Exhibit 1(c)
THE EMPIRE DISTRICT ELECTRIC COMPANY
FIRST MORTGAGE BONDS
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
The Empire District Electric Company
Form of Purchase Agreement
First Mortgage Bonds
-------------------
(Date)
The Empire District Electric Company
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We refer to the First Mortgage Bonds of The Empire District Electric
Company (the "Company"), a Kansas corporation, 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 Company agrees to sell to the Purchasers,
severally, the respective principal amounts of the Company's First Mortgage
Bonds referred to below (the "Purchased Bonds") set forth opposite the name of
each Purchaser on Schedule A hereto.
The price at which the Purchased Bonds shall be purchased from the Company
by the Purchasers shall be ______% plus accrued interest, if any, from
____________. The initial public offering price shall be _____% plus accrued
interest, if any, from ______________. The Purchased Bonds will be offered as
set forth in the Prospectus Supplement relating to such Purchased Bonds.
The Purchased Bonds will have the following terms:
Title of Bonds:
Interest Rate: ___% per annum
Interest Payment Dates: ______________
Maturity: ______________
Redemption Provisions: ______________
Sinking Fund: ______________
The "Closing Date" (as defined in
Section 2 of the Company's Standard
Purchase Provisions
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-- First Mortgage
Bonds) shall be:
______________
The closing of the purchase and sale
of the Purchased Bonds shall take
place at: ______________
The purchase price for the Purchased
Bonds shall be paid by:
______________
The funds used to pay for the
Purchased Bonds shall be: ______________
Other: ______________
Delayed Delivery [Authorized]/[Not
Contracts: authorized]
[Delivery Date ______________
Minimum principal amount of
Purchased Bonds to be sold
pursuant to any Delayed Delivery
Contract:
______________
Maximum aggregate principal amount
of Purchased Bonds to be
sold pursuant to all Delayed
Delivery Contracts:
______________
Compensation to Purchasers: ______________](a)
Notice to the Purchasers shall be sent to the addresses as set forth on
Schedule A hereto.
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.
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(a) To be used if Delayed Delivery Contracts are authorized.
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All of the provisions contained in the document entitled "The Empire
District Electric Company, Standard Purchase Provisions--First Mortgage Bonds,"
a copy of which has been previously furnished to us (the "Standard Purchase
Provisions"), 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.
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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 between the Company and the several Purchasers in
accordance with its terms.
Very truly yours,
[NAME OF PURCHASER]
By:
----------------------------------------
Name:
Title:
Acting on behalf of itself and as
Representative(s) of the several
Purchasers named in
Schedule A hereto.(a)
The foregoing Purchase
Agreement is hereby confirmed
as of the date first above written
THE EMPIRE DISTRICT ELECTRIC COMPANY
By: _______________________________
Name:
Title:
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(a) 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
Principal Amount
Address and of Purchased Bonds
Name Telecopier Number to Be Purchased
---- ----------------- ---------------
---------------
Total $
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THE EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE PROVISIONS -- FIRST MORTGAGE BONDS
From time to time, The Empire District Electric Company, a Kansas
corporation ("Company"), may enter into purchase agreements that provide for the
sale of a designated series of First Mortgage Bonds 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 Company proposes to issue and sell from time to time
First Mortgage Bonds registered under the registration statement referred to in
Section 3(a) ("Bonds"). The Bonds will be issued under an Indenture of Mortgage
and Deed of Trust, dated as of September 1, 1944 ("Original Mortgage"), by and
between the Company and The Bank of New York and UMB Bank & Trust, N.A., as
trustees ("Trustees"), as supplemented and amended, including by a supplemental
indenture ("Supplemental Indenture") pertaining to the particular series of
Bonds involved in the offering (the Original Mortgage as so amended and
supplemented, the "Indenture") and will have varying designations, interest
rates and terms of payment of interest, maturities, redemption and sinking fund
provisions, if any, and other terms, with all of such terms for any particular
series of Bonds being determined at the time of sale and being as set forth in
the Purchase Agreement and Supplemental Indenture relating to such series of
Bonds. The Bonds referred to in Schedule A of the Purchase Agreement are
hereinafter referred to as the "Purchased Bonds." The firm or firms, as the case
may be, which agree to purchase the Purchased Bonds are hereinafter referred to
as the "Purchasers" of such Purchased Bonds. The terms "you" and "your" refer to
those Purchasers (or the Purchaser) who sign the Purchase Agreement either on
behalf of themselves (or itself) only or on behalf of the several Purchasers
named in Schedule A thereto, as the case may be. Purchased Bonds to be purchased
by Purchasers are herein referred to as "Purchasers' Bonds," and any Purchased
Bonds to be purchased pursuant to Delayed Delivery Contracts (as defined below)
as hereinafter provided are herein referred to as "Contract Bonds."
2. Sale and Delivery of the Bonds. Subject to the terms and conditions set
forth in this Agreement, the Company will deliver the Purchasers' Bonds 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 Company, 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 Company determine, such time being herein referred to as the "Closing Date."
The Company 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' Bonds 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
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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.
If any Purchase Agreement provides for sales of Purchased Bonds pursuant to
delayed delivery contracts, the Company authorizes the Purchasers to solicit
offers to purchase Contract Bonds pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto (the "Delayed Delivery
Contracts") with such changes therein as the Company may approve. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies, and
educational and charitable institutions. Each Delayed Delivery Contract shall
provide for the purchase and sale of a principal amount of Contract Bonds not
less than the amount set forth in the Purchase Agreement and the aggregate
principal amount of all Contract Bonds shall not exceed the amount set forth in
the Purchase Agreement. On the Closing Date, the Company will pay you as
compensation, for the accounts of the Purchasers, the compensation set forth in
such Purchase Agreement in respect of the principal amount of Contract Bonds.
The Purchasers will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Contract Bonds shall be deducted from
the Purchased Bonds to be purchased by the several Purchasers and the aggregate
principal amount of Purchased Bonds to be purchased by each Purchaser shall be
reduced pro rata in proportion to the principal amount of Purchased Bonds set
forth opposite each Purchaser's name in such Purchase Agreement, except to the
extent that you determine that such reduction shall be otherwise allocated and
so advise the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Purchaser that:
(a) The registration statement referred to in the Purchase Agreement
and relating to the Bonds, 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 Bonds 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 Bonds), 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 Company
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 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
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does not apply to statements or omissions in either of such documents based
upon written information furnished to the Company 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 Company has an authorized capitalization as set forth in the
Prospectus.
(d) 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
full corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and the
Prospectus.
(e) The Company is duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its businesses requires such
qualification, except where the failure to so qualify would not reasonably
be expected to have a material adverse effect on the business, properties,
financial condition or results of operation of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"). The Company
has no "significant subsidiary," as such term is defined in Rule 405 of the
Rules and Regulations.
(f) The Company (1) is not in violation of its charter or by-laws, (2)
is not in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject
and (3) is not in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject and has not failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business, except, in the case of clause (2) or (3) above, for any such
default, violation or failure that would not reasonably be expected to
result in a Material Adverse Effect.
(g) The execution, delivery and performance of this Agreement and the
issuance of the Purchased Bonds and consummation of the transactions
contemplated hereby will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would result in any breach of, or constitute a
default
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under), any provisions of the charter or by-laws of the Company or under
any provision of any license, indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is a party
or by which it or its respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company, except for any such
conflict, breach or default which would not reasonably be expected to
result in a Material Adverse Effect.
(h) The Indenture has been duly authorized by the Company and is a
legal, valid and binding agreement of the Company enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of equity.
(i) The Purchased Bonds have been duly authorized by the Company and
when executed and delivered by the Company against payment therefore in
accordance with the Agreement will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) The Purchased Bonds and the Indenture conform in all material
respects to the descriptions thereof contained in the Registration
Statement and Prospectus.
(l) The Company has obtained or made all approvals, authorizations,
consents or orders of or filings with any national, state or local
governmental or regulatory commission, board, body, authority or agency
required in connection with the issuance and sale of the Purchased Bonds or
the consummation by the Company of the transactions as contemplated hereby
other than any necessary qualification under the securities or blue sky
laws of the various jurisdictions in which the Purchased Bonds are being
offered by the Purchasers.
(m) There are no actions, suits, claims, investigations or proceedings
pending or threatened to which the Company or any of its officers is a
party or of which any of its properties is subject, at law, in equity, or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which would
reasonably be expected to result in a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby.
(n) The audited financial statements included in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of the Company as of the dates indicated
and the consolidated results of operations and cash flows of the Company
for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during
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the periods involved, except as otherwise set forth therein. The interim
unaudited financial statements included in the Registration Statement and
the Prospectus present fairly in all material respects the consolidated
financial position of the Company as of the dates indicated and the
consolidated results of operations and cash flows of the Company for the
periods specified subject to year-end adjustments; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved, except as otherwise set forth therein.
(o) The accountants who certified the audited financial statements of
the Company and supporting schedules and notes thereto incorporated by
reference in the Prospectus are an independent registered public accounting
firm with respect to the Company within the meaning of the Act and the
applicable rules and regulations thereunder adopted by the Commission and
the Public Company Accounting Oversight Board (the "PCAOB").
(p) The Company is not, and, as of the Closing Date after giving
effect to the application of the net proceeds as described in the
Prospectus, will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(q) The Company, and its directors and officers in their capacity as
such, have each complied, and currently are in compliance, in all material
respects with the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations
of the Commission and the New York Stock Exchange issued or adopted in
connection therewith.
(r) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its subsidiaries (or, to the actual knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for
any violation or remedial action which would not reasonably be expected to
have, singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have actual knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
reasonably be expected to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes, dumpings
and releases, a Material Adverse Effect; and the terms "hazardous wastes,"
"toxic wastes," "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
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(s) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and (i) such disclosure controls and procedures are designed
to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Chief Executive
Officer and its Chief Financial Officer by others within those entities;
(ii) such disclosure controls and procedures are effective to perform the
functions for which they were established; and (iii) since the date of the
most recent evaluation there have been no changes in the Company's internal
control over financial reporting that have materially affected, or are
reasonably likely to materially affect the Company's internal control over
financial reporting. Based on the most recent evaluation of internal
control over financial reporting, the Company's auditors and the Audit
Committee of the Board of Directors have been advised of: (i) all
significant deficiencies and material weaknesses in the design or operation
of internal control over financial reporting which are reasonably likely to
adversely affect the Company's ability to record, process, summarize, and
report financial information; and (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in
the Company's internal control over financial reporting.
(t) 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 Company.
(u) The Company maintains insurance covering its properties,
operations, personnel and businesses as the Company deems adequate; such
insurance insures against such losses and risks to an extent which is
adequate, in the good faith judgment of management, to protect the Company
and its business.
(v) Any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such
sources to the extent required.
4. Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus with respect to any
Purchased Bonds, and will furnish you a copy thereof prior to the filing
thereof with the Commission.
(b) The Company will furnish to you copies of the registration
statement relating to the Bonds 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 amendments to exhibits and
supplements relating to Bonds that are not Purchased Bonds), in each case
as soon as available and in such quantities as you reasonably request for
the purposes contemplated by the Act.
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(c) If at any time when a prospectus relating to the Purchased Bonds
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 Company 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 Company shall be so obligated only so long
as the Company is notified of unsold allotments (failure by the Purchasers
to so notify the Company cancels the Company's 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 Company will cooperate with the Purchasers in taking such
action as may be necessary to qualify the Purchased Bonds 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 Bonds; provided, however, that the
Company shall not 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 Company
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 Act) covering a period of twelve months after the effective date
of the Registration Statement.
(f) For a period of one year, 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. For purposes of this clause (f), any information
filed by the Company on the Commission's XXXXX system will be deemed
furnished to you in satisfaction of this clause (f).
(g) The Company will apply the net proceeds from the offering of the
Purchased Bonds as set forth under the caption "Use of Proceeds" in the
Prospectus Supplement.
(h) The Company will record and file the Supplemental Indenture
pertaining to the Purchased Bonds in each place in which such recording or
filing is required to protect and preserve the lien of the Indenture and
will pay all taxes and recording fees required to be paid
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with respect to the execution, recording and filing of the Supplemental
Indenture and the issuance of the Purchased Bonds.
(i) If a public offering of the Purchased Bonds is to be made, the
Company will not offer or sell any of its other debt securities which are
substantially similar to the Purchased Bonds prior to ten business days
after the Closing Date without the consent of the Purchasers.
(j) The Company will advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of the Prospectus, of the suspension
of the qualification of the Purchased Bonds for offering or sale in any
jurisdiction or of the initiation or threatening of any proceeding for any
such purpose; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of the Prospectus or suspending any
such qualification, promptly to use its reasonable best efforts to obtain
the prompt withdrawal of such order.
5. Expenses. The Company and the Purchasers agree as follows:
(a) The Company, whether or not the transactions contemplated
hereunder are consummated, will (except as provided in Section 4(c) hereof)
pay 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 and Indenture and any supplements or amendments
thereto; (ii) the preparation, issuance and delivery to the Purchasers of
the Purchasers' Bonds and the preparation, issuance and delivery to the
purchasers thereof of the Contract Bonds; (iii) the reproduction or
printing and mailing in reasonable quantities of the Registration
Statement, the Supplemental Indenture, 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; (iv) reasonable filing fees and expenses (including legal
fees and disbursements, not in excess of $5,000) incurred in connection
with the qualification of the Purchased Bonds 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; (v) the fees and
expenses of the accountants and the counsel for the Company; (vi) the fees
of the Trustees and any agent of the Trustees (including legal fees and
disbursements, if any, of counsel to the Trustees); (vii) any fees payable
to investment rating agencies with respect to the Purchased Bonds; and
(viii) all other costs and expenses incident to the performance of its
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) and in Section 9(c)
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' Bonds shall be subject in
their discretion to the accuracy of and compliance in all material respects with
the representations and the warranties of the Company
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herein contained as of the date hereof and the Closing Date, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) 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
Xxxxxxxx & Xxxx, counsel for the Company, 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) All approvals of the State Corporation Commission of the
State of Kansas which are required for the issuance, sale and delivery
of the Purchased Bonds have been obtained; any conditions in such
approvals required to be satisfied prior to the issuance of the
Purchased Bonds 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 and delivery of the Purchased
Bonds or the execution, delivery and performance by the Company of the
Supplemental Indenture, the Purchased Bonds, any Delayed Delivery
Contracts 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);
(iii) Neither the issuance, sale and delivery of the Purchased
Bonds nor the execution, delivery and performance by the Company of
this Agreement, any Delayed Delivery Contract or the Purchased Bonds
will conflict with, violate or result in a breach of any Kansas 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 any approvals which may be required under the
securities acts or Blue Sky laws of said state); and
(iv) This Agreement and any Delayed Delivery Contracts have 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 Company, 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 for-
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eign 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;
(iii) The Purchasers' Bonds have been duly authorized, executed,
issued and delivered by the Company and constitute, and the Contract
Bonds have been duly authorized and when executed and authenticated in
accordance with the Indenture and delivered to and paid for by the
purchasers pursuant to Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the Company entitled to the
benefits and security provided by the Indenture except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or the
enforcement of the security provided by the Indenture or by general
principles of equity and, (A) as to the Company's interest in the
Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Xxxxxx Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest in such station and (B) as to the Company's
interest in the State Line Combined Cycle Generating Facility, except
as the same may be limited by the terms of the Agreement for the
Construction, Ownership and Operation of State Line Combined Cycle
Generating Facility, dated July 26, 1999, as amended, among the
Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
(iv) The Indenture 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
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Xxxxxx Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest in such station and (B) as to the Company's
interest in the State Line Combined Cycle Generating Facility, except
as the same may be limited by the terms of the Agreement for the
Construction, Ownership and Operation of State Line Combined Cycle
Generating Facility, dated July 26, 1999, as amended, among the
Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
-11-
(v) The Indenture constitutes a direct and valid mortgage lien
upon substantially all of the properties and assets of the Company
specifically or generally described or referred to in the Indenture as
being subject to the lien thereof (except such property as may have
been disposed of, or released from the lien thereof, in accordance
with the terms thereof) and will create a similar lien upon all
properties and assets acquired by the Company after the date hereof
located in counties in which the Indenture has been recorded and
required to be subjected to the lien of the Indenture when acquired by
the Company; the Indenture (except as otherwise herein stated with
respect to the Supplemental Indenture) has been duly recorded as a
mortgage of real estate or recorded or filed as a chattel mortgage in
each county or recording or filing district in which any of the
properties or assets of the Company subject to the lien of the
Indenture are situated; the Supplemental Indenture has been filed for
record as a mortgage of real estate in Cherokee County, Kansas and in
Xxxxxx, Xxxxxxxx, and Xxxxxx Counties, Missouri (and specifying any
other recording or filing at the Closing Date) and, upon the
Supplemental Indenture being duly filed and recorded as a mortgage of
real estate in all other counties in the States of Arkansas, Kansas
and Missouri in which real estate subject to the lien of the Indenture
is located and being filed as a chattel mortgage in the office of the
Secretary of State of each of the States of Kansas, Missouri and
Oklahoma, and upon the filing of an appropriate amendment to a
financing statement in the office of the Secretary of State of the
State of Arkansas, no further recording or filing and, under present
law, no periodic or other re-recording or refiling of the Indenture or
any other instrument will be required in order to preserve and protect
the lien of the Indenture either as a mortgage on real estate or as a
chattel mortgage except that if the Company shall hereafter acquire
property in any county in which the Indenture shall not be of record,
further recording or filing may be required, depending upon the law of
the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the
States of Arkansas, Kansas, Missouri and Oklahoma to be paid with
respect to the execution, recording or filing of the Indenture and the
issuance of the Purchased Bonds have been paid except such fees as are
not payable until the filing for record of the Supplemental Indenture
in the offices mentioned in the next preceding paragraph in which it
has not been filed on the Closing Date, provision for the payment of
which fees has been made by the Company, and upon payment of such fees
by the Company no taxes or recording fees required by the laws of the
States of Arkansas, Kansas, Missouri and Oklahoma with respect to the
execution, recording or filing of the Indenture or the issuance of the
Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to
substantially all real and fixed properties and good and marketable
title to substantially all other properties and assets specifically or
generally described or referred to in the Indenture as being subject
to the lien thereof (except such property as may have been disposed
of, or released from the lien thereof, in accordance with the terms
thereof), in each case free and clear of all liens, charges and
encumbrances prior to the lien of the Indenture except permitted
encumbrances as defined in the Indenture (it being un-
-12-
derstood that such foregoing opinion may be based (1) on searches of
available public records performed within five business days prior to
the Closing Date and (2) upon a certificate of the Company); and the
descriptions of all such properties and assets contained in the
granting clauses of the Indenture are correct and adequate for the
purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal
matters in all material respects to the descriptions thereof contained
in the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased
Bonds nor the execution, delivery and performance by the Company of
this Agreement, any Delayed Delivery Contract, the Supplemental
Indenture or the Purchased Bonds 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 laws 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 (other than the lien of the
Indenture);
(xi) Relying as to materiality to a large extent upon the
statements and opinions of representatives of the Company, 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 and, with respect to
the Prospectus, also as of the Closing Date, 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
-13-
other financial or statistical information contained in the
Registration Statement or the Prospectus; and
(xii) Other than disclosed or contemplated by the Registration
Statement and the Prospectus, there are no actions, suits, claims,
investigations or proceedings pending or threatened to which the
Company or any of its officers is a party or of which any of its
properties is subject, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which would reasonably be
expected to result in a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby.
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 Xxxxxxxx & Xxxx referred to in paragraph (b) above and, as
to all matters covered thereby, upon the opinion of Xxxxxx, 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 Company, to the effect that all approvals of the Public
Service Commission of the State of Missouri, the Corporation Commission of
Oklahoma and the Arkansas Public Service Commission which are required for
the issuance, sale and delivery of the Purchased Bonds have been obtained;
any conditions in such approvals required to be satisfied prior to the
issuance of the Purchased Bonds 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 States of
Missouri, Oklahoma or Arkansas is legally required for the issuance, sale
and delivery of the Purchased Bonds or the execution, delivery and
performance by the Company of the Supplemental Indenture, the Purchased
Bonds, this Agreement or any Delayed Delivery Contract (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 LLP, counsel for the Company, to the effect that:
(i) The Purchasers' Bonds have been duly authorized, executed,
issued and delivered by the Company and constitute, and the Contract
Bonds have been duly authorized and when executed and authenticated in
accordance with the Indenture and delivered to and paid for by the
purchasers pursuant to Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the Company entitled to the
benefits and security provided by the Indenture except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights or the
enforcement of the security provided by the Indenture or by general
principles of equity and, (A) as to the Company's interest in the
Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Xxxxxx Light & Power
Company and the Company and of any
-14-
other agreements by the Company relating to its interest in such
station and (B) as to the Company's interest in the State Line
Combined Cycle Generating Facility, except as the same may be limited
by the terms of the Agreement for the Construction, Ownership and
Operation of State Line Combined Cycle Generating Facility, dated July
26, 1999, as amended, among the Company, as an owner, Westar
Generating, Inc., as an owner and the Company, as agent and of any
other agreements by the Company relating to its interest in such
facility;
(ii) The Indenture 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
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Xxxxxx Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest in such station and (B) as to the Company's
interest in the State Line Combined Cycle Generating Facility, except
as the same may be limited by the terms of the Agreement for the
Construction, Ownership and Operation of State Line Combined Cycle
Generating Facility, dated July 26, 1999, as amended, among the
Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
(iii) The Indenture and the Purchased Bonds 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, the Public Service Commission of the State of
Missouri, the Corporation Commission of Oklahoma and the Arkansas
Public Service Commission which are required for the issuance, sale
and delivery of the Purchased Bonds 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 (after
inquiry), 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
-15-
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 and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In rendering such opinion Xxxxxx Xxxxxx & Xxxxxxx 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, Missouri, Arkansas and Oklahoma, and covered
by their respective opinions, upon the opinions of Xxxxxxxx & Xxxx; 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
Company, counsel for the Company, representatives of the independent
accountants of the Company 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 or incorporated by reference in the Registration
Statement and Prospectus, or any subsequent amendments or supplements
thereto (other than to the extent set forth in paragraph (iii) above), 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
Company), no facts have come to the attention of such counsel which lead
such counsel to believe that the Registration Statement, and any subsequent
amendments thereto, at the time they became effective, 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, and no facts have come to the attention of such counsel which
lead such counsel to believe that the Prospectus, and any subsequent
amendment or supplement thereto, as of its date and as of the Closing Date,
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 or incorporated by reference 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 Purchasers' Bonds have been duly authorized, executed,
issued and delivered by the Company and constitute, and the Contract
Bonds have been duly authorized and when executed and authenticated in
accordance with the Indenture and delivered to and paid for by the
purchasers pursuant to Delayed Delivery Contracts will constitute,
valid and legally binding obligations of the Company entitled to the
benefits and security provided by the Indenture except as the same may
be limited by
-16-
bankruptcy, insolvency, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or the enforcement of
the security provided by the Indenture or by general principles of
equity and, (A) as to the Company's interest in the Iatan Generating
Station, except as the same may be limited by the terms of the Iatan
Station Ownership Agreement, dated July 31, 1978, among Kansas City
Power & Light Company, St. Xxxxxx Light & Power Company and the
Company and of any other agreements by the Company relating to its
interest in such station and (B) as to the Company's interest in the
State Line Combined Cycle Generating Facility, except as the same may
be limited by the terms of the Agreement for the Construction,
Ownership and Operation of State Line Combined Cycle Generating
Facility, dated July 26, 1999, as amended, among the Company, as an
owner, Westar Generating, Inc., as an owner and the Company, as agent
and of any other agreements by the Company relating to its interest in
such facility;
(ii) The Indenture 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
the enforcement of the security provided by the Indenture or by
general principles of equity and, (A) as to the Company's interest in
the Iatan Generating Station, except as the same may be limited by the
terms of the Iatan Station Ownership Agreement, dated July 31, 1978,
among Kansas City Power & Light Company, St. Xxxxxx Light & Power
Company and the Company and of any other agreements by the Company
relating to its interest in such station and (B) as to the Company's
interest in the State Line Combined Cycle Generating Facility, except
as the same may be limited by the terms of the Agreement for the
Construction, Ownership and Operation of State Line Combined Cycle
Generating Facility, dated July 26, 1999, as amended, among the
Company, as an owner, Westar Generating, Inc., as an owner and the
Company, as agent and of any other agreements by the Company relating
to its interest in such facility;
(iii) The Indenture and the Purchased Bonds 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, the Public Service Commission of the State of
Missouri, the Corporation Commission of Oklahoma and the Arkansas
Public Service Commission which are required for the issuance, sale
and delivery of the Purchased Bonds 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 (after
inquiry), no stop order suspending
-17-
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; and
(vi) This Agreement and any Delayed Delivery Contracts have 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 Xxxxxxxx & Xxxx; 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), (v), (vi),
(vii) and (x) 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
Company, counsel for the Company, representatives of the independent
accountants of the Company 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 Company),
but without independently verifying, passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement and
Prospectus, or any subsequent amendments or supplements thereto (except to
the extent set forth in paragraph (iii) above), no facts have come to the
attention of such counsel which lead such counsel to believe that the
Registration Statement, and any subsequent amendments thereto at the time
they became effective, 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, and no facts have come to
the attention of such counsel which lead such counsel to believe that the
Prospectus, and any subsequent amendment or supplement thereto, as of its
date and as of the Closing Date, 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 or incorporated by reference to the Registration Statement or
Prospectus or any such amendments or supplements or the Forms T-1 of the
Trustees).
-18-
(g) You shall have received a letter or letters from the Company's
independent registered public accounting firm, dated the date of this
Agreement and the Closing Date and addressed to you, confirming that they
are an independent registered public accounting firm with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Commission and the PCAOB, and stating
in effect that:
(i) In their opinion, the consolidated financial statements and
schedule of the Company 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 audit in accordance with the standards of the PCAOB),
consisting of 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,
performing the procedures specified by the PCAOB for a review of
interim financial information as described in SAS 100 "Interim
Financial Information," on the unaudited condensed interim financial
statements of the Company incorporated by reference in the Prospectus
and reading the latest available unaudited interim financial data of
the Company for the period from the latest balance sheet date
incorporated into the Registration Statement to the date of the latest
available interim financial data, 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 material modifications should be
made to any unaudited financial statements incorporated by reference
in the Prospectus for them to be in conformity with generally accepted
accounting principles; (2) 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; (3) 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; (4) 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 corresponding period of the previous
year, in operating revenues, operating income or net income; or (5) at
a specified date not more than five business days prior to the date
hereof (in the case of the letter delivered on the date hereof) and at
a specified date not more than three business days prior to the
Closing Date (in the case of the letter delivered on the Closing
Date), there was any change in the capital stock or increase in total
debt (including current maturities) 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
-19-
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 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 information
so set forth or incorporated and the underlying general accounting
records of the Company, except as described in such letter.
(h) On the Closing Date there shall have been furnished to you a
certificate, dated the Closing Date, from the Company, signed on behalf of
the Company by the President, or the Vice President - Finance, stating in
effect that to the best knowledge of the officer 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 Company contained in Section 3 of this Agreement are
correct and the Company has complied with all the agreements and satisfied
all the conditions to be performed or satisfied on its 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 signer
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 Company.
(i) Subsequent to the execution and delivery of this Agreement, (i)
the Company shall not have sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus and (ii) there shall not have been any change in the capital
stock or long-term debt of the Company or any material change, or any
development involving a prospective material change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Purchasers, so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Purchased Bonds on the
terms and in the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange (the "NYSE") or trading in any
securities of the Company on the NYSE shall have been suspended (other than
in the case of marketwide temporary halts or curbs) or the settlement of
such trading generally shall have been materially disrupted or minimum
prices shall have been established on the NYSE by the Commission, by the
NYSE or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal
or state authorities or a material disruption in securities clearance or
-20-
settlement systems, (iii) the United States shall have become engaged in
major hostilities, there shall have been a substantial escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions, including without limitation
as a result of terrorist activities after the date hereof (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Purchasers,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Purchasers' Bonds, on the terms and in the manner
contemplated in the Prospectus.
(k) If a public offering of the Purchasers' Bonds 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 and, subsequent to the
date of this Agreement (except as set forth in the Prospectus), there shall
have been no public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible further downgrading, of such
rating).
(l) The representations and warranties of the Company herein shall be
true and correct as of the Closing Date and all agreements herein contained
to be performed on the part of the Company at or prior to the Closing Date
shall have been so performed.
(m) 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.
(n) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Bonds arranged by the Purchasers have been
approved by the Company.
7. Indemnification.
(a) The Company will indemnify and hold harmless each Purchaser, its
directors and officers 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, its directors and officers and each such
controlling person for any legal or other expenses reasonably incurred by
such Purchaser, its directors and officers or such controlling person in
connec-
-21-
tion with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company 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 the Company by any Purchaser specifically for use therein. The
indemnification obligation contained in this Section 7 will be in addition
to any liability which the Company may otherwise have.
(b) Each Purchaser, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company 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
the Company by such Purchaser specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company 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 Company specifically for use in the Prospectus
the information with respect to the offering of the Purchased Bonds and the
Purchasers set forth on the cover page and inside 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 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
-22-
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.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any action or claim
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment in accordance with
the other provisions of this Section 7.
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 Bonds (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
Company 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' Bonds purchased by such Purchaser and any Contract Bonds, 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 Company, if in the reasonable
judgment of the Purchasers it is
-23-
impracticable to offer for sale or to enforce contracts made by the Purchasers
for the resale of the Purchasers' Bonds by reason of any of the events described
in Section 6(i) or 6(j).
(b) If this Agreement shall be terminated pursuant to Section 6 or 11 or
this Section 9, or if the purchase of the Purchasers' Bonds by the Purchasers is
not consummated because of any refusal, inability or failure on the part of the
Company to comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform all
the obligations under this Agreement, the Company shall not be liable to the
Purchasers for damages arising out of the transactions covered by this
Agreement, but the Company and the Purchasers shall remain liable to the extent
provided in Sections 5(a), 7(a) and 8 hereof.
(c) If the Company shall fail to deliver the Purchasers' Bonds to the
Purchasers by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or the Purchasers
terminate this Agreement because any other condition of the Purchasers'
obligations hereunder required to be fulfilled by the Company (except for
Section 6(j)) is not fulfilled, the Company will reimburse the Purchasers for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred by the Purchasers in connection with this
Agreement and the proposed purchase of the Purchasers' Bonds, and upon demand
the Company shall pay the full amount thereof to the Purchasers. If this
Agreement is terminated pursuant to Section 11 by reason of the default of one
or more Purchasers, the Company shall not be obligated to reimburse any
defaulting Purchaser on account of those expenses.
10. Survival of Indemnities, Representations and Warranties. The respective
indemnities and agreements for contribution of the Company and the Purchasers
and the respective representations and warranties of the Company 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 Company 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
Bonds or termination of this Agreement.
11. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchasers' Bonds hereunder and the aggregate principal
amount of Purchasers' Bonds which such defaulting Purchaser or Purchasers agreed
but failed to purchase is 10% of the principal amount of Purchasers' Bonds or
less, you may make arrangements satisfactory to the Company for the purchase of
such Purchasers' Bonds by other persons, including any of the Purchasers, but if
no such arrangements are made by the Closing Date, the non-defaulting Purchasers
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Purchasers' Bonds which such defaulting Purchasers
agreed but failed to purchase. If any Purchaser or Purchasers so default and the
aggregate principal amount of Purchasers' Bonds with respect to which such
default or defaults occur is more than the above percentage and arrangements
satisfactory to you and the Company for the purchase of such Purchasers' Bonds
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 Company, except as provided in Section 9. In the event that any
Purchaser or Purchasers default in their obligation to purchase Purchasers'
Bonds hereunder, the Company 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
-24-
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
Company, 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' Bonds from a Purchaser or any subsequent holder
thereof or any purchaser of any Contract Bonds 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 Bonds from any Purchaser or any
subsequent holder thereof or any purchaser, as such purchaser, of any Contract
Bonds 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 the Company 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 New York.
Schedule I
DELAYED DELIVERY CONTRACT
Dated:
THE EMPIRE DISTRICT ELECTRIC COMPANY
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Empire District Electric
Company (the "Company"), and the Company agrees to sell to the undersigned,
$___________________
principal amount of the Company's [state title of issue] (the "Bonds") offered
by the Company's Prospectus dated __________ and a Prospectus Supplement dated
__________, receipt of copies of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof plus accrued interest and on the
further terms and conditions set forth in this contract.
The undersigned agrees to purchase such Bonds in the principal amounts and
on the delivery dates (the "Delivery Dates") set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
________________ $_______________ ________________
________________ $_______________ ________________
________________ $_______________ ________________
Payment for the Bonds which the undersigned has agreed to purchase on each
Delivery Date shall be made to the Company or its order by certified or bank
cashier's check in [same day or New York Clearing House funds] at __________ (or
at such other place as the undersigned and the Company shall agree) at 11:00
A.M., New York City Time, on such Delivery Date upon issuance and delivery to
the undersigned of the Bonds to be purchased by the undersigned on such Delivery
Date in such authorized denominations and, unless otherwise provided herein,
registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to such Delivery Date.
-2-
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Bonds on each Delivery Date shall be
subject to the conditions that (1) the purchase of Bonds to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject, (2) the sale of the Bonds
by the Company pursuant to this contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction to which the Company is subject
and (3) the Company shall have sold and delivered to the Purchasers such
principal amount of the Purchased Bonds as is to be sold and delivered to them.
In the event that Bonds are not sold to the undersigned because one of the
foregoing conditions is not met, the Company shall not be liable to the
undersigned for damages arising out of the transactions covered by this
contract.
Promptly after completion of the sale and delivery to the Purchasers, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Purchasers.
Failure to take delivery of and make payment for Bonds by any purchaser
under any other Delayed Delivery Contract shall not relieve the undersigned of
its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Bonds hereby agreed to
be purchased and (b) the undersigned does not contemplate selling the Bonds
which it has agreed to purchase hereunder prior to the Delivery Date therefore.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of Missouri.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so signed.
Yours very truly,
___________________________
By
___________________________
___________________________
-3-
___________________________
Address
Accepted, as of the date first above written
The Empire District Electric Company
By_________________________________
-4-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
