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EXHIBIT 1.2
UNDERWRITING AGREEMENT
November 19, 1998
K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Dear Sirs and Mesdames:
We are acting on behalf of the underwriters (including ourselves) named
below (such underwriters being herein called the "UNDERWRITERS"), and we
understand that K N Energy, Inc., a Kansas corporation (the "COMPANY"), proposes
to issue and sell $400 million aggregate principal amount of its 6.45% senior
notes due 2001 (the "SENIOR NOTES"). (The Senior Notes are also referred to
herein as the "OFFERED SECURITIES"). The Senior Notes will be issued pursuant to
the provisions of an Indenture dated as of November 20, 1993 (the "INDENTURE")
between the Company and U.S. Bank Trust National Association, as successor
trustee (the "TRUSTEE"), as supplemented.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Senior Notes set forth below
opposite their names at a purchase price of 99.578% of the principal amount of
Senior Notes:
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PRINCIPAL AMOUNT OF
NAME SENIOR NOTES
---------------------------------------------------- -------------------
Xxxxxx Xxxxxxx & Co. Incorporated $160,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $100,000,000
Xxxxxxx, Sachs & Co. $40,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. $40,000,000
Xxxxxxxxx & Company, Inc. $20,000,000
NationsBanc Xxxxxxxxxx Securities LLC $20,000,000
Xxxxxx Xxxxxxx & Co., Inc. $20,000,000
-----------------
Total...................................... $400,000,000
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000 at 10:00 a.m. (New York City time) on November 25, 1998, or at such
other time, not later than 5:00 p.m. (New York City time) on December 3, 1998,
as shall be designated by the Underwriters. The time and date of such payment
and delivery are hereinafter referred to as the "CLOSING DATE".
Terms of Senior Notes
The Offered Securities shall have the terms set forth in the Prospectus
dated October 19, 1998, and the Prospectus Supplement dated November 19, 1998,
including the following:
Maturity Date: November 30, 2001
Interest Rate: 6.45%
Redemption Provisions: None
Interest Payment Dates: May 31 and November 30
commencing May 31, 1999
Form and Denomination: Book entry, $1,000 minimum
denomination and integral
multiples thereof
All provisions contained in the document entitled K N Energy, Inc. Underwriting
Agreement Standard Provisions (Senior Debt Securities) dated November 19,
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1998, a copy of which is attached hereto, are herein 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, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, and (ii) all references in the Standard
Provisions to the "MANAGER" shall be deemed to be to the "UNDERWRITERS", as
defined herein.
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Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX BARNEY INC.
XXXXXXXXX & COMPANY, INC.
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
XXXXXX XXXXXXX & CO., INC.
By: XXXXXX XXXXXXX & CO.
INCORPORATED
Acting severally on behalf of themselves and the
several Underwriters named herein
By: s:\\ Xxxxxx X. Xxxxxxxxxx XX
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Vice President
Accepted:
K N ENERGY, INC.
By: s:\\ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasury
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K N ENERGY, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(SENIOR DEBT SECURITIES)
November 19, 1998
From time to time, K N ENERGY, INC., a Kansas corporation (the
"COMPANY"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this "Agreement". Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (registration no. 333-
55921), including a prospectus, relating to certain Senior Debt Securities
(hereinafter, the "OFFERED SECURITIES") and other securities issuable by the
Company and has filed with, or transmitted for filing to, or shall promptly
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). Such registration statement also constitutes
post-effective amendment number 1 to registration statement no. 333-44421 (the
"PRIOR REGISTRATION STATEMENT"). The registration statement as amended at the
date of this Agreement, including information, if any, deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act, together with the Prior Registration Statement, is
hereinafter referred to as the "REGISTRATION STATEMENT". The term "BASIC
PROSPECTUS" means the prospectus relating to the Offered Securities included in
the Registration Statement. The term "PROSPECTUS" means the Basic Prospectus
together with the Prospectus Supplement. The term "PRELIMINARY PROSPECTUS" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "SUPPLEMENT", "AMENDMENT" and "AMEND" as used
herein shall include all
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documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"). If the Company has filed an abbreviated registration statement
to register additional Debt Securities pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule
462 Registration Statement. Concurrently with the offering of the Offered
Securities, the Company intends to offer 8,000,000 Premium Equity Participating
Security Units -- PEPS(sm) Units (the "PEPS UNITS OFFERINg").
On January 30, 1998, the Company acquired from Occidental Petroleum
Corporation all of the capital stock of MidCon Corp. ("MIDCON") and a short term
note in the aggregate principal amount of $1.39 billion for $2.1 billion in cash
and another short-term note in the aggregate principal amount of $1.39 billion
(the "ACQUISITION"). Upon the consummation of the Acquisition, MidCon became a
wholly owned subsidiary of the Company. MidCon, MidCon Texas Pipeline Operator,
Inc., Natural Gas Pipeline Company of America, K N Gas Gathering, Inc., K N
Interstate Gas Transmission Co. and K N Services, Inc. are referred to herein as
"SIGNIFICANT SUBSIDIARIES".
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) on the original effective date of the Registration
Statement, and on the effective date of the most recent post-effective
amendment thereto, if any, the Registration Statement did not contain,
and, as amended or
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supplemented, if applicable, will not contain, any 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,
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager or its counsel expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state
of Kansas, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(d) Each Significant Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each such Significant Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable
bankruptcy,
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insolvency or similar laws relating to or affecting creditors' rights
generally and general principles of equity.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be
entitled to the benefits of the Indenture, and will be valid and
binding obligations of the Company, in each case enforceable in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency or similar laws relating to or affecting
creditors' rights generally and general principles of equity.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Offered Securities will not contravene any
provision of applicable law or the articles of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the
Company or any of its Significant Subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any Significant Subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture or the
Offered Securities, except the registration of the Offered Securities
under the Securities Act and such as have been obtained or as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or the documents incorporated
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therein by reference or to be filed as an exhibit to the Registration
Statement that are not described or filed as required.
(k) Each preliminary prospectus relating to the Offered
Securities 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 Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(m) The Company and its subsidiaries are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) To the knowledge of the Company, no person or corporation
which is a "holding company" or a "subsidiary of a holding company",
within the meaning of such terms as defined in the Public Utility
Holding Company Act of 1935, directly or indirectly owns, controls or
holds with power to vote 10% or more of the outstanding voting
securities of the Company; and the Company is not a "holding company"
or to its knowledge, a "subsidiary of a holding company" as so defined.
(o) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities, including, without limitation, the
Federal Energy Regulatory Commission, necessary to conduct their
respective businesses as described in the Prospectus, except when the
failure to possess such certificates, authorizations or permits would
not have a
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material adverse effect on the Company and its subsidiaries, taken as a
whole, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
in all material respects the financial position and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein.
(q) The pro forma financial statements of the Company, and the
related notes thereto, included in the Prospectus present fairly in all
material respects the pro forma financial position of the Company, as
of the dates indicated and the results of their operations for the
periods specified; the pro forma combined financial information, and
the related notes thereto, included in the Prospectus has been prepared
in accordance with the applicable requirements of the Exchange Act and
is based upon good faith estimates and assumptions believed by the
Company to be reasonable.
(r) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company
and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; the Company has not
purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital
stock other than ordinary and customary dividends; and there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its consolidated subsidiaries, except
in each case as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
2. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered
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into as in the Manager's judgment is advisable. The terms of the public offering
of the Offered Securities are set forth in the Prospectus.
3. Payment and Delivery. Payment for the Offered Securities shall be
made to the Company in Federal or other funds immediately available in New York
City at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Offered Securities registered in such names and in such denominations as
the Manager shall request in writing not less than one full business day prior
to the date of delivery, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Underwriters duly paid.
4. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities
Act and no proceedings for that purpose shall have been instituted or
shall be pending or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel for the
Underwriters.
(b) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that is
with negative implications, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the
execution and delivery of this Agreement) that, in the
judgment of the
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Manager, is material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the
Prospectus.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by each of the chief
executive officer and the chief financial officer of the Company, to
the effect set forth in Section and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date sand that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date
an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, outside counsel
for the Company, to the effect set forth in Exhibit A-1, an opinion
of Xxxxxx Xxxxxx, Esq., Vice President, General Counsel and Secretary
of the Company, to the effect set forth in Exhibit A-2, and an
opinion of Polsinelli, White, Xxxxxxxx & Xxxxxxx, Kansas counsel to
the Company, to the effect set forth in Exhibit A-3, in each case,
dated the Closing Date. Such opinions shall be rendered to the
Underwriters at the request of the Company and shall so state
therein.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, in form and substance satisfactory to the
Underwriters.
(f) The Underwriters shall have received on the date hereof
and on the Closing Date letters, dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Xxxxxx Xxxxxxxx LLP, the Company's independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information relating to each of the Company and MidCon contained in
or incorporated by reference in the Registration Statement and the
Prospectus; provided that such letters delivered on the Closing Date
shall use a "cut-off date" not earlier than the date of the
Underwriting Agreement.
(g) The Company shall have obtained all consents, waivers
and/or amendments under the Bank Facility (as defined in the
Prospectus) necessary to consummate the Offering.
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(h) The PEPS Units Offering shall have closed on, or prior to
the Closing Date hereof.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to the Manager, without charge, eight signed
copies of the Registration Statement (including exhibits thereto) and
for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to the
Manager in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this
Agreement and, during the period mentioned in Section below, as many
copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) During the period in which the Prospectus is required by
law to be delivered in connection with the sale of the Offered
Securities, before amending or supplementing the Registration Statement
or the Prospectus (including by filing any document that would as a
result thereof be incorporated by reference in the Prospectus), to
furnish to you a copy of each such proposed amendment, supplement or
other document and not to file any such proposed amendment, supplement
or other document to which you reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters or counsel for the Company the Prospectus
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser,
not misleading, or if, in the reasonable opinion of counsel for the
Underwriters or counsel for the Company, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to
the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered
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Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
that satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company or warrants to purchase or otherwise
acquire debt securities of the Company substantially similar to the
Offered Securities (other than (i) the Offered Securities and (ii)
commercial paper issued in the ordinary course of business), without
the prior written consent of the Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Offered Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Offered Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Offered Securities under state securities law and
all expenses in connection with the qualification of the Offered
Securities for
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offer and sale under state law as provided in Section hereof,
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the Blue Sky memorandum, (iv) all filing fees and
the reasonable fees and disbursements of counsel to the Underwriters,
if any, incurred in connection with the review and qualification of
the offering of the Offered Securities by the National Association of
Securities Dealers, Inc., (v) any fees charged by the rating agencies
for the rating of the Offered Securities, (vi) if applicable, all
costs and expenses incident to listing the Offered Securities on any
national securities exchanges and foreign stock exchanges, (vii) the
cost of printing certificates representing the Offered Securities,
(viii) the costs and charges of any trustee, transfer agent, registrar
or depositary, (ix) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the Offered Securities,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road
show, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 6 entitled "Indemnification and
Contribution", and the last paragraph of Section 8 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, transfer taxes payable on resale
of any of the Offered Securities by them and any advertising expenses
connected with any offers they may make.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages
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or liabilities are caused by any such untrue statement or omission or
allegedly untrue statement or omission based upon information relating
to any Underwriter furnished to the Company in writing by such
Underwriters through the Manager or its counsel expressly for use
therein; provided however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Offered Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of sale of
the Offered Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 5(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through the Manager or its
counsel expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either Section or , such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal
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expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to Section above, and by the Company, in the case
of parties indemnified pursuant to Section above. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
or is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by clause above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause above but also the relative fault of the Company on the one hand
and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective
proportions as the net proceeds from the
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offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to the
aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company (including information relating to
MidCon) or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section are several in proportion to the
respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section . The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section , no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or the Company,
its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
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7. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, the New York Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses through , such event, singly or together with any other such event,
makes it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Offered Securities that it
has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Offered Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Offered Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section by an amount in excess of one-ninth of such principal
amount of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate principal amount of Offered
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Offered Securities to be purchased on such
date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Manager
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if
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20
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
9. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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EXHIBIT A-1
OPINION OF OUTSIDE COUNSEL
FOR THE COMPANY
The opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, outside counsel for the
Company to be delivered pursuant to Section 4(d) of the Underwriting Agreement,
shall be to the effect that:
(i) The Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued or proceeding for that purpose has been
instituted or threatened by the Commission;
(ii) The Indenture has been duly qualified under the Trust Indenture
Act and, assuming the Indenture has been duly authorized, executed and delivered
by the Company and the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principal of equity;
(iii) Assuming the Offered Securities have been duly authorized,
executed and delivered by the Company and duly authenticated by the Trustee, and
upon payment and delivery thereof in accordance with the Underwriting Agreement,
the Offered Securities will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture;
(iv) The issue and sale of the Offered Securities, and the compliance
by the Company with all of the provisions of the Underwriting Agreement and the
Indenture, will not violate any federal or New York statute or any rule or
regulation that has been issued pursuant to any federal or New York statute or
any order known by such counsel issued pursuant to any federal or New York
statute by any court or governmental agency or body or court having jurisdiction
over the Company or any of its subsidiaries or any properties, and no consent,
approval, authorization or order, registration, or qualification of or with, any
federal or New York governmental body or agency or, to our knowledge, any
federal or New York court is required for the issue and sale of the Offered
Securities by the Company and the compliance by the Company with all of the
provisions of this
22
Agreement, the Indenture or the Offered Securities, except for registration
under the Act of the Offered Securities and such as may be required by the
securities or Blue Sky laws of the various states in connection with the
purchase and distribution of the Offered Securities;
(v) The statements in the Prospectus under the caption "Description of
the Senior Notes" insofar as they purport to constitute summaries of the terms
of the Offered Securities, constitute accurate summaries of the terms of such
Offered Securities in all material respects;
(vi) The Company is not an "investment company" within the meaning of,
and subject to regulation under, the Investment Company Act of 1940, as amended;
and
(vii) Such counsel (A) is of the opinion that the Registration
Statement, as of its effective date, and Prospectus, as of the date of the
Underwriting Agreement, (except for financial statements and schedules and other
financial data included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements and schedules and other
financial data as to which such counsel need not express any belief) the
Registration Statement at the time the Registration Statement became effective
or on the effective date of the most recent post-effective amendment thereto, if
any, contained any untrue statements of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) has no reason to believe that (except
for financial statements and schedules and other financial or statistical data
as to which such counsel need not express any belief) the Prospectus at the time
the Prospectus Supplement was issued or at the Closing Date contained or
contains any untrue statement of a material fact or omitted 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.
A-1-2
23
EXHIBIT A-2
OPINION OF GENERAL COUNSEL OF THE COMPANY
The opinion of Xxxxxx X. Xxxxxx, Esq., Vice President, General Counsel
and Secretary of the Company, to be delivered pursuant to Section 4(d) of the
Underwriting Agreement, shall be to the effect that:
(i) Each of the Company and the Significant Subsidiaries (i) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business, except where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and (ii) holds all
material approvals, authorizations, orders, licenses, certificates and permits
from governmental authorities necessary for the conduct of its business as
described in the Prospectus, except where the failure to hold such approvals,
authorizations, orders, licenses, certificates and/or permits would not,
singularly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(ii) Each of the Significant Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is incorporated, with full corporate power and
authority to own its properties and conduct its business as described in the
Prospectus except to the extent that the failure to be in good standing would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole;
(iii) All the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Prospectus, all of
such shares are owned by the Company either directly or through one or more
subsidiaries free and clear of any pledge, security interest, claims, lien or
other encumbrance;
(iv) Such counsel does not know of any statutes or regulations, or any
pending or threatened legal or governmental proceedings, required to be
described in the Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described or referred to in
the Registration
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Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required;
(v) The descriptions included in or incorporated by reference in the
Prospectus of the statutes, regulations, legal or governmental proceedings,
contracts and other documents therein described are accurate and fairly
summarize the matters referred to therein;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained by the Company or any
subsidiary for the consummation of the transactions contemplated herein in
connection with the purchase and sale of the Offered Securities by the
Underwriters, except such approvals (specified in such opinion) as have been
obtained;
(vii) The execution and delivery by the Company of the Underwriting
Agreement and the Indenture, the issuance and delivery of the Offered
Securities, the consummation by the Company of the transactions contemplated
therein and compliance by the Company with the terms of the Underwriting
Agreement do not and will not result in any violation of the charter or by-laws
of the Company or any Significant Subsidiary and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or any Significant
Subsidiary under (A) any indenture, mortgage or loan agreement, or any other
agreement or instrument known to such counsel, to which the Company or any
Significant Subsidiary is a party or by which it may be bound or to which any of
its properties may be subject, (B) any existing applicable law, rule or
regulation (other than the securities or Blue Sky laws of the various states, as
to which such counsel need express no opinion), or (C) any judgment, order or
decree of any government, governmental instrumentality or court, domestic or
foreign, known to such counsel having jurisdiction over the Company or any
Significant Subsidiary or any of its properties (except, in the case of
subclauses (A) and (B) hereof, for such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one enterprise or
the transactions contemplated by the Underwriting Agreement);
(viii) Each of the Underwriting Agreement, the Indenture and the
Offered Securities has been duly executed and delivered by the Company;
A-2-2
25
(ix) The Offered Securities in global form have been duly executed and
delivered by the Company;
(x) The Company and the Significant Subsidiaries hold all requisite
Certificates of Public Convenience and Necessity from the Federal Energy
Regulatory Commission to enable them to carry on the respective businesses in
which they are engaged;
(xi) To the knowledge of such counsel (after due inquiry), none of the
Company or any Significant Subsidiary is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the Registration
Statement or Prospectus or filed as an exhibit to the Registration Statement;
(xii) To the knowledge of such counsel, after due inquiry, no person or
corporation which is a "holding company" or a "subsidiary of a holding company,"
within the meaning of such terms as defined in the Public Utility Holding
Company Act of 1935, directly or indirectly owns, controls or holds with power
to vote 10% or more of the outstanding voting securities of the Company; and the
Company is not a "holding company" or to the knowledge of such counsel, after
due inquiry, a "subsidiary of a holding company" as so defined; and
(xiii) The documents incorporated by reference in the Prospectus
(except for the consolidated financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such counsel
need express no opinion), as of the dates they were filed with the Commission or
to the extent such documents were subsequently amended prior to the date hereof,
at the time so amended, complied as to form in all material respects with the
requirements of the Exchange Act and the regulations thereunder.
In addition, such counsel shall state that such counsel has
participated in the preparation of the Registration Statement and the Prospectus
(including the documents incorporated by reference therein) and participated in
conferences with representatives of your legal counsel and representatives of
the Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Such counsel shall also state
that 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 the Prospectus except as stated
above, such counsel advises you that, on the basis of the foregoing, no facts
have come to such counsel's attention which lead such counsel to believe that
(A) the Registration Statement or any amendments thereto (other than the
financial statements and other financial or statistical
A-2-3
26
information included or incorporated by reference therein as to which such
counsel need not comment and except for that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee), at the time the Registration Statement initially
became effective or on the effective date of the most recent post-effective
amendment thereto, if any, 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 not misleading, or (B) the Prospectus or any
amendment or supplement thereto (other than the financial statements and other
financial or statistical information included or incorporated by reference
therein as to which such counsel need not comment and except for that part of
the Registration Statement that constitutes the Form T-1 heretofore referred
to), at the time the Prospectus Supplement was issued or at the Closing Date
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinions, such counsel may (A) state that her opinion
is limited to the laws of the State of Colorado and the federal laws of the
United States and (B) rely as to matters involving the application of laws of
any jurisdiction other than the State of Colorado or the United States, to the
extent deemed proper and specified in such opinion, upon the opinions of
Polsinelli, White, Xxxxxxxx & Xxxxxxx and other local counsel of good standing
believed to be reliable and who are satisfactory to counsel for the Underwriters
and as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
A-2-4
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EXHIBIT A-3
OPINION OF KANSAS COUNSEL OF THE COMPANY
The opinion of Polsinelli, White, Xxxxxxxx & Shalton, Kansas counsel to
the Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement, shall be to the effect that:
(i) The Company is duly incorporated, validly existing, and in good
standing under the laws of the State of Kansas, with corporate power and
authority under such laws to own, lease and operate its properties and conduct
its business as described in the Prospectus.
(ii) The execution and delivery of each of the Indenture and the
Underwriting Agreement have been duly authorized by all necessary corporate
action of the Company.
(iii) The execution and delivery of the Offered Securities have been
duly authorized by all necessary corporate action of the Company.
(iv) No approval, authorization, consent or other action (other than
under the securities or Blue Sky laws of the State of Kansas) is required by any
regulatory authority or governmental body of the State of Kansas for the valid
issuance, sale, and delivery by the Company of the Offered Securities pursuant
to the Underwriting Agreement and to the best of our knowledge, do not result in
any breach or violation of any judgment, order or decree of any governmental
body, agency or court located in Kansas having jurisdiction over the Company.
