The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together. (a) The Company is a validly organized and existing corporation in good standing under the laws of the State of Kansas with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement. (b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture. (d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). (e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture, (ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 3 contracts
Samples: Underwriting Agreement (Evergy Kansas Central, Inc.), Underwriting Agreement (Evergy Kansas Central, Inc.), Underwriting Agreement (Westar Energy Inc /Ks)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate actionauthorized, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and delivered by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage IndentureCompany.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds Senior Notes have been duly authorized, executed and delivered by the Company.
(e) Each Subsidiary has been duly organized or formed and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or formation, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and 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 or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock owned directly or indirectly by the Company of each Subsidiary have been duly authorized and validly issued, are (in the case of capital stock) fully paid and non-assessable and, when authenticated to the best of such counsel’s knowledge, such shares of capital stock owned by the Trustee in accordance with Company, are owned by the terms Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the Mortgage Indenture outstanding shares of capital stock of any Subsidiary was issued in violation of preemptive or similar rights of any securityholder of such Subsidiary.
(f) No approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than (i) as may be required under securities or blue sky laws of the various states, as to which such counsel need express no opinion, and delivered against payment therefore pursuant (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary with respect to the terms issue and sale of the Senior Notes as contemplated in the Underwriting Agreement and the Indenture.
(g) The Company and the Subsidiaries hold, to the extent required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
(h) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject which are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(i) To the best of such counsel’s knowledge, the Company is not in violation of its Articles of Incorporation, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
(j) The execution, delivery and performance of the Underwriting Agreement, will constitute legal, valid the Indenture and binding obligations the Senior Notes and the consummation of the Company enforceable in accordance with their terms, secured by transactions contemplated therein (including the lien of issuance and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery sale of the Supplemental IndentureSenior Notes, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held proceeds received by the Company and (vi) matters specified from the sale of the Senior Notes as described in the Disclosure Package and the Prospectus under the caption “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (eUse Of Proceeds”) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired compliance by the Company after with its obligations under the execution Underwriting Agreement, the Indenture and delivery the Senior Notes do not and 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 Supplemental Indenture willCompany or any Subsidiary pursuant to any material Agreement or Instrument, upon or any law, administrative regulation or administrative or court order or decree known to such acquisition, become subject counsel to be applicable to the lien 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 Mortgage Indenture provisions of the Articles of Incorporation or by-laws of the Company.
(k) 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 Disclosure Package or the Prospectus or to be filed as exhibits to the extent provided Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits to the Registration Statement, the descriptions thereof or references thereto are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement or Instrument described, referred to, filed or incorporated by reference therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 2 contracts
Samples: Underwriting Agreement (Great Plains Energy Inc), Underwriting Agreement (Great Plains Energy Inc)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Mortgage Bonds, together with the interest and any premium thereon, as provided in the Mortgage Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture.
(d) The Mortgage Bonds are in due and proper form; the issue and sale of the Mortgage Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Mortgage Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens Permissible Encumbrances (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First General Mortgage Bonds—Priority Security and SecurityPriority;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Mortgage Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, which includes substantially all of the fixed property of the Company, and the franchises and permits of the Company pertaining to the operation of such property; all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens and such other exceptions as are permitted Permissible Encumbrances, to liens, if any, existing or placed thereon at the time of the acquisition thereof by the Company and to any rights or equities of others attaching under applicable local law in the absence of notice of the lien of the Mortgage IndentureIndenture by filing, recordation or otherwise.
Appears in 1 contract
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate actionauthorized, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and delivered by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage IndentureCompany.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds Senior Notes have been duly authorized, executed and delivered by the Company.
(e) Each Subsidiary has been duly organized or formed and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or formation, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and 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 or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock owned directly or indirectly by the Company of each Subsidiary have been duly authorized and validly issued, are (in the case of capital stock) fully paid and non-assessable and, when authenticated to the best of such counsel’s knowledge, such shares of capital stock owned by the Trustee in accordance with Company, are owned by the terms Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the Mortgage Indenture outstanding shares of capital stock of any Subsidiary was issued in violation of preemptive or similar rights of any securityholder of such Subsidiary.
(f) No approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than (i) as may be required under securities or blue sky laws of the various states, as to which such counsel need express no opinion, and delivered against payment therefore pursuant (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary with respect to the terms issue and sale of the Senior Notes as contemplated in the Underwriting Agreement and the Indenture.
(g) The Company and the Subsidiaries hold, to the extent required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
(h) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject which are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(i) To the best of such counsel’s knowledge, the Company is not in violation of its Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
(j) The execution, delivery and performance of the Underwriting Agreement, will constitute legal, valid the Indenture and binding obligations the Senior Notes and the consummation of the Company enforceable in accordance with their terms, secured by transactions contemplated therein (including the lien of issuance and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery sale of the Supplemental IndentureSenior Notes, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held proceeds received by the Company and (vi) matters specified from the sale of the Senior Notes as described in the Disclosure Package and the Prospectus under the caption “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (eUse Of Proceeds”) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired compliance by the Company after with its obligations under the execution Underwriting Agreement, the Indenture and delivery the Senior Notes do not and 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 Supplemental Indenture willCompany or any Subsidiary pursuant to any material Agreement or Instrument, upon or any law, administrative regulation or administrative or court order or decree known to such acquisition, become subject counsel to be applicable to the lien 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 Mortgage Indenture provisions of the Restated Articles of Consolidation, as amended, or by-laws of the Company.
(k) 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 Disclosure Package or the Prospectus or to be filed as exhibits to the extent provided Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits to the Registration Statement, the descriptions thereof or references thereto are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement or Instrument described, referred to, filed or incorporated by reference therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 1 contract
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Mortgage Bonds, together with the interest and any premium thereon, as provided in the Mortgage Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture.
(d) The Mortgage Bonds are in due and proper form; the issue and sale of the Mortgage Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Mortgage Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore therefor pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
, (ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens Permissible Encumbrances (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First General Mortgage Bonds—Priority Security and SecurityPriority;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Mortgage Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, which includes substantially all of the fixed property of the Company, and the franchises and permits of the Company pertaining to the operation of such property; all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens Permissible Encumbrances, to liens, if any, existing or placed thereon at the time of the acquisition thereof by the Company and to any rights or equities of others attaching under applicable local law in the absence of notice of the lien of the Mortgage Indenture by filing, recordation or otherwise.
(f) The Mortgage Indenture has been duly filed for recordation and otherwise filed, indexed or cross-indexed in such manner and in such places as is required by law in order to give constructive notice of, and establish, preserve and protect, the lien of the Mortgage Indenture on the Mortgaged Property, and all taxes payable to any state or subdivision thereof in connection with the execution, delivery or recordation of the Mortgage Indenture or the execution, authentication, issuance and delivery of the Mortgage Bonds and outstanding mortgage bonds have been paid.
(g) The Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and 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 or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of the Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such counsel’s knowledge, such shares of capital stock are owned directly by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the outstanding shares of capital stock of the Subsidiary was issued in violation of preemptive or other exceptions similar rights of any securityholder of the Subsidiary.
(h) The order of the Missouri Public Service Commission authorizing the issuance of the Mortgage Bonds by the Company and the sale of the Mortgage Bonds as contemplated by the Underwriting Agreement has been duly entered and is still in force and effect, and no further consent, approval, qualification, authorization, certificate or order of, or registration or filing with, any court or other state or federal commission or regulatory authority or agency (other than (i) as may be required under securities or blue sky laws of the various states and (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary for the execution and delivery by the Company of, or the performance of the Company’s obligations under, the Underwriting Agreement or the Mortgage Indenture or for the issue and sale of the Mortgage Bonds as contemplated therein.
(i) The Company and the Subsidiary hold, to the extent required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are permitted engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
(j) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened that are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject that are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(k) To the best of such counsel’s knowledge, the Company is not in violation of its Amended and Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
(l) The execution, delivery and performance of the Underwriting Agreement, the Mortgage Indenture and the Mortgage Bonds and the consummation of the transactions contemplated therein (including the issuance and sale of the Mortgage Bonds and the use of the proceeds received by the Company from the sale of the Mortgage Bonds as described in the Disclosure Package and in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under the Underwriting Agreement, the Mortgage Indenture and the Mortgage Bonds do not and will not conflict with or violate or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance (other than the lien of the Mortgage Indenture) upon any property or assets of the Company or the Subsidiary pursuant to any material Agreement or Instrument or any law, any regulation or any administrative or court order or 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 Company’s Amended and Restated Articles of Consolidation, as amended, or the Company’s Amended and Restated By-Laws.
(m) 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 Disclosure Package or the Prospectus or to be filed as exhibits or incorporated by reference as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits to the Registration Statement, the descriptions thereof or references thereto are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement or Instrument described, referred to, filed or incorporated by reference therein.
Appears in 1 contract
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Mortgage Bonds, together with the interest and any premium thereon, as provided in the Mortgage Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture.
(d) The Mortgage Bonds are in due and proper form; the issue and sale of the Mortgage Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Mortgage Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore therefor pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 1 contract
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate actionauthorized, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and delivered by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage IndentureCompany.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds Senior Notes have been duly authorized, executed and delivered by the Company and, when authenticated by Company.
e) The Subsidiary has been duly organized and is validly existing as a corporation in good standing under the Trustee in accordance with the terms laws of the Mortgage Indenture jurisdiction of its incorporation, has the corporate power and delivered against payment therefore pursuant authority to the terms of the Underwriting Agreementown, will constitute legal, valid lease and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of operate its properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified to conduct its business as described in the Disclosure Package and the Prospectus under “Description and 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 First Mortgage Bonds—Priority and Security;” the description ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Mortgage Indenture Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of the Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenturecounsel’s knowledge, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired shares of capital stock are owned directly by the Company after free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the outstanding shares of capital stock of the Subsidiary was issued in violation of preemptive or similar rights of any securityholder of the Subsidiary.
f) No consent, approval, qualification, authorization, certificate or order of, or registration or filing with, any court or other state or federal commission or regulatory authority or agency (other than (i) as may be required under securities or blue sky laws of the various states and (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary for the execution and delivery by the Company of, or the performance of the Supplemental Company’s obligations under, the Underwriting Agreement or the Indenture will, upon such acquisition, become subject to or for the lien issue and sale of the Mortgage Indenture Senior Notes as contemplated therein.
g) The Company and the Subsidiary hold, to the extent provided required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
h) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, subjectand all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject which are not described in the Disclosure Package and the Prospectus, howeverincluding ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to Permitted Liens the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
i) To the best of such other exceptions counsel’s knowledge, the Company is not in violation of its Amended and Restated Articles of Consolidation, as are permitted amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
j) The execution, delivery and performance of the Underwriting Agreement, the Indenture and the Senior Notes and the consummation of the transactions contemplated therein (including the issuance and sale of the Senior Notes and the use of the proceeds received by the Mortgage IndentureCompany from the sale of the Senior Notes as described in the Disclosure Package and in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under the Underwriting Agreement, the Indenture and the Senior Notes do not and will not conflict with or violate 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 or the Subsidiary pursuant to any material Agreement or Instrument or any law, any regulation or any administrative or court order or 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 Amended and Restated Articles of Consolidation, as amended, or by-laws of the Company, as amended.
k) 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 Disclosure Package or the Prospectus or to be filed as exhibits or incorporated by reference as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits to the Registration Statement, the descriptions thereof or references thereto are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement or Instrument described, referred to, filed or incorporated by reference therein.
Appears in 1 contract
Samples: Underwriting Agreement (Kansas City Power & Light Co)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.. (MP) 21075/533/UA/ua.doc
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting this Agreement.
(b) The Underwriting This Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate actionauthorized, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and delivered by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage IndentureCompany.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds Senior Notes have been duly authorized, executed and delivered by the Company and, when authenticated by Company.
e) Each Subsidiary has been duly organized or formed and is validly existing as a corporation in good standing under the Trustee in accordance with the terms laws of the Mortgage Indenture jurisdiction of its incorporation, has the corporate power and delivered against payment therefore pursuant authority to the terms of the Underwriting Agreementown, will constitute legal, valid lease and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of operate its properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified to conduct its business as described in the Disclosure Package and the Prospectus under “Description and 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 First Mortgage Bonds—Priority and Security;” the description ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Mortgage Indenture Disclosure Package and the Prospectus, all of the issued and outstanding capital stock owned directly or indirectly by the Company of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such property counsel’s knowledge, such capital stock owned by the Company, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the outstanding shares of capital stock of any Subsidiary was issued in violation of preemptive or similar rights of any securityholder of such Subsidiary.
f) No approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than (i) as may be required under securities or blue sky laws of the various states, as to which such counsel need express no opinion, and (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only necessary with respect to the qualifications set forth issue and sale of the Senior Notes as contemplated in this paragraph (eAgreement and the Indenture.
g) The Company and the Subsidiaries hold, to such other matters as do not materially affect the security for the Bondsextent required, constitutes a validvalid and subsisting franchises, direct first mortgage lien licenses and permits authorizing them to carry on the Mortgaged Propertyregulated utility businesses in which they are engaged, in the territories from which substantially all of the Company’s consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change. (MP) 21075/533/UA/ua.doc
h) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property (is the subject which are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the extent such property constitutes Mortgaged Property) acquired by business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company after and its subsidiaries, taken as a whole.
i) To the execution and delivery best of such counsel’s knowledge, the Supplemental Indenture willCompany is not in violation of its Restated Articles of Consolidation, upon such acquisitionas amended, become subject to or in default in the lien performance or observance of the Mortgage Indenture to the extent provided thereinany material obligation, subjectagreement, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenturecovenant or condition contained in any material Agreement or Instrument.
Appears in 1 contract
Samples: Underwriting Agreement (Kansas City Power & Light Co)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation in good standing under the laws of the State of Kansas with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 1 contract
Samples: Underwriting Agreement (Evergy Kansas Central, Inc.)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Mortgage Bonds, together with the interest and any premium thereon, as provided in the Mortgage Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage Indenture.
(d) The Mortgage Bonds are in due and proper form; the issue and sale of the Mortgage Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Mortgage Bonds have been duly authorized, executed and delivered by the Company and, when authenticated by the Trustee in accordance with the terms of the Mortgage Indenture and delivered against payment therefore pursuant to the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery of the Supplemental Indenture, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
, (ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens Permissible Encumbrances (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held by the Company and (vi) matters specified in the Disclosure Package and the Prospectus under “Description of First General Mortgage Bonds—Priority Security and SecurityPriority;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (e) and to such other matters as do not materially affect the security for the Mortgage Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, which includes substantially all of the fixed property of the Company, and the franchises and permits of the Company pertaining to the operation of such property; all property (to the extent such property constitutes Mortgaged Property) acquired by the Company after the execution and delivery of the Supplemental Indenture will, upon such acquisition, become subject to the lien of the Mortgage Indenture to the extent provided therein, subject, however, to Permitted Liens Permissible Encumbrances, to liens, if any, existing or placed thereon at the time of the acquisition thereof by the Company and to any rights or equities of others attaching under applicable local law in the absence of notice of the lien of the Mortgage Indenture by filing, recordation or otherwise.
(f) The Mortgage Indenture has been duly filed for recordation and otherwise filed, indexed or cross-indexed in such manner and in such places as is required by law in order to give constructive notice of, and establish, preserve and protect, the lien of the Mortgage Indenture on the Mortgaged Property, and all taxes payable to any state or subdivision thereof in connection with the execution, delivery or recordation of the Mortgage Indenture or the execution, authentication, issuance and delivery of the Mortgage Bonds and outstanding mortgage bonds have been paid.
(g) The Subsidiary has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and 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 or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of the Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such counsel’s knowledge, such shares of capital stock are owned directly by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the outstanding shares of capital stock of the Subsidiary was issued in violation of preemptive or similar rights of any securityholder of the Subsidiary.
(h) The order of the Missouri Public Service Commission authorizing the issuance of the Mortgage Bonds by the Company and the sale of the Mortgage Bonds as contemplated by the Underwriting Agreement has been duly entered and is still in force and effect, and no further consent, approval, qualification, authorization, certificate or order of, or registration or filing with, any court or other exceptions state or federal commission or regulatory authority or agency (other than (i) as may be required under securities or blue sky laws of the various states and (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary for the execution and delivery by the Company of, or the performance of the Company’s obligations under, the Underwriting Agreement or the Mortgage Indenture or for the issue and sale of the Mortgage Bonds as contemplated therein.
(i) The Company and the Subsidiary hold, to the extent required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are permitted engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
(j) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened that are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject that are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(k) To the best of such counsel’s knowledge, the Company is not in violation of its Amended and Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
(l) The execution, delivery and performance of the Underwriting Agreement, the Mortgage Indenture and the Mortgage Bonds and the consummation of the transactions contemplated therein (including the issuance and sale of the Mortgage Bonds and the use of the proceeds received by the Company from the sale of the Mortgage Bonds as described in the Disclosure Package and in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations under the Underwriting Agreement, the Mortgage Indenture and the Mortgage Bonds do not and will not conflict with or violate or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance (other than the lien of the Mortgage Indenture) upon any property or assets of the Company or the Subsidiary pursuant to any material Agreement or Instrument or any law, any regulation or any administrative or court order or 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 Amended and Restated Articles of Consolidation, as amended, or by-laws of the Company, as amended.
(m) 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 Disclosure Package or the Prospectus or to be filed as exhibits or
Appears in 1 contract
Samples: Underwriting Agreement (Kansas City Power & Light Co)
The Final Term Sheet. For purposes of determining the “Disclosure Package,” the information contained in the foregoing documents shall be considered together.
(a) The Company is a validly organized and existing corporation 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 with corporate power and authority to own, lease and operate its properties and to conduct its business as set forth in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(b) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(c) The Mortgage Indenture is in due and proper form, has been duly and validly authorized by all necessary corporate actionauthorized, has been duly and validly executed and delivered, and is a valid instrument legally binding on the Company enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and delivered by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law); provided, however, that certain remedial provisions of the Mortgage Indenture may not be enforceable, but such unenforceability will not render the Mortgage Indenture invalid as a whole or affect the judicial enforcement of (i) the obligation of the Company to repay the principal of the Bonds, together with the interest and any premium thereon, as provided in the Bonds, (ii) the acceleration of the obligation of the Company to repay such principal, together with such interest and premium, based upon a material default by the Company in the payment of such principal, interest or premium or (iii) the right of the Trustee to exercise its right to foreclose under the Mortgage IndentureCompany.
(d) The Bonds are in due and proper form; the issue and sale of the Bonds by the Company in accordance with the terms of the Underwriting Agreement have been duly and validly approved by the necessary corporate action of the Company; the Bonds Senior Notes have been duly authorized, executed and delivered by the Company.
(e) The Subsidiary has been duly organized or formed and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or formation, has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and 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 or to be in good standing would not result in a Material Adverse Change; except as otherwise disclosed in the Disclosure Package and the Prospectus, all of the issued and outstanding capital stock owned directly or indirectly by the Company of the Subsidiary have been duly authorized and validly issued, are (in the case of capital stock) fully paid and non-assessable and, when authenticated to the best of such counsel’s knowledge, such shares of capital stock owned by the Trustee in accordance with Company, are owned by the terms Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim; and none of the Mortgage Indenture outstanding shares of capital stock of the Subsidiary was issued in violation of preemptive or similar rights of any securityholder of the Subsidiary.
(f) No approval, authorization, consent, certificate or order of any state or federal commission or regulatory authority (other than (i) as may be required under securities or blue sky laws of the various states, as to which such counsel need express no opinion, and delivered against payment therefore pursuant (ii) as may have already been obtained or made and shall be in full force and effect on the date hereof) is necessary with respect to the terms issue and sale of the Senior Notes as contemplated in the Underwriting Agreement and the Indenture.
(g) The Company and the Subsidiary hold, to the extent required, valid and subsisting franchises, licenses and permits authorizing them to carry on the regulated utility businesses in which they are engaged, in the territories from which substantially all of their consolidated gross operating revenue is derived, except where the failure to hold such franchises, licenses and permits would not reasonably be expected to result in a Material Adverse Change.
(h) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Disclosure Package and the Prospectus, other than those disclosed therein, and all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their property is the subject which are not described in the Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business of the Company, are, considered in the aggregate, not material to the consolidated financial condition of the Company and its subsidiaries, taken as a whole.
(i) To the best of such counsel’s knowledge, the Company is not in violation of its Restated Articles of Consolidation, as amended, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material Agreement or Instrument.
(j) The execution, delivery and performance of the Underwriting Agreement, will constitute legal, valid the Indenture and binding obligations the Senior Notes and the consummation of the Company enforceable in accordance with their terms, secured by transactions contemplated therein (including the lien of issuance and entitled to the benefits provided by the Mortgage Indenture, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting enforcement of mortgagees’ or other creditors’ rights generally and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) Except as to property acquired subsequent to the execution and delivery sale of the Supplemental IndentureSenior Notes, the Company has good and sufficient title to, or a satisfactory easement in, the Mortgaged Property (as such term is defined in the Mortgage Indenture) (except such property as may have been disposed of or released from the lien of the Mortgage Indenture in accordance with the terms thereof), subject only to (i) the lien of the Mortgage Indenture,
(ii) exceptions and reservations specifically set forth therein, (iii) Permitted Liens (as such term is defined in the Mortgage Indenture), (iv) leases and minor liens of judgments not prior to the lien of the Mortgage Indenture that, in my opinion, do not interfere with the Company’s business, (v) defects, irregularities and deficiencies in titles of properties and rights-of-way that, in my opinion, do not materially impair the use of such property and rights-of-way for the purposes for which they are held proceeds received by the Company and (vi) matters specified from the sale of the Senior Notes as described in the Disclosure Package and the Prospectus under the caption “Description of First Mortgage Bonds—Priority and Security;” the description in the Mortgage Indenture of such property is adequate to constitute the mortgage lien thereon; the Mortgage Indenture, subject only to the qualifications set forth in this paragraph (eUse Of Proceeds”) and to such other matters as do not materially affect the security for the Bonds, constitutes a valid, direct first mortgage lien on the Mortgaged Property, and all property (to the extent such property constitutes Mortgaged Property) acquired compliance by the Company after with its obligations under the execution Underwriting Agreement, the Indenture and delivery the Senior Notes do not and 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 Supplemental Indenture willCompany or the Subsidiary pursuant to any material Agreement or Instrument, upon or any law, administrative regulation or administrative or court order or decree known to such acquisition, become subject counsel to be applicable to the lien 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 Mortgage Indenture provisions of the Restated Articles of Consolidation, as amended, or by-laws of the Company.
(k) 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 Disclosure Package or the Prospectus or to be filed as exhibits to the extent provided Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits to the Registration Statement, the descriptions thereof or references thereto are correct in all material respects, and no default exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement or Instrument described, referred to, filed or incorporated by reference therein, subject, however, to Permitted Liens and such other exceptions as are permitted by the Mortgage Indenture.
Appears in 1 contract
