to continue in effect
the covenant set forth in Section 4.11 of the Original Indenture as amended
hereby.

     

    ARTICLE
II


     

    MISCELLANEOUS
PROVISIONS

     

    Section
1. The
Original Indenture as heretofore and hereby supplemented and amended is in all
respects ratified and confirmed; and the Original Indenture, this Supplemental
Indenture and all other indentures supplemental to the Original Indenture shall
be read, taken and construed as one and the same instrument.  Neither
the execution of this Supplemental Indenture nor anything herein contained shall
be construed to impair the lien of the Original Indenture as heretofore
supplemented on any of the property subject thereto, and such lien shall remain
in full force and effect as security for all bonds now outstanding or hereafter
issued under the Indenture.  All terms defined in Article 1 of the Original
Indenture, as heretofore supplemented, for all purposes of this Supplemental
Indenture, shall have the meanings therein specified, unless the context
otherwise requires.

     

    Section
2. Bonds
authenticated and delivered after the date hereof in exchange or substitution
for Bonds of a series outstanding on the date hereof need not bear a notation of
the amendment and modification of the Indenture provided for
herein.

     

    Section
3. This
Supplemental Indenture may be simultaneously executed in any number of
counterparts, and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument

     

    Section
4. Nothing
in this Supplemental Indenture contained, shall, or shall be construed to,
confer upon any person other than a holder of bonds issued under the Indenture,
the Company and the Trustees any right or interest to avail himself of any
benefit under any provision of the Indenture, as heretofore supplemented and
amended, or of this Supplemental Indenture.

     

    Section
5. The
recitals and statements herein are deemed to be those of the Company and not of
the Trustee (other than the due authorization and execution by
Trustee).

     


    
      
         


      

      
        -3- 


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, The Empire District Electric Company, party of the first part,
has caused its corporate name to be hereunto affixed and this instrument to be
signed by its President or a Vice President, and its corporate seal to be
hereunto affixed and attested by its Secretary or an Assistant Secretary for and
in its behalf; and The Bank of New York Trust Company, N.A. and UMB Bank &
Trust, N.A., parties of the second part, have each caused its corporate name to
be hereunto affixed, and this instrument to be signed by a Vice President or an
Assistant Vice President and its corporate seal to be hereunto affixed and
attested by its Secretary, a Vice President, an Assistant Secretary or an
Assistant Vice President for and in its behalf, all as of the day and year first
above written.

     

    
      	
              THE
      EMPIRE DISTRICT ELECTRIC COMPANY

            
	 
      
	 
      
	
              By  /s/ Gregory A.
      Knapp        

                    
      Name:  Gregory A. Knapp

                    
      Title:    Vice President - Finance and

                           
            Chief Financial
  Officer

            


    

    


    [Corporate
Seal]

    


    Attest:

    


    


    /s/ Janet S. Watson        

    Name:  Janet
S. Watson

    Title:    Secretary
and Treasurer

    


    Signed,
sealed and delivered by

    


    THE
EMPIRE DISTRICT ELECTRIC COMPANY

     in
the presence of:

    


    /s/ Robert W. Sager        

    Name:  Robert
W. Sager

    


    /s/ Debra S. Brill        

    Name:  Debra
S. Brill


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              THE
      BANK OF NEW YORK TRUST COMPANY, N.A.,

              as
      Trustee

            
	 
      
	 
      
	
              By  /s/ Roxane
      Ellwanger        

                    
      Name:  Roxane Ellwanger

                    
      Title:    Assistant Vice
  President

            


    

    


    [Corporate
Seal]

    


    Attest:

    


    /s/ Richard Tarnas        

    Name:  Richard
Tarnas

    Title:    Vice
President

    


    Signed,
sealed and delivered by

    THE BANK
OF NEW YORK

    TRUST
COMPANY, N.A.

    in the
presence of:

    


    /s/ Irina Bogomolny        

    Name:  Irina
Bogomolny

    


    /s/ Aleli Adao        

    Name:  Aleli
Adao


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    
      	
              UMB
      BANK & TRUST, N.A.,

              as
      Trustee

            
	 
      
	 
      
	
              By  /s/ Laura
      Roberson        

                    
      Name:  Laura Roberson

                    
      Title:    Vice
President

            


    

    


    [Corporate
Seal]

    


    Attest:

    


    /s/ Richard F.
Novosak

    Name:  Richard
F. Novosak

    Title:    Assistant
Vice President

    


    Signed,
sealed and delivered by

    UMB BANK
& TRUST, N.A.

    in the
presence of:

    


    /s/ Sandy
Battas

    Name:  Sandy
Battas, AVP

    


    /s/ Deanna
Wilson

    Name:  Deanna
Wilson, AVP

    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              State
      of Missouri

            	
              )

            
	 
      	
              )  ss.:

            
	
              County
      of Jasper

            	
              )

            


    

    


    Be It
Remembered, and I do hereby certify, that on this 11th day of March, 2008,
before me, a Notary Public in and for the County and State aforesaid, personally
appeared Gregory A. Knapp, the Vice President - Finance and Chief Financial
Officer of The Empire District Electric Company, a Kansas corporation, and Janet
S. Watson, the Secretary and Treasurer of said corporation, who are both to me
personally known, and both personally known to me to be such officers and to be
the identical persons whose names are subscribed to the foregoing instrument as
such Vice President - Finance and Chief Financial Officer and Secretary and
Treasurer, respectively, and as the persons who subscribed the name and affixed
the seal of said The Empire District Electric Company, one of the makers
thereof, to the foregoing instrument as its Vice President - Finance and Chief
Financial Officer and Secretary and Treasurer, and they each acknowledged to me
that they, being thereunto duly authorized, executed the same for the uses,
purposes and consideration therein set forth and expressed, and in the
capacities therein stated, as their free and voluntary act and deed, and as the
free and voluntary act and deed of said corporation.

     

    And the
said Gregory A. Knapp and Janet S. Watson, being each duly sworn by me,
severally deposed and said:  that they reside in City of Joplin,
Missouri; that they were at that time Vice President - Finance and Chief
Financial Officer and Secretary and Treasurer, of said corporation; that they
knew the corporate seal of said corporation, and that the seal affixed to said
instrument was such corporate seal, and was thereto affixed by said Secretary
and Treasurer, and the said instrument was signed by said Vice President -
Finance and Chief Financial Officer, in pursuance of the power and authority
granted them by the By-Laws of said corporation, and by authority of the Board
of Directors thereof.

     

    In
Testimony Whereof, I have hereunto set my hand and affixed my official and
notarial seal at my office in said County and State the day and year last above
written.

     

    My
commission expires June 27, 2009.

     

    [Notarial
Seal]

     

    
      	
              /s/ Marily Ponder        

              Marilyn
      Ponder     

              Notary
      Public

            


    

     

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              State
      of Illinois

            	
              )

            
	 
      	
              )  ss.:

            
	
              County
      of Cook

            	
              )

            


    

    


     

    Be It
Remembered, and I do hereby certify, that on the 11th day of March, 2008, before
me, a Notary Public in and for the County and State aforesaid, personally
appeared Roxane Ellwanger, Assistant Vice President of The Bank of New York
Trust Company, N.A., a national banking association organized under the laws of
the United States of America, and Richard Tarnas, Vice President of said
association, who are both to me personally known, and both personally known to
me to be such officers and to be the identical persons whose names are
subscribed to the foregoing instrument as such Assistant Vice President and Vice
President, respectively, and as the persons who subscribed the name and affixed
the seal of said The Bank of New York Trust Company, N.A., one of the makers
thereof, to the foregoing instrument as its Assistant Vice President and Vice
President, and they each acknowledged to me that they, being thereunto duly
authorized, executed the same for the uses, purposes and consideration therein
set forth and expressed, and in the capacities therein stated, as their free and
voluntary act and deed, and as the free and voluntary act and deed of said
association.

     

    And the
said Roxane Ellwanger and Richard Tarnas, being each duly sworn by me, severally
deposed and said:  that they reside in Chicago, Illinois and
Chicago, Illinois, respectively; that they were at that time respectively
Assistant Vice President and Vice President, of said association; that they knew
the corporate seal of said association, and that the seal affixed to said
instrument was such corporate seal, and was thereto affixed by said Vice
President, and the said instrument was signed by said Assistant Vice President,
in pursuance of the power and authority granted them by the By-Laws of said
association, and by authority of the Board of Directors thereof.

     

    In
Testimony Whereof, I have hereunto set my hand and affixed my official and
notarial seal at my office in said County and State the day and year last above
written.

     

    My
commission expires July 8, 2010.

     

    [Notarial
Seal]

     

    
      	
              /s/ A. Hernandez        

                    Notary
      Public

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
      	
              State
      of Missouri

            	
              )

            
	 
      	
              )  ss.:

            
	
              City
      of St. Louis

            	
              )

            


    

    


     

    Be It
Remembered, and I do hereby certify, that on this 11th day of March, 2008,
before me, a Notary Public in and for the County and State aforesaid, personally
appeared Laura Roberson, Vice President of UMB Bank & Trust, N.A., a
national banking association organized under the laws of the United States of
America, and Richard F. Novosak, Assistant Vice President of said association,
who are both to me personally known, and both personally known to me to be such
officers and to be the identical persons whose names are subscribed to the
foregoing instrument as such Vice President and Assistant Vice President,
respectively, and as the persons who subscribed the name and affixed the seal of
said UMB Bank & Trust, N.A. one of the makers thereof, to the foregoing
instrument as its Vice President and Assistant Vice President, and they each
acknowledged to me that they, being thereunto duly authorized, executed the same
for the uses, purposes and consideration therein set forth and expressed, and in
the capacities therein stated, as their free and voluntary act and deed, and as
the free and voluntary act and deed of said association.

     

    And the
said Laura Roberson and Richard F. Novosak, being each duly sworn by me,
severally deposed and said:  that they reside in St. Louis, Missouri;
that they were at that time respectively Vice President and Assistant Vice
President of said association; that they knew the corporate seal of said
association, and that the seal affixed to said instrument was such corporate
seal, and was thereto affixed by said Assistant Vice President, and the said
instrument was signed by said Vice President, in pursuance of the power and
authority granted them by the By-Laws of said association, and by authority of
the Board of Directors thereof.

     

    In
Testimony Whereof, I have hereunto set my hand and affixed my official seal at
my office in said County and State the day and year last above
written.

     

    My
commission expires August 29, 2008.

     

    [Notarial
Seal]

     

    
      	
              /s/ Annie P.
      Lewis        

              Notary
      Public