Preferred Securities
Western Resources Capital _
____% Cumulative Quarterly Income Preferred Securities ("QUIPS"), Series ___
(liquidation amount $25 per preferred security)
guaranteed on a subordinated basis by
Western Resources, Inc.
---------------------------
Underwriting Agreement
____________, 1995
As representatives of the several Underwriters
named in Schedule I hereto,
Ladies and Gentlemen:
Western Resources Capital __, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and Western Resources, Inc., a
Kansas corporation, as depositor of the Trust and as guarantor (the
"Guarantor"), propose, subject to the terms and conditions stated herein, that
the Trust issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), an aggregate of $________ (the "Securities") _____ % Cumulative
Quarterly Income Preferred Securities (liquidation amount $25 per preferred
security) representing beneficial interests in the Trust, guaranteed on a
subordinated basis by the Guarantor as to the payment of distributions, and as
to payments on liquidation or redemption, to the extent set forth in a guarantee
agreement (the "Guarantee") between the Guarantor and Wilmington Trust Company,
as trustee (the "Guarantee Trustee"). The Trust is to purchase, with the
proceeds of the Securities and with of its Common Securities (liquidation amount
$25 per common security) (the "Common Securities"), an aggregate of $___________
___% Junior Subordinated Debentures, Due ____ (the "Subordinated Debentures") of
the Guarantor, to be issued pursuant to an Indenture (the "Indenture") between
the Guarantor and Wilmington Trust Company, as trustee (the "Debenture
Trustee"). The payments made by the Guarantor on the Subordinated Debentures are
established at a level sufficient to permit the Trust, upon receipt of such
payments, to make payments on the Securities in accordance with their tenor.
1. Each of the Trust and the Guarantor jointly and severally
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-_______)
in respect of the Securities, the Subordinated Debentures and the
Guarantee (collectively, the "Registered Securities") has been filed
with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"); such registration
statement, in the form heretofore delivered to you and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
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Underwriters, have been declared effective by the Commission in such
form; no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed,
or transmitted for filing, with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement or thereafter filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act, being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all
exhibits thereto and including at the time it was declared effective
the documents incorporated by reference in the prospectus contained in
the registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Guarantor
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust or the Guarantor by an Underwriter through
____________________ expressly for use therein;
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required
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to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and the rules and regulations of the Commission thereunder, and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Trust or the Guarantor by an Underwriter
through expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Trust
or the Guarantor by an Underwriter through expressly for use therein;
(e) The Guarantor and its subsidiaries considered as a whole
have not sustained, since the date of the latest audited financial
statements incorporated by reference in the Prospectus, any material
loss or interference with their business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and Preliminary Prospectus, there has not been
(i) any material change in the capital stock, long-term debt or
consolidated capitalization of the Guarantor, or (ii) any material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, of the
Guarantor and its subsidiaries considered as a whole (other than as
referred to in or contemplated by the Registration Statement);
(f) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the power and authority to own property and conduct its business as
described in the Prospectus, and has conducted and will conduct no
business other than the transactions contemplated by this Agreement
and as described in the Prospectus; the Trust is not a party to or
bound by any agreement or instrument other than this Agreement, the
Amended and Restated Trust
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Agreement (the "Trust Agreement") between the Guarantor and the
trustees named therein (the "Trustees") and the agreements and
instruments contemplated by the Trust Agreement and the Prospectus;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by this Agreement and the Trust
Agreement and described in the Prospectus; and the Trust is not a
party to or subject to any action, suit or proceeding of any nature;
(g) Each of the Guarantor and its wholly owned subsidiary,
Kansas Gas and Electric Company ("KG&E"), has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Kansas, with corporate power (including power in
any relevant joint venture, partnership or other enterprise in which
the Guarantor or KG&E are participants) and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and each of the Guarantor and KG&E holds valid and
subsisting franchises, certificates of convenience and authority,
licenses and permits authorizing it to carry on the utility business
in which it is engaged as described in the Prospectus;
(h) The Guarantor has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Guarantor have been duly and validly authorized and issued and
are fully paid and non-assessable; all of the issued shares of capital
stock of each subsidiary of the Guarantor have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Guarantor, free and clear of all liens, encumbrances,
equities and claims, other than the pledge of the KG&E common stock
held by the Guarantor under the Credit Agreement by and between the
Guarantor and Chemical Bank, N.A. as disclosed in the Registration
Statement and Prospectus; and all of the outstanding beneficial
interests in the Trust have been duly authorized and issued, are fully
paid and non-assessable and conform to the descriptions thereof
contained in the Prospectus;
(i) The Common Securities have been duly authorized by the
Depositor of the Trust and upon delivery by the Trust to the Guarantor
against payment therefor as described in the Prospectus, will be duly
and validly issued and non-assessable beneficial interests in the
Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Time of Delivery, all
of the issued and outstanding Common Securities of the Trust will be
directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(j) The Securities have been duly authorized by the Depositor
of the Trust, and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and non-assessable
beneficial interests in the Trust and will conform in all material
respects to the description thereof contained in the Prospectus; and
the holders of the Securities (the "Securityholders") will be entitled
to the same limitation of personal liability extended to stockholders
of private
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corporations for profit organized under the General Corporation Law of
the State of Delaware (subject to the obligations of the
Securityholders under the Trust Agreement to make certain payments to
the Trust to defray expenses such as any applicable transfer and stamp
taxes);
(k) The Guarantee, the Subordinated Debentures, the Trust
Agreement and the Indenture (the Guarantee, the Subordinated
Debentures, the Trust Agreement and the Indenture being collectively
referred to as the "Guarantor Agreements") have each been duly
authorized and when validly executed and delivered by the Guarantor
and, in the case of the Guarantee, by the Guarantee Trustee, in the
case of the Trust Agreement, by the Trustees (as defined in the Trust
Agreement) and, in the case of the Indenture, by the Debenture
Trustee, and, in the case of the Subordinated Debentures, when validly
issued by the Guarantor and validly authenticated and delivered by the
Debenture Trustee, will constitute valid and legally binding
obligations of the Guarantor, enforceable in accordance with their
respective terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; the
Trust Agreement, the Indenture and the Guarantee have been duly
qualified under the Trust Indenture Act of 1939, as amended (the
"TIA"); the Subordinated Debentures are entitled to the benefits of
the Indenture; and the Guarantee Agreement will conform to the
descriptions thereof in the Prospectus;
(l) The issue and sale of the Securities and the Common
Securities by the Trust, the compliance by the Trust with all of the
provisions of this Agreement, the purchase of the Subordinated
Debentures by the Trust, and the consummation of the transactions
herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust is a party or by which the Trust is
bound or to which any of the property or assets of the Trust is
subject (in each case except for such conflicts, breaches, violations
or defaults that would not have a material adverse effect on the
business, business prospects, financial condition or results of
operations of the Guarantor and its subsidiaries considered as a
whole), nor will such action result in any violation of the provisions
of the Trust Agreement or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Trust or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body, other than the
authorization of the Kansas Corporation Commission which has been duly
obtained, is required for the issue and sale of the Securities and the
Common Securities by the Trust, the purchase of the Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement, except the registration
under the Act and the Exchange Act of the Securities, the Subordinated
Debentures and the Guarantee, the qualification of the Trust
Agreement, the Indenture and the Guarantee
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under the TIA, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase of the
Securities and the distribution of the Securities by the Underwriters;
and
(m) The issuance by the Guarantor of the Guarantee, the
compliance by the Guarantor with all of the provisions of this
Agreement, the execution, delivery and performance by the Guarantor of
the Guarantor Agreements, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Guarantor
is a party or by which the Guarantor is bound or to which any of the
property or assets of the Guarantor is subject (in each case, except
for such conflicts, breaches, violations or defaults that would not
have a material adverse effect on the business, business prospects,
financial condition or results of operations of the Guarantor and its
subsidiaries considered as a whole), nor will such action result in
any violation of the provisions of the Certificate of Incorporation or
by-laws of the Guarantor or any statute or any order, rule or
regulation of any court or governmental agency or body (including,
without limitation, any insurance regulatory agency or body) having
jurisdiction over the Guarantor or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body, other than
the authorization of the Kansas Corporation Commission which has been
duly obtained, is required for the issue of the Guarantee or the
consummation by the Guarantor of the other transactions contemplated
by this Agreement, except the registration under the Act of the
Securities, the Subordinated Debentures and the Guarantee, the
qualification of the Trust Agreement, the Indenture and the Guarantee
under the TIA and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase of the
Securities and distribution of the Securities by the Underwriters.
2. Subject to the terms and conditions herein set forth, the Trust and
the Guarantor agree that the Trust shall issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per preferred security, the
number of Securities set forth opposite the name of such Underwriter in Schedule
I hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Subordinated Debentures of the Guarantor, the
Guarantor hereby agrees to pay at the Time of Delivery (as defined in Section 4
hereof) to ____________________, for the accounts of the several Underwriters,
an amount equal to $0._______ per Security sold to [noninstitutional purchasers]
and $0._______ per Security sold to [institutional purchasers] for the
Securities to be delivered at the Time of Delivery.
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3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as ____________________ may request upon at least forty-eight hours' prior
notice to the Guarantor, shall be delivered by or on behalf of the Trust to
____________________, through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor, by certified or official bank
check or checks, payable to the order of the Trust, in Federal (same day) funds.
The Trust will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The Guarantor shall
reimburse the Underwriters upon being invoiced therefor for the costs incurred
by them, as determined in their sole discretion, of providing Federal (same day)
as opposed to New York Clearing House (next day) funds. The time and date of
such delivery and payment shall be, with respect to Securities, 9:30 a.m., New
York time, on _________, 1995 or such other time and date as
____________________ and the Guarantor may agree upon in writing. Such time and
date for delivery of the Securities is herein called the "Time of Delivery."
At the Time of Delivery, the Guarantor will pay, or cause to be paid,
the commission payable at such Time of Delivery to the Underwriters under
Section 2 hereof by certified or official bank check or checks, payable to the
order of ____________________, in New York Clearing House (next day) funds.
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and the check specified in subsection (a)
above, will be delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000 (the "Closing Location"), and the Securities will be
delivered at the Designated Office, all at the Time of Delivery. A meeting will
be held at the Closing Location at 2:00 p.m., New York City time, on the New
York Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this
Section 4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close.
5. The Trust and the Guarantor jointly and severally
agree with each
of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement; to make no
further amendment or
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any supplement to the Registration Statement or the Prospectus prior
to the Time of Delivery which shall be disapproved by you (your
approval not to be unreasonably withheld) promptly after reasonable
notice thereof; so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to advise you
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
prospectus has been filed and to furnish you with copies thereof; to
advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Registered Securities for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Registered
Securities or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Registered Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities, provided
that in connection therewith neither the Trust nor the Guarantor shall
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus, in
New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act or the Exchange Act, to notify you and
upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a
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prospectus in connection with sales of any of the Securities at any
time nine months or more after the date of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) In the case of the Guarantor, to make generally available
to its securityholders as soon as practicable, but in any event not
later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Guarantor and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including at the option of the Guarantor,
Rule 158 under the Act);
(e) During the period beginning from the date hereof and
continuing to and including the earlier of (i) the date, after the
Time of Delivery, on which the distribution of the Securities ceases,
as determined by you, and (ii) 30 days after the Time of Delivery, not
to offer, sell, contract to sell or otherwise dispose of any
securities, any other beneficial interests of the Trust, or any
preferred securities or any other securities of the Trust or the
Guarantor, as the case may be, that are substantially similar to the
Securities (including any guarantee of such securities) or any
securities that are convertible into or exchangeable for, or that
represent the right to receive securities, preferred securities or any
such substantially similar securities of either the Trust or the
Guarantor; and
(f) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange.
6. The Guarantor covenants and agrees with the several Underwriters
that it will pay the following: (i) the fees, disbursements and expenses of the
Trust's and the Guarantor's counsel and their accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing this Agreement,
the Indenture, the Trust Agreement, the Guarantee, the Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Registered
Securities; (iii) all expenses in connection with the qualification of the
Securities, the Subordinated Debentures and the Guarantee for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky Memorandum; (iv) any
fees charged by securities rating services for rating the Securities; (v) the
cost and charges of the transfer agent or registrar; (vi) the cost of qualifying
the Securities with The Depository Trust Company; (vii) all fees and expenses of
the Trustees, the Debenture Trustee and the Guarantee Trustee and their counsel;
(viii) all fees and expenses in connection with the listing of the Securities on
the New York
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Stock Exchange and the cost of registering the Securities under
Section 12 of the Exchange Act; (ix) the cost of preparing
certificates for the Securities and the Subordinated Debentures; and
(x) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided
for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, stamp, documentary, transfer and similar
taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at the Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Trust and the Guarantor herein are, at and as of the Time of Delivery, true
and correct, the condition that the Trust and the Guarantor shall have performed
all of their obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) That you shall receive: (i), at the Time of Delivery, the
signed opinions of: Xxxx X. Xxxxxxxxx, Esq., Executive Vice President
and General Counsel of the Guarantor; Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Guarantor; Xxxxxxxx, Xxxxxx & Finger, special Delaware counsel
to the Trust and the Guarantor; and Xxxxxx & Xxxxxx, counsel for the
Underwriters; and (ii), on the date hereof and at the Time of
Delivery, the signed letters of Xxxxxx Xxxxxxxx LLP, independent
public accountants of the Guarantor -- each substantially in the forms
heretofore furnished, and satisfactory in form and substance, to you
and addressed to the Underwriters (with reproduced or conformed copies
thereof for each of the other Underwriters);
(c) That all orders, approvals or consents of state or federal
regulatory commissions necessary to permit the issue, sale and
delivery of the Securities shall have been issued and the time for the
appeal thereof shall have expired; at the time of purchase such orders
shall be in full force and effect; and prior to such time of purchase
no stop order with respect to the effectiveness of the Registration
Statement shall have been issued under the Act by the Commission and
at such time of purchase no proceedings therefor or for the revocation
of such state or federal commission approvals shall be pending or
threatened;
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(d) That, at the time the Registration Statement became
effective, the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus at its issue date and at the time
of purchase did not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, other than any statement contained in, or any matter
omitted from, the Registration Statement or the Prospectus in reliance
upon, and in conformity with, information furnished in writing by or
on behalf of any Underwriter through you to the Trust or the Guarantor
expressly for use with reference to such Underwriter in the
Registration Statement or Prospectus;
(e) That, (i) since the date of the latest audited financial
statements incorporated by reference in the Prospectus, the Guarantor
and its subsidiaries considered as a whole shall not have sustained
any material loss or interference with their business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, or (ii) since the respective dates as of which information
is given in the Registration Statement and Preliminary Prospectus,
there has not been (a) any change in the capital stock, long-term debt
or consolidated capitalization of the Guarantor, or (b) any change, or
any development involving a prospective change, in the condition,
financial or otherwise, of the Guarantor and its subsidiaries
considered as a whole (other than as referred to in or contemplated by
the Registration Statement and Prospectus), which in the case of
either (i) or (ii), in the reasonable judgment of the Underwriters, is
sufficiently material and adverse so as to render it impractical or
inadvisable to offer or deliver the Securities on the terms and in the
manner contemplated in the Prospectus;
(f) That the Trust and the Guarantor shall have performed all
of their respective obligations under this Agreement which are to be
performed by the terms hereof at or before the time of purchase;
(g) That the Guarantor shall, at the time of purchase, deliver
to you (with reproduced or conformed copies thereof for each of the
other Underwriters) a signed certificate of two of its executive
officers stating that, subsequent to the respective dates as of which
information is given in the Registration Statement and in the
Prospectus, the Prospectus was first filed, or mailed for filing,
pursuant to Rule 424 under the Act, and prior to the time of purchase,
no material adverse change in the condition of the Guarantor,
financial or otherwise, shall have taken place (other than as referred
to in or contemplated by the Registration Statement and Prospectus as
of such time) and also covering the matters set forth in (d) and (f)
of this Section 7;
(h) Subsequent to the date of this Agreement: (i) no
downgrading shall have occurred in the rating accorded the Guarantor's
debt
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securities, preferred or preference stock by a "nationally recognized
securities rating organization," as that term is defined by the
Commission for purposes of its Rule 436(g)(2); and (ii) no such rating
organization shall have announced publicly that it has placed, or
informed the Guarantor or the Underwriters that it intends to place,
any of the Guarantor's securities on what is commonly referred to as a
"watchlist" for possible downgrading, in a manner or to an extent
indicating a materially greater likelihood of a downgrading in rating
as described in clause (i) above occurring than was the case as of the
date hereof;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Guarantor's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if
the effect of any such event specified in this Clause (iv) in the
judgment of ___________________ makes it impracticable or inadvisable
to proceed with the public offering of the Securities or the delivery
of the Securities at the Time of Delivery on the terms and in the
manner contemplated in the Prospectus; and
(j) The Securities to be sold by the Trust at the Time of
Delivery shall have been duly listed, subject to notice of issuance,
on the New York Stock Exchange.
8. (a) The Trust and the Guarantor will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Trust nor the Guarantor shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Trust or the Guarantor by
any Underwriter through ____________________ expressly for use therein; and
provided, further, that neither the Trust nor the Guarantor shall be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus to the extent that
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any such loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Securities to a person as to whom it shall be
established that there was not sent or given, at or prior to written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented in any case where such delivery is required by the Act
if the Trust or the Guarantor previously furnished copies thereof in the
quantity requested in accordance with Section 5(c) hereof to such Underwriter
and the loss, claim, damage or liability of such Underwriter results from an
untrue statement or omission of a material fact contained in the Preliminary
Prospectus and corrected in the Prospectus or the Prospectus as then amended or
supplemented.
(b) Each Underwriter will indemnify and hold harmless the
Trust and the Guarantor against any losses, claims, damages or liabilities to
which the Trust or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Trust or the
Guarantor by such Underwriter through ________________________ expressly for use
therein; and will reimburse the Trust and the Guarantor for any legal or other
expenses reasonably incurred by the Trust or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, including the employment of counsel, reasonably satisfactory to the
indemnified party, and payment of expenses. Such indemnified party shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless the employment of such counsel shall have been authorized in writing by
the indemnifying party in connection with the defense of such action or the
indemnifying party shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses
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available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses of
one counsel (plus local counsel, as needed) for all indemnified parties selected
by such indemnified party shall be borne by the indemnifying party. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust and the Guarantor on the one hand and
the Underwriters on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Trust and the Guarantor on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Trust and the Guarantor on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as (i) the total proceeds from the
offering (before deducting expenses) received by the Trust less the total
underwriting compensation paid by the Guarantor bear to (ii) the total
underwriting compensation received by the Underwriters, in each case as set
forth in, or in footnotes to, the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Trust and the Guarantor on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, the Guarantor and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
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considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Trust and the Guarantor under this
Section 8 shall be in addition to any liability which the Trust and the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Guarantor, each administrative trustee of the Trust
and to each person, if any, who controls the Trust or the Guarantor within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Securities, then the Trust and the Guarantor shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to you to purchase such Securities on such
terms. In the event that, within the respective prescribed periods, you notify
the Trust and the Guarantor that you have so arranged for the purchase of such
Securities, or the Trust or the Guarantor notifies you that it has so arranged
for the purchase of such Securities, you or the Trust and the Guarantor shall
have the right to postpone such Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Trust and the Guarantor agree to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
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(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Trust and the Guarantor as provided in subsection (a) above, the
aggregate number of such Securities which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Securities to be purchased at
such Time of Delivery, then the Trust and the Guarantor shall have the right to
require each non-defaulting Underwriter to purchase the number of Securities
which such Underwriter agreed to purchase hereunder at such Time of Delivery
and, in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Securities which such Underwriter agreed to
purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Trust and the Guarantor as provided in subsection (a) above, the
aggregate number of such Securities which remains unpurchased exceeds
one-eleventh of the aggregate number of all the Securities to be purchased at
such Time of Delivery, or if the Trust and the Guarantor shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Trust or the Guarantor, except for the expenses
to be borne by the Trust, the Guarantor and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Trust, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Trust, the Guarantor or any officer or director or
controlling person of the Trust or the Guarantor, and shall survive delivery of
and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section
9 hereof, neither the Trust nor the Guarantor shall then be under any liability
to any Underwriter except as provided in Section 6 and Section 8 hereof; but if,
for any other reason, any Securities are not delivered by or on behalf of the
Trust as provided herein, the Trust and the Guarantor will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Trust and the Guarantor shall then be under
no further liability to any Underwriter in respect of the Securities not so
delivered except as provided in Section 6 and Section 8 hereof.
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12. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representatives in care of
_______________________________________________________________, Attention:
Registration Department; and if to the Trust or the Guarantor by mail to it at
the address of the Trust or the Guarantor set forth in the Registration
Statement, Attention: Secretary; provided, however that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address as supplied
to the Trust and the Guarantor by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Trust, the Guarantor and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the
Guarantor or the Trust and each person who controls the Trust, the Guarantor or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, on the one hand, and the Trust and the Guarantor, on the other. It
is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Trust and the
Guarantor for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Western Resources Capital
By: Western Resources, Inc., as Depositor
By:_______________________________________
Name:_________________________________
Title:________________________________
Western Resources, Inc.
By:_______________________________________
Name:_________________________________
Title:________________________________
Accepted as of the date hereof:
By:____________________________________________
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SCHEDULE I
Total Number of
Securities
Underwriters to be purchased
Total........................................... _________
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