ex4cc.htm


     

    Exhibit
4(cc)

     


    TRUST
AGREEMENT

    


    This TRUST AGREEMENT, dated as of July
31, 2008 (this “Trust Agreement”), between (i) The Empire District Electric
Company, a Kansas corporation (the “Depositor”), and (ii) Wells Fargo Bank,
National Association, a national banking association, Wells Fargo Delaware Trust
Company, a Delaware limited purpose trust company, William L. Gipson, and
Gregory A. Knapp, each solely as trustee and not in its or his individual
capacity, as trustees (the “Trustees”).  The Depositor and the
Trustees hereby agree as follows:

    


    1.           The
trust created hereby (the “Trust”) shall be known as “Empire District Electric
Trust III”, in which name the Trustees, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.  The Trust is hereby established by
the Depositor and the Trustees for the purpose of (i) issuing preferred
securities ("Preferred Securities") representing undivided beneficial interests
in the assets of the Trust in exchange for cash and investing the proceeds
thereof in debentures of the Depositor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Depositor in exchange for cash and investing the proceeds
thereof in additional debentures of the Depositor and (iii) engaging in such
other activities as are necessary, convenient or incidental
thereto.

    


    2.           The
Depositor hereby assigns, transfers, conveys and sets over to the Trustees the
sum of $10.00.  The Trustees hereby acknowledge receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate.  The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor.  It is the intention of the parties
hereto that the Trust created hereby constitute a statutory trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Trust
Act”), and that this document constitutes the governing instrument of the
Trust.  The Trustees are hereby authorized and directed to execute and
file a certificate of trust in the form of exhibit A attached hereto with the
Delaware Secretary of State in accordance with the provisions of the Trust
Act.

    


    3.           The
Depositor and the Trustees will enter into an amended and restated Trust
Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Trust Securities.  Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as the Depositor directs in
order to obtain prior to such execution and delivery any licenses, consents or
approvals required by applicable law or otherwise.

    


    4.           The
Depositor and the Trustees hereby authorize and direct the Depositor, as agent
of the Trust, (i) to file with the Securities and Exchange Commission (the
“Commission”) and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-1 (the “1933 Act Registration Statement”),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the Securities Act of
1933, as amended, of the Preferred Securities and (b) a Registration Statement
on Form 8-A


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (the
“1934 Act Registration Statement”) (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an “Exchange”) and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred Securities;
and (v) to execute on behalf of the Trust that certain underwriting agreement
relating to the Preferred Securities, among the Trust, the Depositor and the
several underwriters named therein, substantially in the form included as an
exhibit to the 1933 Act Registration Statement.

    


    5.           The
number of Trustees initially shall be four (4) and thereafter the number of
Trustees shall be such number as shall be fixed from time to time by a written
instrument signed by the Depositor which may increase or decrease the number of
Trustees; provided, however, that to the extent required by the Trust Act, one
Trustee shall either be a natural person who is a resident of the State of
Delaware or, 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 Delaware law.  Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any
time.  The Trustees may resign upon thirty (30) days’ prior notice to
the Depositor.

    


    6.           (a)   The
Trustees and their officers, directors, agents and servants (collectively, the
“Fiduciary Indemnified Persons”) shall not be liable, responsible or accountable
in damages or otherwise to the Trust, the Depositor, the Trustees or any holder
of the Trust Securities (the Trust, the Depositor and any holder of the Trust
Securities being a “Covered Person”) for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by the Fiduciary Indemnified
Persons in good faith on behalf of the Trust and in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of authority
conferred on the Fiduciary Indemnified Persons by this Trust Agreement or by
law, except that the Fiduciary Indemnified Persons shall be liable for any such
loss, damage or claim incurred by reason of the Fiduciary Indemnified Persons'
gross negligence or willful misconduct with respect to such acts or
omissions.

    


    (b)   The Fiduciary
Indemnified Persons shall be fully protected 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 Fiduciary Indemnified
Persons reasonably believe 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 Trust Securities might properly be paid.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


    


    (c)   The Depositor
agrees, to the fullest extent permitted by applicable law, (i) to indemnify and
hold harmless each Fiduciary Indemnified Person from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by or asserted against the Fiduciary Indemnified Persons by
reason of the creation, operation or termination of the Trust or the
transactions contemplated by this Trust Agreement, except that no Fiduciary
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason of gross
negligence or willful misconduct with respect to such acts or omissions, and
(ii) to advance expenses (including legal fees) incurred by a Fiduciary
Indemnified Person in defending any claim, demand, action, suit or proceeding,
from time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf
of such Fiduciary Indemnified Persons to repay such amount if it shall be
determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.

    


    (d)   The provisions of
this Section shall survive the termination of this Trust Agreement or the
earlier resignation or removal of the Fiduciary Indemnified
Persons.

    


    7.           This
Trust Agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware (without regard to conflict of laws
principles).

    


    
      	
               
      

            	
              8.

            	
              This
      Trust Agreement may be executed in one or more
    counterparts.

            


    

    


    9.           The
Trust may dissolve without issuing any Trust Securities at the election of the
Depositor.  The Trust shall dissolve and this Trust Agreement shall
terminate unless the Trust issues securities within one year after the date
hereof.  Upon dissolution, the Trustees shall file a certificate of
cancellation in accordance with the Trust Act and apply the funds deposited with
them, pursuant to Section 2 above to reimburse the Trustees for any filing fees
or other expenses in connection therewith.  Any remaining funds shall,
after payment of any other expenses of the Trust, be returned to the
Depositor.

    


    


    [SIGNATURE
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    IN WITNESS WHEREOF, the parties hereto
have caused this Trust Agreement to be duly executed as of the day and year
first above written.

    


    


    
      	
              THE
      EMPIRE DISTRICT ELECTRIC COMPANY, as Depositor

            
	 
      
	 
      
	
              By:   /s/ William L.
      Gipson

            
	
              Name:
      William L. Gipson

            
	
              Title:  President

            
	 
      
	 
      
	
              WELLS
      FARGO BANK, NATIONAL

            
	
              ASSOCIATION,
      as Property Trustee

            
	 
      
	 
      
	
              By:  /s/ Amy L.
      Martin

            
	
              Name:
      Amy L. Martin

            
	
              Title:  Vice
      President

            
	 
      
	 
      
	
              WELLS
      FARGO DELAWARE TRUST

            
	
              COMPANY,  as
      Delaware Trustee

            
	 
      
	 
      
	
              By:  /s/ Amy L.
      Martin

            
	
              Name:
      Amy L. Martin

            
	
              Title:  Vice
      President

            
	 
      
	 
      
	
              /s/ William L.
      Gipson

            
	
              William
      L. Gipson, as Administrative Trustee

            
	 
      
	 
      
	
              /s/ Gregory A.
      Knapp

            
	
              Gregory
      A. Knapp, as Administrative
Trustee

            


    

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

    


    


    CERTIFICATE OF
TRUST

    OF

     EMPIRE DISTRICT
ELECTRIC TRUST III

    


    


    THIS Certificate of Trust of Empire
District Electric Trust III (the “Trust”) is being duly executed and filed by
the undersigned, as trustees, to form a statutory trust under the Delaware
Statutory Trust Act (12 Del. C. §3801 et seq.)(the
“Act”).

    


    1.           Name.  The
name of the statutory trust formed hereby is Empire District Electric Trust
III.

    


    2.           Delaware
Trustee.  The name and business address of the trustee of the
Trust in the State of Delaware are Wells Fargo Delaware Trust Company, 919 North
Market Street, Suite 1600, Wilmington, Delaware 19801,
Attention:  Corporate Trust Administration.

    


    3.           Effective
Date.  This Certificate of Trust shall be effective upon
filing.

    


    [Signature
Page Follows]

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned have executed this Certificate in accordance
with Section 3811(a) of the Act.

    


    
      	
              WELLS
      FARGO BANK, NATIONAL ASSOCIATION,

              as
      Property Trustee

               

            
	 
      
	
              By: 
      ______________________________________

            
	
              Name:

            
	
              Title:

            
	 
      
	 
      
	
              WELLS
      FARGO DELAWARE TRUST COMPANY, as Delaware Trustee

            
	 
      
	 
      
	
              By: 
      _______________________________________

            
	
              Name:

            
	
              Title:

            
	 
      
	 
      
	 
      
	__________________________________________ 
      
	
              William
      L. Gipson, as Administrative Trustee

            
	 
      
	 __________________________________________
      
	
              Gregory
      A. Knapp, as Administrative Trustee