Exhibit 4(a)
Kansas City Power & Light Company
Debt Securities
UNDERWRITING AGREEMENT
November 15, 2001
ABN AMRO Incorporated
000 X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Kansas City Power & Light Company, a Missouri
corporation (the "Company"), proposes to issue and sell up
to $150,000,000 aggregate principal amount of its senior or
subordinated debt securities (the "Debt Securities"), from
time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale.
The Debt Securities will be issued in one or more
series as senior indebtedness (the "Senior Debt Securities")
or as subordinated indebtedness (the "Subordinated Debt
Securities") under the indenture, dated as of December 1,
2000 (the "Indenture"), between the Company and The Bank of
New York, as trustee (the "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing
of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion
provisions and any other variable terms established by or
pursuant to the applicable Indenture.
Whenever the Company determines to make an
offering of Debt Securities through ABN AMRO Incorporated
and BNY Capital Markets, Inc., as joint-book running
managing underwriters (the "Representatives"), or through an
underwriting syndicate jointly-managed by the
Representatives, the Company will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such
Debt Securities to, and the purchase and offering thereof
by, the Representatives and such other underwriters, if any,
selected by the Representatives (the "Underwriters", which
term shall include the Representatives, whether acting as
sole Underwriters or as a member of an underwriting
syndicate, as well as any Underwriter substituted pursuant
to Section 10 hereof). The Terms Agreement relating to the
offering of Debt Securities shall specify the aggregate
principal amount of Debt Securities to be issued (the
"Underwritten Debt Securities"), the name of each
Underwriter participating in such offering (subject to
substitution as provided in Section 10 hereof) and the name
of any Underwriter other than the Representatives acting as
co-manager in connection with such offering, the aggregate
principal amount of Underwritten Debt Securities which each
such Underwriter severally agrees to purchase, whether such
offering is on a fixed or variable price basis and, if on a
fixed price basis, the initial offering price, the price at
which the Underwritten Debt Securities are to be purchased
by the Underwriters, the form, time, date and place of
delivery and payment of the Underwritten Debt Securities and
any other material variable terms of the Underwritten Debt
Securities. The Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the
form of an exchange of any standard form of written
telecommunication between the Company and the
Representatives, acting for themselves and, if applicable,
as representative of any other Underwriters. Each offering
of Underwritten Debt Securities through the Representatives
as sole Underwriters or through an underwriting syndicate
managed by the Representatives will be governed by this
Underwriting Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and
Exchange Commission (the "SEC") a registration statement on
Form S-3 (No. 333-50396) for the registration of the Debt
Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the
SEC and the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the
applicable Terms Agreement and each such post-effective
amendment, if any, has been declared effective by the SEC.
Such registration statement (as so amended, if applicable),
is referred to herein as the "Registration Statement"; and
the final prospectus and the final prospectus supplement
relating to the offering of the Underwritten Debt
Securities, in the forms first furnished to the Underwriters
by the Company for use in connection with the offering of
the Underwritten Debt Securities, are collectively referred
to herein as the "Prospectus"; provided, however, that all
references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to
the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement
with the SEC pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then
all references to "Registration Statement" shall also be
deemed to include the Rule 462 (b) Registration Statement.
A "preliminary prospectus" shall be deemed to refer to (i)
any prospectus used before the Registration Statement became
effective and (ii) any preliminary prospectus supplement
that omitted information to be included upon pricing in a
form of prospectus filed with the SEC pursuant to Rule
424(b) of the 1933 Act Regulations and was used after such
effectiveness and prior to the initial delivery of the
Prospectus to the Underwriters by the Company. For purposes
of this Underwriting Agreement, all references to the
Registration Statement, Prospectus or preliminary prospectus
or to any amendment or supplement to any of the foregoing
shall be deemed to include any copy filed with the SEC
pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
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All references in this Underwriting Agreement to
financial statements and schedules and other information
which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean
and include all such financial statements and schedules and
other information which is incorporated by reference in the
Registration Statement, Prospectus or preliminary
prospectus, as the case may be, prior to the execution of
the applicable Terms Agreement; and all references in this
Underwriting Agreement to amendments or supplements to the
Registration Statement, Prospectus or preliminary prospectus
shall be deemed to include the filing of any document under
the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary
prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties of the
Company.
(a) The Company represents and warrants to, and agrees
with, each Underwriter named in the applicable Terms
Agreement, as of the date thereof, and as of the Closing
Time (as defined below) (in each case, a "Representation
Date") that:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933
Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933
Act and no stop order suspending the effectiveness of the
Registration Statement (or such Rule 462(b) Registration
Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are
contemplated by the SEC, and any request on the part of the
SEC for additional information has been complied with. In
addition, the Indenture has been duly qualified under the
1939 Act.
At the respective times the Registration
Statement (including any Rule 462(b) Registration
Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent
Annual Report on Form 10-K with the SEC (the "Annual
Report on Form 10-K")) became effective and at each
Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and
any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the SEC under the 1939 Act
(the "1939 Act Regulations") and did not 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. At the date of the Prospectus, at the
Closing Time and as of each Representation Date,
neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue
statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
Notwithstanding the
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foregoing, the representations and
warranties in this subsection shall not apply to
statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and
in conformity with information furnished to the Company
in writing by the Underwriters expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus
filed as part of the Registration Statement as
originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with
the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of
Underwritten Debt Securities will, at the time of such
delivery, be identical to any electronically
transmitted copies thereof filed with the SEC pursuant
to XXXXX, except to the extent permitted by Regulation
S-T.
(ii) Incorporated Documents. The documents
incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were
filed with the SEC, complied in all material respects with
the requirements of the 1934 Act and the rules and
regulations of the SEC thereunder (the "1934 Act
Regulations"), and, when read together and with the other
information in the Prospectus, at the time the Registration
Statement becomes effective, at Closing Time and as of each
Representation Date 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, and any documents deemed to be
incorporated by reference in the Prospectus will, when they
are filed with the SEC, comply in all material respects with
the requirements of the 1934 Act Regulations, 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, in the light of
the circumstances under which they are made, not misleading.
(iii) Due Incorporation and Qualification. The Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of
its incorporation with corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Prospectus; and the Company 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 to so qualify and be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company.
(iv) Subsidiaries. The Company has no significant
subsidiaries, as "significant subsidiary" is defined in Rule
405 of Regulation C of the 1933 Act Regulations.
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(v) Accountants. The accountants who issued their reports
on the financial statements included or incorporated by
reference in the Prospectus are independent public
accountants within the meaning of the 1933 Act and the 1933
Act Regulations.
(vi) Financial Statements. The financial statements
and any supporting schedules of the Company included or
incorporated by reference in the Registration Statement and
the Prospectus present fairly the financial position of the
Company as of the dates indicated and the results of its
operations and cash flows for the periods specified; and,
except as stated therein, said financial statements have
been prepared in conformity with generally accepted
accounting principles in the United States (except for
certain footnote disclosures required to be included in
financial statements prepared in accordance with generally
accepted accounting principles) applied on a consistent
basis; and any supporting schedules included in the
Registration Statement present fairly the information
required to be stated therein. In addition, any pro forma
financial statements of the Company and the related notes
thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases
described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement,
Terms Agreement, the Indenture and Debt Securities. This
Agreement has been, and the applicable Terms Agreement as of
its date will be, duly authorized and, upon execution and
delivery by the Underwriters, will be valid and binding
agreements of the Company; the Indenture has been duly
authorized and, upon execution and delivery by the Trustee,
will be a valid and binding obligation of the Company
enforceable in accordance with its terms; the Underwritten
Debt Securities have been, or as of the date of such Terms
Agreement will have been, duly and validly authorized for
issuance, offer and sale pursuant to this Agreement and the
applicable Terms Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement,
the applicable Terms Agreement and the Indenture against
payment of the consideration therefor specified in the
Prospectus or pursuant to any Terms Agreement, the
Underwritten Debt Securities will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general
equity principles; the Underwritten Debt Securities being
sold pursuant to the applicable Terms Agreement and
Indenture will be substantially in the forms heretofore
delivered to the Underwriters and such Underwritten Debt
Securities and the Indenture each will conform, as of each
Representation Date, in all material respects to all
statements relating thereto contained in the Prospectus;
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and each holder of the Underwritten Debt Securities
will be entitled to the benefits provided by the
Indenture.
(viii) Material Changes or Material Transactions. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (a)
there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs
or business prospects of the Company, whether or not arising
in the ordinary course of business and (b) there have been
no material transactions entered into by the Company other
than those in the ordinary course of business.
(ix) No Defaults. The Company is not in violation of
its Restated Articles of Consolidation, as amended, or by-
laws, or in default in the performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a
party or by which it or its properties may be bound; the
execution and delivery of this Agreement and each applicable
Terms Agreement and the consummation of the transactions
contemplated herein and therein have been duly authorized by
all necessary corporate action 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 Company pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company is a party or by
which it may be bound or to which any of the property or
assets of the Company is subject, nor will such action
result in any violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws, of the
Company or any law, administrative regulation or
administrative or court order or decree.
(x) Regulatory Approvals. The Company has made all
necessary filings and obtained all necessary consents or
approvals from the Missouri Public Service Commission in
connection with the issuance and sale of the Underwritten
Debt Securities or will have done so by the time the
Underwritten Debt Securities shall be issued and sold, and
no consent, approval, authorization, order or decree of any
other court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated by this Agreement and each applicable Terms
Agreement except such as may be required under the 1933 Act,
the 1933 Act Regulations or state securities ("Blue Sky")
laws.
(xi) Legal Proceedings; Contracts. Except as may be
set forth in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened against or affecting, the Company
which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company, or might materially and adversely
affect its properties
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or assets or might materially and adversely affect the
consummation of this Agreement or the applicable Terms
Agreement; and there are no contracts or documents of
the Company which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xii) Franchises. The Company holds valid and
subsisting franchises, licenses and permits authorizing it
to carry on the respective utility businesses in which it is
engaged in the territories from which substantially all of
its gross operating revenue is derived.
(xiii) Ratings. The Debt Securities are rated A2 by
Xxxxx'x Investors Service, Inc. (Stable Outlook) and BBB+
(Negative Outlook) by Standard & Poor's Ratings Group or
such other rating as to which the Company shall have most
recently notified the Underwriters pursuant to Section 3(a)
hereof.
(b) Additional Certifications. Any certificate signed
by any director or officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby on the date
of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent
thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments
of the Underwriters to purchase the Underwritten Debt
Securities pursuant to the applicable Terms Agreement shall
be deemed to have been made on the basis of the
representations, warranties and agreements herein contained
and shall be subject to the terms and conditions herein set
forth.
(b) Payment of the purchase price for, and delivery
of, the Underwritten Debt Securities shall be made at the
office of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place or places
as shall be agreed upon by the Underwriters and the Company,
at 10:00 A.M. on the third or fourth business day (unless
postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement, or
such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the
Company (such time and date of payment and delivery each
being herein called "Closing Time"). Payment shall be made
to the Company by wire transfer of immediately available
funds to: UMB Bank, N.A., Kansas City, Missouri ABA
# 000000000, Account # 9800001430, Account of Kansas City
Power & Light Company, against delivery to The Depository
Trust Company for the account of the Underwriters of the
certificate for the Debt Securities to be purchased by them.
The certificate for the Debt Securities shall be registered
in the name of Cede & Co., as nominee of The Depository
Trust Company, and held by the Trustee, as custodian. The
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Company will permit the Underwriters, on or before the
first full business day prior to the Closing Time, to
examine and package for delivery the certificate for
the Debt Securities to be purchased by the Underwriters
at the offices of The Depository Trust Company, New
York, New York.
SECTION 3. Covenants of the Company.
The Company covenants with each Underwriter as
follows:
(a) Notice of Certain Events. The Company will notify
the Underwriters immediately, and confirm the notice in
writing, of (i) the effectiveness of any post-effective
amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the receipt
of any comments from the SEC, (iii) any request by the SEC
for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, (iv) the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any
preliminary prospectus, or of the initiation of any
proceedings for any of such purposes, and (v) any withdrawal
or lowering of the rating assigned by Xxxxx'x Investors
Service, Inc. or Standard & Poor's Rating Group to any debt
securities of the Company or the public announcement by any
Rating Agency that it has under surveillance or review, with
possible negative implications, its rating of such Debt
Securities, but only to the extent such Rating Agency has
notified the Company of such surveillance or review. The
Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary
to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the SEC
and, in the event that it was not, it will promptly file the
Prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Amendments and Supplements. The Company will not:
(i) at any time after the Registration Statement becomes
effective, file any amendment to the Registration Statement
or any amendment or supplement to the Prospectus (including
a prospectus filed pursuant to Rule 424(b) which differs
from the prospectus on file at the time the Registration
Statement becomes effective), or (ii) at any time when
delivery of a Prospectus (exclusive of documents
incorporated therein by reference) is required in connection
with the offering or sale of the Debt Securities, file any
documents pursuant to Section 13, 14 or 15(d) of the 1934
Act, in either case, to which you shall reasonably object or
which shall be reasonably disapproved by counsel for the
Underwriters.
(c) Copies of the Registration Statement. The Company
will deliver to the Underwriters as many signed and
conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including
exhibits
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filed therewith or incorporated by reference therein
and documents incorporated by reference in the
Prospectus) as the Underwriters may reasonably request.
(d) Copies of the Prospectus. The Company will
deliver to each Underwriter, from time to time before the
Registration Statement becomes effective, such number of
copies of the preliminary prospectus as originally filed,
relating to the Underwritten Debt Securities, and of any
amended preliminary prospectus, and will deliver, as soon as
the Registration Statement becomes effective and thereafter
from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented), as
such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1933 Regulations.
(e) Revisions of Prospectus - Material Changes. If at
any time when a prospectus relating to the Underwritten Debt
Securities is required to be delivered under the 1933 Act
any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel
for the Underwriters or counsel for the Company, to amend or
supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by
filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 0000
Xxx) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(g) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Underwriters, to qualify
the Underwritten Debt Securities for offering and sale under
the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may
designate, and will maintain such qualifications in effect
for as long as may be required for the distribution of the
Debt Securities; provided, however, that the Company shall
not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by
the laws of
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each jurisdiction in which the Underwritten Debt
Securities have been qualified as above provided. The
Company will promptly advise the Underwriters of the
receipt by the Company of any notification with respect
to the suspension of the qualification of the
Underwritten Debt Securities for sale in any such state
or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) 1934 Act Filings. The Company, during the period
when the Prospectus is required to be delivered under the
1933 Act, will file promptly all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act.
(i) Restriction on Sale of Securities. Between the
date of the applicable Terms Agreement and the Closing Time
or such other date specified in such Terms Agreement, the
Company will not, without prior written consent of the
Representatives, directly or indirectly, issue, sell, offer
or contract to sell, grant any option for the sale of, or
otherwise dispose of, the Debt Securities (other than the
Underwritten Debt Securities sold pursuant to such Terms
Agreement).
(j) Rule 52 Filing. The Company will timely file any
certificate required by Rule 52 under the Public Utility
Holding Company Act of 1935 in connection with the sale of
the Underwritten Debt Securities.
SECTION 4. Conditions; Obligations.
The obligations of the several Underwriters to
purchase and pay for the Underwritten Debt Securities
pursuant to the applicable Terms Agreement will be subject
to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the
statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its
covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Registration Statement. Prior to the Closing
Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or,
to the knowledge of the Company or the Underwriters, shall
be threatened by the SEC.
(b) Securities Ratings. Prior to the Closing Time,
the rating assigned by Xxxxx'x Investors Service, Inc. or
Standard & Poor's Ratings Group to any debt securities or
preferred stock of the Company as of the date of this
Agreement or the applicable Terms Agreement shall not have
been lowered or placed on what is commonly termed a "watch
list" for possible downgrading.
(c) Material Changes and Transactions. Since the
respective most recent dates as of which information is
given in the Prospectus or since the date of any applicable
Terms Agreement and up to the Closing Time, there shall not
have been any material adverse change in the condition of
the Company, financial or otherwise, except as reflected in
or contemplated by the Prospectus, and, since
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such dates and up to the Closing Time, there shall not
have been any material transaction entered into by the
Company other than transactions contemplated by the
Prospectus and transactions in the ordinary course of
business.
(d) Legal Opinions. At Closing Time, the Underwriters
shall have received the following legal opinions, dated the
Closing Time, and in form and substance satisfactory to the
Underwriters:
(1) Opinion of Company Counsel. The opinion of Ms.
Xxxxxx Sell Xxxx, Senior Vice President - Corporate Services
and Corporate Secretary, or the General Counsel of the
Company (collectively, "Company Legal Officer") to the
effect that:
(i) 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;
(ii) the Company is a public utility duly authorized by its
Restated Articles of Consolidation, as amended, under which
it was organized to carry on the business in which it is
engaged as set forth in the Prospectus; and the Company has
the legal right to function and operate as an electric
utility in the States of Missouri and Kansas;
(iii) this Agreement, the Terms Agreements, if any, and
the Indenture have each been duly authorized, executed and
delivered by the Company and each constitutes a legal, valid
and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other laws affecting
the enforcement of creditors' rights generally; and this
Agreement, the Terms Agreements, if any, and the Indenture
conform as to legal matters with the statements concerning
them made in the Registration Statement and the Prospectus,
and such statements accurately set forth the matters
respecting this Agreement, the Terms Agreements, if any, and
the Indenture required to be set forth in the Registration
Statement and the Prospectus;
(iv) the Underwritten Debt Securities are in due and proper
form; the issue and sale of the Underwritten Debt Securities
by the Company in accordance with the terms of this
Agreement have been duly and validly authorized by the
necessary corporate action; the Underwritten Debt
Securities, when duly executed (which execution may include
facsimile signatures of officers of the Company)
authenticated and delivered to the purchasers thereof
against payment of the agreed consideration therefor, will
constitute legal, valid and binding obligations of the
Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
or other laws affecting
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enforcement of creditors' rights generally; and
the Underwritten Debt Securities conform as to
legal matters with the statements concerning them
made in the Registration Statement and Prospectus,
and such statements accurately set forth the
matters respecting the Underwritten Debt
Securities required to be set forth in the
Registration Statement and Prospectus;
(v) the order of the Missouri Public Service Commission
authorizing the issuance and sale of the Underwritten Debt
Securities has been duly entered and is still in force and
effect, and no further approval, authorization, consent,
certificate or order of any state or federal commission or
regulatory authority is necessary with respect to the issue
and sale of the Underwritten Debt Securities as contemplated
in this Agreement and applicable Terms Agreement;
(vi) the Company holds valid and subsisting franchises,
licenses and permits authorizing it to carry on the
respective utility businesses in which it is engaged in the
territory from which substantially all of its gross
operating revenue is derived;
(vii) the statements contained in the Registration
Statement and Prospectus which are expressed therein to have
been made on the authority of legal counsel to the Company
have been reviewed by him and, as to matters of law and
legal conclusions, are correct;
(viii) the Registration Statement is effective under the
1933 Act, and no proceedings for a stop order are pending
or, to the best of Xx. Xxxx'x knowledge, threatened under
Section 8(d) of the 1933 Act;
(ix) (A) the Registration Statement and the Prospectus
comply as to form in all material respects with the 1933 Act
and the 0000 Xxx and with the 1933 Act Regulations and (B)
the documents incorporated by reference in the Prospectus,
as of the time they were filed with the SEC, complied as to
form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations, it being understood
that Xx. Xxxx need express no opinion or belief as to the
financial statements and other financial data included in
the Registration Statement, Prospectus or such documents;
(x) the Indenture has been qualified under the 1939 Act;
(xi) To the best of the Company Legal Officer's knowledge,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company is a party or of which any of its property is the
subject which are not described in the Registration
Statement, including ordinary
12
routine litigation incidental to the business of
the Company, are, considered in the aggregate, not
material to the financial condition of the
Company;
(xii) To the best of the Company Legal Officer'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 contract,
indenture, mortgage, loan agreement, note or lease to which
it is a party or by which it or any of its properties may be
bound. The execution and delivery of this Agreement and
applicable Terms Agreement or the consummation by the
Company of the transactions contemplated by this Agreement
and applicable Terms Agreement and the incurrence of the
obligations therein contemplated, 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 Company pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
or other instrument known to such counsel and to which the
Company is a party or by which it may be bound or to which
any of the property or assets of the Company is subject, or
any law, administrative regulation or administrative or
court 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 Restated Articles of Consolidation, as
amended, or by-laws of the Company;
(xiii) To the best of the Company Legal Officer'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
Registration Statement or the Prospectus or to be filed as
exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto, the descriptions thereof or references thereto are
correct, and no default exists in the due performance or
observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instruments described,
referred to, filed or incorporated by reference.
(2) Opinion of Counsel to the Underwriters. The
letter of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in which such counsel shall set forth their
opinions with respect to the issuance and sale of the
Underwritten Debt Securities, the Registration Statement,
the Prospectus and other related matters as the Underwriters
may reasonably require, and the Company shall have furnished
to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
13
(3) Additional Statements. In giving their opinions
required by subsection (d)(1) and (d)(2) of this Section,
the Company Legal Officer and Xxxxx Xxxxxxxxxx LLP shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement, at the time it became effective, and
if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the
SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective
or at the time of the most recent such filing, and at the
Closing Time, contains or contained an untrue statement of a
material fact or omits or omitted to state a material fact
required to be stated therein or necessary in order to make
the statements therein not misleading or that the
Prospectus, as of its date, as amended or supplemented at
the Closing Time, contains an untrue statement of a material
fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Officer's Certificate. At the Closing Time the
Underwriters shall have received a certificate of the
President or Vice President and the chief financial or chief
accounting officer of the Company, dated the Closing Time,
to the effect that (i) since the respective dates as of
which information is given in the Registration Statement and
the Prospectus or since the date of any applicable Terms
Agreement, there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business,
(ii) the other representations and warranties of the Company
contained in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of
the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the SEC.
(f) Comfort Letters
(1) . (1) At the time of the execution of each
applicable Terms Agreement, the Underwriters shall have
received a letter from PricewaterhouseCoopers LLP, dated as
of the date thereof and in form and substance satisfactory
to the Underwriters, addressed to the Underwriters
containing statements and information of the type ordinarily
included in an accountants' SAS 72 comfort letter.
(2) At the Closing Time, the Underwriters shall have
received from PricewaterhouseCoopers LLP a letter, dated the
Closing Time, to the effect that such accountants reaffirm
the statements made in the letter furnished pursuant to
Section (4)(f)(1), except that the specified date referred
to shall be a date not more than three days prior to the
Closing Time.
(g) Other Documents. At the Closing Time, counsel to
the Underwriters shall have been furnished with such
documents and opinions as such
14
counsel may reasonably require for the purpose of
enabling such counsel to pass upon the issuance and
sale of the Debt Securities as herein contemplated and
related proceedings, or in order to evidence the
accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale
of the Debt Securities as herein contemplated shall be
satisfactory in form and substance to the Underwriters
and to counsel to the Underwriters.
If any condition specified in subdivisions (a)
through (g) of this Section 4 shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by the Underwriters by notice to
the Company at any time prior to the Closing Time, and such
termination shall be without liability of any party to any
other party, except Sections 5 and 6 and the provisions
concerning payment of expenses under Section 7 hereof shall
survive any such termination and remain in full force and
effect.
SECTION 5. Indemnification.
(a) Indemnification of the Underwriters. The Company
agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the
preliminary prospectus or Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue
statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with
written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement,
preliminary prospectus or the Prospectus;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
15
(iii) against any and all expense whatsoever, as
incurred, (including the fees and disbursements of counsel
chosen by such Underwriter) reasonably incurred in
investigating, preparing or defending against any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Indemnification of Company. Each Underwriter
severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the
Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement
(or any amendment thereto) or the preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for
use in the Registration statement (or any amendment thereto)
or the preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees
and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection
with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 6. Contribution.
In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in Section 5 hereof is for any reason
held to be unavailable to or insufficient to hold harmless
the indemnified parties although applicable in accordance
with its terms, the Company and each Underwriter shall
contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and such
Underwriter, as incurred, in such proportions that such
Underwriter is responsible for that portion represented by
the percentage that the total commissions and underwriting
discounts received by such Underwriter to the date of such
liability bears to the total sales price from the sale of
Underwritten Debt Securities sold to or through such
Underwriter pursuant to the applicable Terms Agreement to
the date of such liability, and the Company is responsible
for the balance; provided, however, that no person guilty of
16
fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
person, if any, who controls such Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as
the Company.
SECTION 7. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the
applicable Terms Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and
any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Debt Securities;
(d) The fees and disbursements of the Company's
accountants and counsel;
(e) The qualification of the Debt Securities under
state securities laws in accordance with the provisions of
Section 3(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal
Investment Survey;
(f) The printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of
the Prospectus and any amendments or supplements thereto,
and the delivery by the Underwriters of the Prospectus and
any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Debt
Securities;
(g) Any fees charged by rating agencies for the rating
of the Debt Securities;
(h) The fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc.;
(i) The cost of preparing, and providing any CUSIP or
other identification number for, the Debt Securities; and
17
(j) The fees and expenses of the Trustee and its
counsel.
The Underwriters shall be responsible for the fees
and disbursements of their counsel, Xxxxx Xxxxxxxxxx LLP,
except to the extent provided in Section 7(e).
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or the applicable Terms
Agreement or in certificates of officers of the Company
submitted pursuant hereto or thereto, shall remain operative
and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or
any controlling person of the Underwriters, or by or on
behalf of the Company, and shall survive the delivery of and
payment for any of the Underwritten Debt Securities.
SECTION 9. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any Terms Agreement) may be terminated for any
reason, at any time by either the Company or the
Representatives, upon the giving of 30 days' written notice
of such terminations to the other party hereto.
(b) Termination of a Terms Agreement. The
Representatives may terminate any applicable Terms
Agreement, immediately upon notice to the Company, at any
time prior to the Closing Time (i) if there has been, since
the date of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the
ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation
of hostilities or other national or international calamity
or crisis the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the
Underwritten Debt Securities or enforce contracts for the
sale of the Underwritten Debt Securities, or (iii) if
trading in any securities of the Company has been suspended
by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New
York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by
either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall
have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any
nationally recognized securities rating agency to any debt
securities of the Company as of the date of the applicable
Terms Agreement shall have been lowered since that date or
if any such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the
Company, or (v) if there shall have come to the attention of
the Representatives
18
any facts that would cause the Representatives to
believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Underwritten
Debt Securities, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances existing at the time of such
delivery, not misleading.
(c) General. If the Underwriters shall so terminate
this Agreement, or the applicable Terms Agreement pursuant
to Section 9(b), such termination shall be without liability
of any party to any other party except for any expenses to
be paid or reimbursed by the Company pursuant to Section 7
and provided further that Sections 5 and 6 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One of the Underwriters.
If one or more of the Underwriters shall fail at
the Closing Time to purchase the principal amount of
Underwritten Debt Securities which it or they are obligated
to purchase under the applicable Terms Agreement (the
"Defaulted Debt Securities"), then the remaining
Underwriters (the "Non-Defaulting Underwriter") shall have
the right, within 24 hours thereafter, to make arrangements
to purchase all, but not less than all, of the Defaulted
Debt Securities upon the terms herein set forth. If,
however, during such 24 hours the Non-Defaulting
Underwriters shall not have completed such arrangements for
the purchase of all of the Defaulted Debt Securities, then
this Agreement shall terminate without any liability on the
part of the Company or the Non-Defaulting Underwriters.
Nothing in this Section 10 and no action taken pursuant to
this Section 10 shall relieve any Defaulting Underwriter
from liability in respect of any default of such Underwriter
under this Agreement. In the event of a default by any
Underwriter as set forth in this Section 10, either the Non-
Defaulting Underwriters or the Company shall have the right
to postpone the Closing Time for a period not exceeding
seven days in order that any required changes in the
Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11. Notices.
Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be in
writing, either delivered by hand, by mail or by telex,
telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Kansas City Power & Light Company
0000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Treasurer
Facsimile: (000) 000-0000
19
If to the Underwriters:
ABN AMRO Incorporated
000 X. Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
and
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
or at such other address as such party may designate from
time to time by notice duly given in accordance with the
terms of this Section 11.
SECTION 12. Governing Law.
This Agreement, any applicable Terms Agreement and
all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be
performed in such State. Any suit, action or proceeding
brought by the Company against the Underwriters in
connection with or arising under this Agreement or such
Terms Agreement shall be brought solely in the state or
federal court of appropriate jurisdiction located in the
Borough of Manhattan, The City of New York.
SECTION 13. Parties.
This Agreement and the applicable Terms Agreement
shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this
Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and
the controlling persons and officers and directors referred
to in Sections 5 and 6 and their heirs and legal
representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or such Terms
Agreement or any provision herein contained. This Agreement
and such Terms Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit
of the parties hereto and their respective successors and
said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of
Debt Securities from any of the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
20
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Company a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement
between the Underwriters and the Company in accordance with
its terms.
Very truly yours,
KANSAS CITY POWER & LIGHT COMPANY
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President-
Finance, Chief Financial
Officer and Treasurer
Accepted:
ABN AMRO INCORPORATED
By: /s/Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Managing Director
BNY CAPITAL MARKETS, INC.
By: /s/Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
