Exhibit 1(b)
EMPIRE DISTRICT ELECTRIC TRUST __________
TRUST PREFERRED SECURITIES
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
EMPIRE DISTRICT ELECTRIC TRUST __________
STANDARD PURCHASE PROVISIONS -- TRUST PREFERRED SECURITIES
From time to time, Empire District Electric Trust [ ], a statutory business
trust formed under the laws of the State of Delaware (the "Trust"), may enter
into purchase agreements that provide for the sale of a designated series of
trust preferred securities to the purchaser or purchasers named therein. The
standard provisions set forth herein may be incorporated by reference in any
such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is herein sometimes
referred to as this "Agreement." Unless otherwise defined herein, terms defined
in the Purchase Agreement are used herein as therein defined.
1. Introductory. The Trust and The Empire District Electric Company, a
Kansas corporation, as depositor of the Trust and as guarantor (the "Company"
and, together with the Trust, the "Issuers") propose that the Trust issue and
sell from time to time trust preferred securities registered under the
registration statement referred to in Section 3(a), representing beneficial
interests in the Trust ("Preferred Securities") guaranteed on a junior
subordinated basis by the Company as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement to be dated as of the Closing Date (as defined below) (the
"Guarantee") between the Company and Xxxxx Fargo Bank Minnesota, National
Association, as trustee (the "Guarantee Trustee"). The particular terms of the
Preferred Securities, including distribution rate, liquidation amount, maturity
and redemption provisions will be set forth in the Purchase Agreement. The Trust
is to purchase, with the proceeds of the sale of the Preferred Securities and
the sale of its common securities (the "Common Securities") to the Company, a
series of corresponding junior subordinated debentures (the "Corresponding Debt
Securities") of the Company. The Corresponding Debt Securities will be issued
under an Indenture, dated as of September 10, 1999 ("Original Indenture"), by
and between the Company and Xxxxx Fargo Bank Minnesota, National Association, as
trustee (the "Indenture Trustee"), as supplemented and amended, including by a
Securities Resolution (as defined in the Indenture) pertaining to the particular
series of Corresponding Debt Securities involved in the offering (the Original
Indenture as so amended and supplemented, the "Indenture") and will have terms
corresponding to the applicable series of Preferred Securities and other terms,
with all of such terms being determined at the time of sale and being as set
forth in the Securities Resolution relating to such series of Corresponding Debt
Securities. The Preferred Securities referred to in Schedule A of the Purchase
Agreement are hereinafter referred to as the "Purchased Preferred Securities."
The firm or firms, as the case may be, which agree to purchase the Purchased
Preferred Securities are hereinafter referred to as the "Purchasers" of such
Purchased Preferred Securities. The terms "you" and "your" refer to those
Purchasers (or the Purchaser) who sign the Purchase Agreement either on
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behalf of themselves (or itself) only or on behalf of the several Purchasers
named in Schedule A thereto, as the case may be. Purchased Preferred Securities
to be purchased by Purchasers are herein referred to as "Purchasers' Preferred
Securities."
2. Sale and Delivery of the Preferred Securities. Subject to the terms and
conditions set forth in this Agreement, the Issuers will deliver the Purchasers'
Preferred Securities to you for the account of the Purchasers, at the place set
forth in the Purchase Agreement against payment of the purchase price therefor
by wire transfer or certified or official bank check or checks in immediately
available funds or clearing house funds payable to the order of the Trust, all
as set forth in the Purchase Agreement, at the time set forth in the Purchase
Agreement or at such other time not later than seven full business days
thereafter as you and the Issuers determine, such time being herein referred to
as the "Closing Date." The Trust agrees to make available to you for inspection
and packaging at the place set forth in the Purchase Agreement, at least one
full business day prior to the Closing Date, the Purchasers' Preferred
Securities so to be delivered in good delivery form and in such denominations
and registered in such names as you shall have requested, all such requests to
have been made in writing at least three full business days prior to the Closing
Date, or if no such request is made, registered in the names of the several
Purchasers as set forth in Schedule A to the Purchase Agreement.
3. Representations and Warranties of the Issuers. Each of the Issuers
jointly and severally represents and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Preferred Securities, including a prospectus and all
documents incorporated by reference therein, has been filed on Form S-3
with the Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, including the prospectus supplement
with respect to the offering of Purchased Preferred Securities referred to
in Section 2 (the "Prospectus Supplement") and all prior amendments and
supplements thereto (other than supplements and amendments relating to
securities that are not Purchased Preferred Securities), including all
documents filed as a part thereof or incorporated therein pursuant to Item
12 of Form S-3 (other than the Statements of Eligibility and Qualification
of the Trustees (the "Forms T-1")), is hereinafter referred to as the
"Registration Statement" and such prospectus, as so amended or supplemented
(including all material so incorporated by reference therein) in the form
first filed by the Issuers pursuant to Rule 424(b) under the Act is
hereinafter referred to as the "Prospectus."
(b) The Registration Statement and the Prospectus conform in all
respects to the requirements of the Securities Act of 1933, as amended
("Act"), the
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Trust Indenture Act of 1939, as amended ("Trust Indenture Act"), and the
pertinent published rules and regulations ("Rules and Regulations") of the
Commission, and none of such documents includes any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements or omissions in either of
such documents based upon written information furnished to the Issuers by
any Purchaser specifically for use therein. The documents incorporated by
reference in the Registration Statement or the Prospectus pursuant to Item
12 of Form S-3 of the Act, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the pertinent
published rules and regulations thereunder (the "Exchange Act Rules and
Regulations") and any additional documents deemed to be incorporated by
reference in the Prospectus will, when they are filed with the Commission,
comply in all material respects with the requirements of the Exchange Act
and the Exchange Act Rules and 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 light of
the circumstances under which they were made, not misleading.
(c) 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 with the power and authority to enter into and
perform its obligations under this Agreement, the Preferred Securities and
the Trust Agreement (as defined below) and 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 Agreement (the "Trust Agreement") between the Company and the
trustees named therein (the "EDE Trust Trustees" and, together with the
Indenture Trustee and the Guarantee Trustees, the "Trustees") and the
agreements and instruments contemplated by the Trust Agreement and the
Prospectus.
4. Agreements of the Issuers. Each of the Issuers jointly and severally
agrees with the several Purchasers that:
(a) The Issuers will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Preferred Securities, and will furnish you a copy thereof prior
to the filing thereof with the Commission.
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(b) The Issuers will furnish to you copies of the registration
statement relating to the Preferred Securities as originally filed and all
amendments thereto (at least one of which will be signed and will include
all exhibits except those incorporated by reference to previous filings
with the Commission), each related prospectus, the Prospectus, and all
amendments and supplements to such documents (except supplements relating
to Preferred Securities that are not Purchased Preferred Securities), in
each case as soon as available and in such quantities as you reasonably
request for the purposes contemplated by the Act.
(c) If at any time when a prospectus relating to the Purchased
Preferred Securities is required to be delivered under the Act or the Rules
and Regulations, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which made, not
misleading, or if it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the Issuers
will promptly notify the Purchasers and promptly prepare and file with the
Commission an amendment or supplement to the Registration Statement or any
appropriate filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or an amendment which will effect
such compliance, and deliver in connection therewith, such Prospectus or
amendments or supplements to the Purchasers in such quantity as may be
necessary to permit compliance with the requirements of the Act and the
Rules and Regulations; provided that the Issuers shall be so obligated only
so long as the Issuers are notified of unsold allotments (failure by the
Purchasers to so notify the Issuers cancels the Issuers' obligation under
this Section 4(c)); and provided further that any such Prospectus or
amendment or supplement required later than nine months from the date
hereof shall be furnished at the Purchasers' sole expense.
(d) The Issuers will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Preferred Securities
for offering and sale under the securities laws of any state or
jurisdiction of the United States as the Purchasers may reasonably request
and will use its best efforts to continue such qualification in effect so
long as required for the distribution of the Purchased Preferred
Securities; provided, however, that neither of the Issuers shall be
required to qualify as a foreign corporation, or to file a general consent
to service of process, in any such state or jurisdiction or to comply with
any other requirement deemed by the Issuers to be unduly burdensome.
(e) The Company will make generally available to its security holders
as soon as practicable an earning statement (as contemplated by Rule 158
under the
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Act) covering a period of twelve months after the effective date of the
Registration Statement.
(f) For a period of three years, the Company will furnish to you
copies of any report or definitive proxy statement which the Company shall
file with the Commission under the Exchange Act, and copies of all reports
and communications which shall be sent to stockholders generally, at or
about the time such reports and other information are first furnished to
stockholders generally.
(g) The Trust will apply the net proceeds from the offering of the
Purchased Preferred Securities as set forth under the caption "Use of
Proceeds" in the Prospectus Supplement.
(h) If a public offering of the Purchased Preferred Securities is to
be made, neither of the Issuers will offer or sell any of its other
securities which are substantially similar to the Purchased Preferred
Securities or the Corresponding Debt Securities prior to ten business days
after the Closing Date without the consent of the Purchasers.
5. Expenses. The Issuers and the Purchasers agree as follows:
(a) The Issuers, jointly and severally, whether or not the
transactions contemplated hereunder are consummated, will (except as
provided in Section 4(c) hereof) pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder,
including without limitation, all costs and expenses in connection with (i)
the preparation and filing of the Registration Statement, Prospectus, Trust
Agreement, Guarantee and Indenture and any supplements or amendments
thereto; (ii) the preparation, issuance and delivery to the Purchasers of
the Purchasers' Preferred Securities and the preparation, issuance and
delivery to the Trust of the Corresponding Debt Securities; (iii) the
listing of the Purchased Preferred Securities on the New York Stock
Exchange; (iv) the reproduction or printing and mailing in reasonable
quantities of the Registration Statement, amendments thereto, each
preliminary prospectus, the Prospectus and any amendments or supplements
thereto, this Agreement, any Blue Sky memoranda and legal investment survey
delivered to the Purchasers; (v) reasonable filing fees and expenses
(including legal fees and disbursements,
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not in excess of $5,000) incurred in connection with the qualification of
the Purchased Preferred Securities under the Blue Sky or securities laws of
the various states, and the preparation of Blue Sky memoranda and legal
investment survey for the offering; (vi) the fees and expenses of the
accountants and the counsel for the Issuers; (vii) the fees and expenses of
the transfer agent and registrar for the Purchased Preferred Securities;
(viii) the fees of the Trustees and any agent of the Trustees (including
legal fees and disbursements, if any, of counsel to the Trustees); and (ix)
all other costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically provided for in
this Section.
(b) The Purchasers will pay (i) the fees and disbursements of their
respective counsel, except as set forth in Section 5(a) above and (ii)
their own out-of-pocket expenditures.
6. Conditions of the Purchasers' Obligations. The obligations of the
Purchasers to purchase and pay for the Purchasers' Preferred Securities shall be
subject in their discretion to the accuracy of and compliance in all material
respects with the representations and the warranties of the Issuers herein
contained as of the date hereof and the Closing Date, to the performance by the
Issuers of their obligations hereunder and to the following additional
conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings therefor initiated or threatened
by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of
Anderson, Byrd, Xxxxxxxx, Xxxxxxxx & Xxxxxxxx, Kansas counsel for the
Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Corresponding Debt Securities and the Guarantee have
been duly authorized, executed, authenticated, issued and delivered by
the Company and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture and the
Guarantee except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding instrument of the Company
enforceable in accordance with its terms except as the same may be
limited by bankruptcy, insolvency, reorganization or
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other laws relating to or affecting the enforcement of creditors'
rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the
Corresponding Debt Securities conform as to legal matters in all
material respects to the descriptions thereof contained in the
Prospectus;
(v) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preferred Securities, the Corresponding Debt
Securities, the Common Securities and the Guarantee have been
obtained; any conditions in such approvals required to be satisfied
prior to the issuance of the Purchased Preferred Securities, the
Corresponding Debt Securities, the Common Securities and the Guarantee
have been duly satisfied; such approvals are in full force and effect;
and no further approval, authorization, consent or other order of any
public board or body in the State of Kansas is legally required for
the issuance, sale, delivery and performance of the Purchased
Preferred Securities, the Corresponding Debt Securities, the Common
Securities and the Guarantee or the execution, delivery and
performance by the Issuers of the Securities Resolution or this
Agreement (it being understood that such counsel need express no
opinion as to any approvals which may be required under the securities
acts or Blue Sky laws of said state); and
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of
Xxxxxxx, Xxxxx & Xxxxx, P.C., Missouri counsel for the Issuers, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in the States of Arkansas, Missouri and
Oklahoma, which are the only jurisdictions (other than Kansas) in
which it owns or leases substantial properties or in which the conduct
of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises
which are necessary to authorize it to carry on the utility businesses
in which it is engaged as described in the Prospectus;
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(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) Neither the issuance, sale, delivery and performance of the
Corresponding Debt Securities or the Guarantee nor the execution,
delivery and performance by the Company of this Agreement, the Trust
Agreement or the Securities Resolution will conflict with, violate or
result in breach of any Missouri law or administrative regulation or
any court decree known to such counsel applicable to the Company (it
being understood that such counsel need express no opinion as to
matters subject to the jurisdiction of the Public Service Commission
of the State of Missouri, the Corporation Commission of Oklahoma, the
State Corporation Commission of the State of Kansas or the Arkansas
Public Service Commission or as to the securities or Blue Sky law of
any jurisdiction), conflict with or result in a breach of any of the
terms, conditions or provisions of the Restated Articles of
Incorporation, as amended, or By-Laws, as amended, of the Company or
of any agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or constitute a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company; and
(v) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Issuers, such
counsel have no reason to believe that either the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
as of their respective effective or issue dates, contained any untrue
statement of material fact or omitted to state any material fact
necessary to make the statements therein not misleading; the
descriptions in the Registration Statement and Prospectus of contracts
and other documents are accurate and fairly present the information
therein shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the Prospectus by
Item 103 of Regulation S-K under the Act which are not described as so
required, nor of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus pursuant to
Item 11 of Form S-3 or to be filed as exhibits to the Registration
Statement pursuant to Item 601 of Regulation S-K which are not
described and filed as so required; it being understood that such
counsel need express no opinion as to the financial statements or
other financial or statistical information contained in the
Registration Statement or the Prospectus.
In rendering such opinion, Xxxxxxx, Xxxxx & Xxxxx, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon
the opinion of
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Xxxxxxxx, Xxxx, Xxxxxxxx, Xxxxxxxx & Xxxxxxxx referred to in paragraph (b)
above and, as to all matters covered thereby, upon the opinion of Brydon,
Xxxxxxxxxx & England, Professional Corporation referred to in paragraph (d)
below.
(d) You shall have received an opinion, dated the Closing Date, of
Brydon, Xxxxxxxxxx & England, Professional Corporation, special regulatory
counsel for the Issuers, to the effect that no approval, authorization,
consent or other order of any public board or body in the States of
Missouri, Oklahoma or Arkansas is legally required for the issuance, sale,
delivery and performance of the Purchased Preferred Securities, the
Corresponding Debt Securities, the Common Securities or the Guarantee or
the execution, delivery and performance by the Issuers of the Securities
Resolution, the Trust Agreement or this Agreement (it being understood that
such counsel need express no opinion as to any approvals which may be
required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Issuers, to the effect that:
(i) The Corresponding Debt Securities and the Guarantee have been
duly authorized, executed, authenticated, issued and delivered by the
Company and constitute valid and legally binding obligations of the
Company entitled to the benefits and security provided by the
Indenture and the Guarantee except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly authorized, executed and delivered by the Company, has
been duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument of the Company enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the
Corresponding Debt Securities conform as to legal matters in all
material respects to the descriptions thereof contained in the
Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preferred Securities, the Corresponding Debt
Securites, the Common Securities and the Guarantee have been obtained,
and such counsel knows of
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no approval of any other governmental regulatory body which is legally
required in connection therewith (other than any approvals required
under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the Registration Statement
and the Prospectus, and each amendment or supplement thereto (except,
in each case, as to the financial statements or other financial or
statistical information included therein and the Forms T-1 of the
Trustees, as to which such counsel need not express an opinion), as of
their respective effective or issue dates, appeared to comply as to
form in all material respects with the requirements of Form S-3, the
Trust Indenture Act and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and
(vii) The statements made in the Prospectus under the caption
"United States Taxation," to the extent they constitute matters of law
or legal conclusions, have been reviewed by such counsel and are
accurate and correct in all material respects and fairly present the
information set forth therein.
In rendering such opinion Xxxxxx Xxxxxx & Xxxxxxx may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Anderson, Byrd,
Xxxxxxxx, Xxxxxxxx & Xxxxxxxx; Xxxxxx, Xxxxxxxxxx & England, Professional
Corporation; and Xxxxxxx, Xxxxx & Xxxxx, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Issuers, counsel for the Issuers, representatives of the independent
accountants of the Issuers and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, or any
subsequent amendments or supplements thereto, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers,
counsel and other representatives of the Issuers), no facts have come to
the attention of such counsel which lead such counsel to believe
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that either the Registration Statement or the Prospectus, and any
subsequent amendments or supplements thereto, as of their respective
effective or issue dates, contained an untrue statement of a material fact
or omitted 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 (it being understood that such
counsel need make no comment with respect to the financial statements and
other financial and statistical information included in the Registration
Statement or Prospectus or any such amendments or supplements or the Forms
T-1 of the Trustees).
(f) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx Xxxxxx LLP, counsel for the Purchasers, to the effect that:
(i) The Corresponding Debt Securities and the Guarantee have been
duly authorized, executed, authenticated, issued and delivered by the
Company and constitute valid and legally binding obligations of the
Company entitled to the benefits and security provided by the
Indenture and the Guarantee except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee
has been duly authorized, executed and delivered by the Company, has
been duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding instrument of the Company enforceable in
accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the
Corresponding Debt Securities conform as to legal matters in all
material respects to the descriptions thereof contained in the
Prospectus;
(iv) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Preferred Securities, the Corresponding Debt
Securities, the Common Securities, and the Guarantee have been
obtained, and such counsel knows of no approval of any other
governmental regulatory body which is legally required in connection
therewith (other than any approvals required under the securities acts
or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the
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effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto (except, in each
case, as to the financial statements or other financial or statistical
information included therein and the Forms T-1 of the Trustees, as to
which such counsel need not express an opinion), as of their
respective effective or issue dates, appeared to comply as to form in
all material respects with the requirements of Form S-3, the Trust
Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion Xxxxxxxx Xxxxxx LLP may rely, as to the
incorporation of the Company and as to all other matters governed by the
laws of the States of Kansas, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of Anderson, Byrd, Xxxxxxxx,
Xxxxxxxx & Xxxxxxxx; Xxxxxx, Xxxxxxxxxx & England, Professional
Corporation; and Xxxxxxx, Xxxxx & Xxxxx, P.C. referred to above. Xxxxxxxx
Xxxxxx LLP need not express any opinion with respect to the matters set
forth in paragraphs (i), (ii) and (iv) of the opinion of Xxxxxxx, Xxxxx &
Xxxxx, P.C. referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Issuers, counsel for the Issuers, representatives of the independent
accountants of the Issuers and representatives of the Purchasers at which
the contents of the Registration Statement and Prospectus, and any
subsequent amendments or supplements thereto, and related matters were
discussed and reviewed. Such counsel shall also state that, on the basis of
such participation (relying as to materiality to a large extent upon the
opinions of officers, counsel and other representatives of the Issuers),
but without independently verifying, passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, or any subsequent
amendments or supplements thereto, no facts have come to the attention of
such counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, and any subsequent amendments or
supplements thereto, as of their respective effective or issue dates,
contained an untrue statement of a material fact or omitted 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 (it being understood that such counsel need make no
comment with respect to the financial statements and other financial and
statistical information included in
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the Registration Statement or Prospectus or any such amendments or
supplements or the Forms T-1 of the Trustees).
(g) You shall have received an opinion, dated the Closing Date, of
Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware Counsel for the Issuers,
to the effect that:
(i) The Trust is a duly formed and validly existing statutory
business trust in good standing under the Business Trust Act of the
State of Delaware with the business trust power and authority to enter
into and perform its obligations under this Agreement and the Trust
Agreement, to issue the Purchased Preferred Securities and the Common
Securities and to own property and conduct its business as described
in the Prospectus;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of this Agreement,
and the performance by the Trust of its obligations hereunder, have
been duly authorized by all necessary business trust action on the
part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the EDE Trust Trustees, enforceable
against the Company and the EDE Trust Trustees, in accordance with its
terms except as the same may be limited by bankruptcy, insolvency,
reorganization and other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity;
(iv) The Common Securities have been duly authorized for issuance
by the Trust and upon issuance and delivery by the Trust to the
Company against payment therefor as described in the Trust Agreement,
will be duly and validly issued and, subject to the qualifications set
forth herein, fully paid and non-assessable beneficial interests in
the Trust; the issuance of the Common Securities is not subject to
preemptive or other similar rights under the Trust Agreement or the
Business Trust Act; provided that such counsel may note that the
holders of Common Securities may be required to make payment or
provide indemnity or security as set forth in the Trust Agreement;
(v) The Purchased Preferred Securities have been duly authorized
for issuance by the Trust, and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued
and, subject to the qualifications set forth herein, fully paid and
non-assessable beneficial interests in the Trust; the issuance of the
Purchased Preferred Securities is not subject to preemptive or other
similar rights under the Trust Agreement or the Business
-14-
Trust Act; and the holders of the Purchased Preferred Securities will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; provided that such
counsel need express no opinion as to any holder of a Purchased
Preferred Security that is, was or becomes a named Trustee of the
Trust. Such counsel may note that the holders of the Purchased
Preferred Securities may be required to make payment or provide
indemnity or security as set forth in the Trust Agreement;
(vi) The issuance and sale by the Trust of the Purchased
Preferred Securities and the Common Securities, the execution,
delivery and performance by the Trust of the Agreement, the
consummation by the Trust of the transactions contemplated therein and
the compliance by the Trust with its obligations thereunder do not
violate (a) any of the provisions of the Certificate of Trust of the
Trust or the Trust Agreement or (b) any applicable Delaware law or
Delaware administrative regulation;
(vii) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the
Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State
of Delaware, no authorization, approval, consent or order of any
Delaware court or Delaware governmental authority or Delaware agency
is required to be obtained by the Trust solely as a result of the
issuance and sale of the Purchased Preferred Securities, the
consummation by the Trust of the transactions contemplated herein or
the compliance by the Trust of its obligations hereunder, except such
as have been obtained and such as may be required by the securities
laws of the State of Delaware (as to which such counsel need express
no opinion); and
(viii) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than having a Delaware trustee as required by the
Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State
of Delaware, and assuming that the Trust is treated as a grantor trust
for federal income tax purposes and that the holders of the Purchased
Preferred Securities are viewed for federal income tax purposes as
owners of either all of, or their liquidation and accrued but unpaid
share of, the Corresponding Debt Securities held by the Trust, the
holders of the Purchased Preferred Securities (other than those
holders of the Purchased Preferred Securities, or persons who are
partners or S corporation shareholders for
-15-
federal income tax purposes in such holders of Purchased Preferred
Securities, who reside or are domiciled in the State of Delaware or
who are otherwise subject to income taxation in the State of Delaware)
will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and
the Trust will not be liable for any income tax imposed by the State
of Delaware (in rendering the opinion expressed in this paragraph
(viii), such counsel need express no opinion concerning the securities
laws of the State of Delaware).
(h) You shall have received a letter or letters from the Company's
independent accountant(s), dated the Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning
of the Act and the Rules and Regulations, and stating in effect that:
(i) In their opinion, the financial statements and schedules
examined by them which are included in the Company's most recent
Annual Report on Form 10-K, which is incorporated by reference in the
Prospectus (the "Form 10-K") comply as to form in all material
respects with the accounting requirements of the Act and the Rules and
Regulations and the Exchange Act and the Exchange Act Rules and
Regulations;
(ii) On the basis of procedures specified in such letter(s) (but
not an examination in accordance with generally accepted auditing
standards), including reading the minutes of meetings of the
stockholders and the Board of Directors of the Company since the end
of the year covered by the Form 10-K as set forth in the minute books
through a specified date not more than five days prior to the Closing
Date, reading the unaudited interim financial statements of the
Company incorporated by reference in the Prospectus and the latest
available unaudited interim financial statements of the Company, and
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing has come
to their attention that has caused them to believe that (1) any
unaudited financial statements incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
accounting requirements of the Act and the Rules and Regulations and
the Exchange Act and the Exchange Act Rules and Regulations; (2) the
latest available financial statements, not incorporated by reference
in the Prospectus, have not been prepared on a basis substantially
consistent with that of the audited financial statements incorporated
in the Prospectus; (3) for the period from the closing date of the
latest income statement incorporated by reference in the Prospectus to
the closing date of the latest available income statement read by them
there were any decreases, as compared with the corre-
-16-
sponding period of the previous year, in operating revenues, operating
income, net income or in ratio of earnings to fixed charges; or (4) at
a specified date not more than five business days prior to the Closing
Date, there was any change in the capital stock or long-term debt of
the Company or, at such date, there was any decrease in net assets of
the Company as compared with amounts shown in the latest balance sheet
incorporated by reference in the Prospectus, except in all cases for
changes or decreases which the Prospectus discloses have occurred or
may occur, or which are described in such letter; and
(iii) Certain specified procedures have been applied to certain
financial or other statistical information (to the extent such
information was obtained from the general accounting records of the
Company) set forth or incorporated by reference in the Prospectus and
that such procedures have not revealed any disagreement between the
financial and statistical information so set forth or incorporated and
the underlying general accounting records of the Company, except as
described in such letter.
(i) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Issuers, signed on behalf of
the Company by the President or the Vice President - Finance and signed on
behalf of the Trust by an administrative Trustee, stating in effect that to
the best knowledge of the officer and Trustee signing such certificate and
except as may be reflected in or contemplated by the Registration Statement
or stated in such certificate (i) the representations and warranties of the
Issuers contained in Section 3 of this Agreement are correct and the
Issuers have complied with all the agreements and satisfied all the
conditions to be performed or satisfied on their part at or prior to the
Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending, or, to the knowledge of the signers
thereof, are contemplated under the Act; and (iii) subsequent to the
respective dates as of which information is given in the Registration
Statement and Prospectus, as supplemented or amended, there has been no
material adverse change in the financial position or results of operations
of the Issuers.
(j) Trading in securities on the New York Stock Exchange shall not
have been suspended nor shall minimum prices have been established on such
Exchange; a banking moratorium shall not have been declared by New York or
Missouri or United States authorities; and there shall not have been an
outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States which, in your reasonable judgment, makes it impracticable to
proceed with the public offering or the
-17-
delivery of the Purchasers' Preferred Securities on the terms and in the
manner contemplated in the Prospectus.
(k) If a public offering of the Purchasers' Preferred Securities is to
be made, subsequent to the date of this Agreement and prior to the Closing
Date, no rating of any of the Company's debt securities by any nationally
recognized rating agency shall have been lowered by such agency.
(l) The representations and warranties of the Issuers herein shall be
true and correct in all material respects as of the Closing Date and all
agreements herein contained to be performed on the part of the Issuers at
or prior to the Closing Date shall have been so performed.
(m) The Purchased Preferred Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of
issuance.
(n) You shall have been furnished such additional certificates and
other evidence as you or your counsel may reasonably request showing
fulfillment of the conditions contained in this Section 6 and existence of
the facts to which the representations and warranties contained in Section
3 hereof relate.
7. Indemnification.
(a) Each of the Issuers, jointly and severally, will indemnify and hold
harmless each Purchaser and each person, if any, who controls any Purchaser
within the meaning of the Act against the losses, claims, damages or
liabilities, joint or several, to which such Purchaser or such controlling
person 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 any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto or any related preliminary prospectus, 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 such Purchaser and each such controlling person
for any legal or other expenses reasonably incurred by such Purchaser or such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers will not
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 of such documents in
reliance upon and in conformity with written information furnished to either of
the Issuers by any Pur-
-18-
chaser specifically for use therein. The indemnification obligation contained in
this Section 7 will be in addition to any liability which the Issuers may
otherwise have.
(b) Each Purchaser will indemnify and hold harmless the Issuers, each of
their respective directors, each of their respective officers who has signed the
Registration Statement, and each person, if any, who controls either of the
Issuers within the meaning of the Act, against any losses, claims, damages or
liabilities to which either of the Issuers or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or action in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the 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 reliance upon and in conformity with written information
furnished to either of the Issuers by such Purchaser specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Issuers or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. The indemnification obligation contained in this Section 7 will be in
addition to any liability which the Purchasers may otherwise have.
In addition to any other information the Purchasers may furnish, the
Purchasers hereby furnish to the Issuers specifically for use in the Prospectus
the information with respect to the offering of the Purchased Preferred
Securities and the Purchasers set forth on the cover page of the Prospectus
Supplement and under "Underwriting" or similar caption therein.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel selected by the indemnifying party and
acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
-19-
this Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party has been authorized by the indemnifying party, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (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 (iii) the indemnifying party shall not in fact have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of one counsel representing all indemnified parties shall
be at the expense of the indemnifying party. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
8. Contribution. If recovery is not available under the foregoing
indemnification provisions of Section 7 of this Agreement, for any reason other
than as specified therein, the parties entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses, except to
the extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Purchased Preferred Securities (taking into account the
portion of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Issuers and the Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Purchasers were treated as one entity for such
purpose). No Purchaser or any person controlling such Purchaser shall be
obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Purchasers' Preferred Securities purchased by
such Purchaser, less the aggregate amount of any damages which such Purchaser
and its controlling persons have otherwise been required to pay in respect of
the same claim or any substantially similar claim.
9. Termination.
(a) This Agreement may be terminated at any time prior to the Closing Date
by the Purchasers by written notice to the Issuers, if in the reasonable
judgment of the Purchasers it is impracticable to offer for sale or to enforce
contracts made by the Purchasers for the resale of the Purchasers' Preferred
Securities by reason of (i) the Company sustaining a loss, whether or not
insured, by reason of fire, flood, accident or other calamity,
-20-
which, in the reasonable opinion of the Purchasers, substantially affects the
value of the properties of the Company or which materially interferes with the
operation of the properties of the Company or which materially interferes with
the operation of the business of the Company, (ii) trading in securities on the
New York Stock Exchange having been suspended or limited or minimum prices
having been established on such Exchange, (iii) a banking moratorium having been
declared by the United States, or by New York or Missouri state authorities, or
(iv) an outbreak of major hostilities between the United States and any foreign
power, or any other new insurrection or armed conflict involving the United
States having occurred.
(b) If this Agreement shall be terminated pursuant to Section 6 or this
Section 9, or if the purchase of the Purchasers' Preferred Securities by the
Purchasers is not consummated because of any refusal, inability or failure on
the part of the Issuers to comply with any of the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Issuers shall be unable
to perform all the obligations under this Agreement, the Issuers shall not be
liable to the Purchasers for damages arising out of the transactions covered by
this Agreement, but the Issuers and the Purchasers shall remain liable to the
extent provided in Sections 5(a), 7(a) and 8 hereof.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Issuers and the Purchasers
and the respective representations and warranties of the Issuers and the
Purchasers set forth in this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Issuers or the
Purchasers or any of their respective officers, directors, partners or any
controlling person, and will survive delivery of and payment for the Purchased
Preferred Securities or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchasers' Preferred Securities hereunder and the
aggregate liquidation amount of Purchasers' Preferred Securities which such
defaulting Purchaser or Purchasers agreed but failed to purchase is 10% of the
liquidation amount of Purchasers' Preferred Securities or less, you may make
arrangements satisfactory to the Issuers for the purchase of such Purchasers'
Preferred Securities by other persons, including any of the Purchasers, but if
no such arrangements are made by the Closing Date, the non-defaulting
-21-
Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Purchasers' Preferred Securities which
such defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate liquidation amount of Purchasers'
Preferred Securities with respect to which such default or defaults occur is
more than the above percentage and arrangements satisfactory to you and the
Issuers for the purchase of such Purchasers' Preferred Securities by other
persons are not made within thirty-six hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser or
the Issuers, except as provided in Section 10. In the event that any Purchaser
or Purchasers default in their obligation to purchase Purchasers' Preferred
Securities hereunder, the Issuers may, by prompt written notice to the
non-defaulting Purchasers, postpone the Closing Date for a period of not more
than seven full business days in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents, and the Company will promptly file any amendments to the Registration
Statement or supplements to the Prospectus which may thereby be made necessary.
As used in this Agreement, the term "Purchaser" includes any person substituted
for a Purchaser under this Section. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
12. Parties in Interest. This Agreement shall inure to the benefit of the
Issuers, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation (including, without limitation, any
purchaser of the Purchasers' Preferred Securities from a Purchaser or any
subsequent holder thereof) any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not include any
purchaser, as such purchaser, of any Purchased Preferred Securities from any
Purchaser or any subsequent holder thereof.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any agreement previously
entered into.
13. Notices. All communications, terminations and notices hereunder shall
be in writing and, if sent to any Purchaser, shall be mailed, delivered or
telecopied and confirmed to it by letter to the address set forth for such
Purchaser in Schedule A to the Purchase Agreement (or such other place as the
Purchaser may specify in writing); if sent to either of the Issuers shall be
mailed, delivered or telecopied and confirmed to the Company at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, telecopier no. (000) 000-0000 (Attn: Vice
President - Finance) (or such other place as the Company may specify in
writing).
14. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
EMPIRE DISTRICT ELECTRIC TRUST __________
Form of Purchase Agreement
Trust Preferred Securities
(Guaranteed by The Empire District Electric Company)
----------------
(Date)
Empire District Electric Trust [ ]
c/o The Empire District Electric Company
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We refer to the trust preferred securities of Empire District Electric
Trust [ ] (the "Trust") covered by Registration Statement No. 333- , which
became effective on _________________ (the "Registration Statement"). On the
basis of the representations, warranties and agreements contained in this
Agreement, but subject to the terms and conditions herein set forth, the
purchaser or purchasers named in Schedule A hereto (the "Purchasers") agree to
purchase, severally, and the Trust agrees to sell to the Purchasers, severally,
the respective liquidation amounts of the Trust's trust preferred securities
referred to below (the "Purchased Preferred Securities") set forth opposite the
name of each Purchaser on Schedule A hereto. The Purchased Preferred Securities
will be guaranteed on a junior subordinated basis by The Empire District
Electric Company (the "Company") to the extent set forth in a guarantee
agreement to be dated the Closing Date between the Company and Norwest Bank
Minnesota, National Association, as trustee.
The price at which the Purchased Preferred Securities shall be purchased
from the Trust by the Purchasers shall be ______% of their liquidation amount
plus accrued distributions, if any, from ____________. The initial public
offering price shall be _____% of their liquidation amount plus accrued
distributions, if any, from ______________. The Purchased Preferred Securities
will be offered as set forth in the Prospectus Supplement relating to such
Purchased Preferred Securities.
The Purchased Preferred Securities will have the following terms:
-2-
Title: ______________
Liquidation Amount at Maturity: ______________
Distribution Rate: ___% per annum
Distribution Payment Dates: ______________
Maturity: ______________
Redemption Provisions: ______________
Listing: ______________
The "Closing Date" (as
defined in Section 2 of the
Trust's Standard Purchase
Provisions -- Trust
Preferred Securities) shall be: ______________
The closing of the
purchase and sale of the
Purchased Preferred Securities
shall take place at: ______________
The purchase price for the
Purchased Preferred Securities
shall be paid by: ______________
The funds used to pay for
the Purchased Preferred
Securities shall be: ______________
The Purchased Preferred
Securities shall be made
available for inspection
and packaging at: ______________
Other: ______________
Notice to the Purchasers shall be sent to the following address:
-3-
If we are acting as Representative(s) for the several Purchasers named in
Schedule A hereto, we represent that we are authorized to act for such several
Purchasers in connection with this financing, and that, if there are more than
one of us, any action under this Agreement taken by any of us will be binding
upon all the Purchasers.
All of the provisions contained in the document entitled "Empire District
Electric Trust [ ], Standard Purchase Provisions--Trust Preferred Securities," a
copy of which has been previously furnished to us, are hereby incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Trust, the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
--------------------------------------------
Name:
Title:
Acting on behalf of and as Representative(s)
of the several Purchasers named in
Schedule A hereto.*
----------
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
EMPIRE DISTRICT ELECTRIC TRUST [ ]
By: The Empire District Electric Company,
as depositor
By: _______________________________
Name:
Title:
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
----------
* To be deleted if the Purchase Agreement is not executed by one or more
Purchasers acting as Representative(s) of the Purchasers for purposes of
this Agreement.
SCHEDULE A TO PURCHASE AGREEMENT
Liquidation Amount of
Purchased
Address and Preferred Securities to Be
Name Telecopier Number Purchased
----------- ----------------- ---------------------------
-------------
Total $
=============
