Exhibit 1
Kansas City Power & Light Company
Medium-Term Notes Due From
9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
December __, 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/x Xxxxxxx Xxxxx & Co.
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Dear Sirs:
Kansas City Power & Light Company, a Missouri
corporation (the "Company"), confirms its agreement with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Deutsche Xxxxxx Xxxxxxxx Inc., and Xxxxxx
Xxxxxxx & Co. Incorporated (the "Agents") with respect to
the issue and sale by the Company of its Medium-Term Notes
described herein (the "Notes"). The Notes are to be issued
pursuant to an indenture (the "Indenture") dated as of
December 1, 1996 between the Company and The Bank of New
York, as trustee (the "Note Trustee").
As of the date hereof, the Company has authorized
the issuance and sale of up to U.S. $300,000,000 aggregate
principal amount of Notes through the Agents pursuant to the
terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold
through or to the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes
by the Company directly to purchasers, in which case the
Agents may act as agents of the Company in soliciting Note
purchases, and (as may from time to time be agreed to by the
Company and the Agents) to the Agents as principal for
resale to purchasers.
The Company has filed with the Securities and
Exchange Commission (the "SEC") a registration statement on
Form S-3 (No. 333-________) for the registration of the
Notes under the Securities Act of 1933, as amended (the
"1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the
SEC under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the
SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (and any further registration
statements which may be filed by the Company for the purpose
of registering additional Notes and in connection with which
this Agreement is included or incorporated by reference as
an exhibit) and the prospectus constituting a part thereof,
and any prospectus supplements relating to the Notes,
including all documents incorporated therein by reference,
as from time to time amended or supplemented by the filing
of documents pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act") or the 1933 Act or
otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that
if any revised prospectus shall be provided to the Agents by
the Company for use in connection with the offering of the
Notes which is not required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the
term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents
for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms
and conditions stated herein and subject to the reservation
by the Company of the right to sell Notes directly on its
own behalf, the Company hereby appoints the Agents as the
exclusive agents for the purpose of soliciting purchases of
the Notes from the Company by others and agrees that, except
as otherwise contemplated herein, whenever the Company
determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance with
the provisions of Section 3(b) hereof. The Agents are not
authorized to appoint sub-agents or to engage the services
of any other broker or dealer in connection with the offer
or sale of the Notes through them as Agents. The Company
agrees that, during the period the Agents are acting as the
Company's agents hereunder, the Company will not appoint
other agents to act on its behalf, or to assist it, in the
placement of the Notes, provided, however, that the Company
may appoint additional agents who have executed this
Agreement or an agreement substantially similar to this
Agreement to solicit offers to purchase Notes, which
appointment shall not become effective until notice thereof
is given to the Agents. Such notice shall be in writing or
by telephone or telegraph confirmed in writing and may be
given only after consultation with the Agents.
(b) Reasonable Efforts Solicitations; Right to
Reject Offers. Upon receipt of instructions from the
Company, the Agents will use their reasonable efforts to
solicit purchases of such principal amount of the Notes as
the Company and the Agents shall agree upon from time to
time during the term of this Agreement, it being understood
that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of
the principal amount of Notes registered pursuant to the
Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale under the
Registration Statement. The Agents will communicate to the
Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by the Agents. The Agents
shall have the right, in their discretion reasonably
exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed
a breach of the agreement of the Agents contained herein.
The Company may accept or reject any proposed purchase of
the Notes, in whole or in part.
(c) Solicitations as Agents; Purchases as
Principal. In soliciting purchases of the Notes on behalf
of the Company, the Agents shall act solely as agents for
the Company and not as principal. The Agents shall make
reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes
has been solicited by the Agents and accepted by the
Company. The Agents shall not have any liability to the
Company in the event any such purchase is not consummated
for any reason. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but an Agent
may agree from time to time to purchase Notes as principal.
Any such purchase of Notes by an Agent as principal shall be
made pursuant to a Terms Agreement in accordance with
Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree
that any Notes the placement of which the Agents arrange
shall be placed by the Agents, and any Notes purchased by an
Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and
in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the
Agents as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase of
Notes (whether through the Agents as agents or to an Agent
as principal), as of the date of each delivery of Notes
(whether through the Agents as agents or to an Agent as
principal) (the date of each such delivery to an Agent as
principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement
or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a
change in the interest rates of Notes or similar changes) or
there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report
on Form 8-K relating exclusively to the issuance of Notes
under the Registration Statement, unless the Agents shall
otherwise specify) (each of the times referenced above being
referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification.
The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the state of its incorporation
with corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Prospectus; and the
Company is duly qualified as a foreign corporation
to transact business and is in good standing in
each jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to so qualify and be in
good standing would not have a material adverse
effect on the condition, financial or otherwise,
or the earnings, business affairs or business
prospects of the Company.
(ii) Subsidiaries. The Company has no
significant subsidiaries, as "significant
subsidiary" is defined in Rule 405 of Regulation C
of the 1933 Act Regulations.
(iii) Registration Statement and Prospectus.
At the time the Registration Statement became
effective, the Registration Statement complied,
and as of the applicable Representation Date will
comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder.
The Registration Statement, at the time it became
effective, did not, and at each time thereafter at
which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-
K is filed by the Company with the SEC and as of
each Representation Date, will not, contain an
untrue statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading. The Prospectus, as of the
date hereof does not, and as of each
Representation Date will not, contain an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, however, that the
representations and warranties in this subsection
shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in
reliance upon and in conformity with information
furnished to the Company in writing by the Agents
expressly for use in the Registration Statement or
Prospectus.
(iv) Incorporated Documents. The documents
incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the
case may be, in all material respects with the
requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with
the other information in the Prospectus, did not
and will not contain an untrue statement of a
material fact or omit to state a material fact
required to be stated therein or necessary in
order to make the statements therein, in the light
of the circumstances under which they were or are
made, not misleading.
(v) Accountants. The accountants who issued
their reports on the financial statements included
or incorporated by reference in the Prospectus are
independent public accountants within the meaning
of the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements and any supporting schedules of the
Company included or incorporated by reference in
the Registration Statement and the Prospectus
present fairly the financial position of the
Company as of the dates indicated and the results
of its operations for the periods specified; and,
except as stated therein, said financial
statements have been prepared in conformity with
generally accepted accounting principles in the
United States (except for certain footnote
disclosures required to be included in financial
statements prepared in accordance with generally
accepted accounting principles) applied on a
consistent basis; and any supporting schedules
included in the Registration Statement present
fairly the information required to be stated
therein.
(vii) Authorization and Validity of this
Agreement, the Indenture and the Notes. This
Agreement has been duly authorized, executed and
delivered and, upon execution and delivery by the
Agents, will be a valid and binding agreement of
the Company; the Indenture has been duly
authorized and, upon execution and delivery by the
Note Trustee, will be a valid and binding
obligation of the Company enforceable in
accordance with its terms; the Notes have been
duly and validly authorized for issuance, offer
and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture
against payment of the consideration therefor
specified in the Prospectus or pursuant to any
Terms Agreement, the Notes will constitute valid
and legally binding obligations of the Company
enforceable in accordance in with their terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting enforcement
of creditors' rights generally or by general
equity principles; the Notes and the Indenture
will be substantially in the forms heretofore
delivered to the Agents and conform in all
material respect to all statements relating
thereto contained in the Prospectus; and each
holder of the Notes will be entitled to the
benefits provided by the Indenture.
(viii) Material Changes or Material Transactions.
Since the respective dates as of which information is
given in the Registration Statement and the Prospectus,
except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material
adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not
arising in the ordinary course of business and
(b) there have been no material transactions entered
into by the Company other than those in the ordinary
course of business.
(ix) No Defaults. The Company is not in
violation of its Restated Articles of
Consolidation, as amended, or by-laws, or in
default in the performance or observance of any
material obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it
or its properties may be bound; the execution and
delivery of this Agreement and the Indenture and
the consummation of the transactions contemplated
herein, therein and pursuant to any applicable
Terms Agreement have been duly authorized by all
necessary corporate action and will not conflict
with or constitute a breach of, or default under,
or result in the creation or imposition of any
lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease
or other instrument to which the Company is a
party or by which it may be bound or to which any
of the property or assets of the Company is
subject, nor will such action result in any
violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws,
of the Company or any law, administrative
regulation or administrative or court order or
decree.
(x) Regulatory Approvals. The Company has made
all necessary filings and obtained all necessary
consents or approvals from the Missouri Public Service
Commission and the Federal Energy Regulatory Commission
(the "FERC") in connection with the issuance and sale
of the Notes, or will have done so by the time the
Notes shall be issued and sold, and no consent,
approval, authorization, order or decree of any other
court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be
required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities ("Blue Sky") laws.
(xi) Legal Proceedings; Contracts. Except
as may be set forth in the Registration Statement,
there is no action, suit or proceeding before or
by any court or governmental agency or body,
domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or
affecting, the Company which might, in the opinion
of the Company, result in any material adverse
change in the condition, financial or otherwise,
or in the earnings, business affairs or business
prospects of the Company, or might materially and
adversely affect its properties or assets or might
materially and adversely affect the consummation
of this Agreement or any Terms Agreement; and
there are no contracts or documents of the Company
which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xii) Franchises. The Company holds valid and
subsisting franchises, licenses and permits authorizing
it to carry on the respective utility businesses in
which it is engaged in the territories from which
substantially all of its gross operating revenue is
derived.
(xiii) Commodity Exchange Act. The Notes, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture, will be
excluded or exempted under the provisions of the
Commodity Exchange Act, as amended.
(xiv) Ratings. The Notes are rated A2 by Xxxxx'x
Investors Service, Inc. and A- by Standard & Poor's
Ratings Group or such other rating as to which the
Company shall have most recently notified the Agents
pursuant to Section 4(a) hereof.
(b) Additional Certifications. Any certificate
signed by any director or officer of the Company and
delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes or the sale of Notes to
an Agent as principal shall be deemed a representation and
warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as
Principal.
(a) Solicitations as Agents. On the basis of the
representations and warranties herein contained, but subject
to the terms and conditions herein set forth, the Agents
agree, as agents of the Company, to use their reasonable
efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole
discretion, to suspend solicitation of purchases of the
Notes through the Agents, as agents, commencing at any time
for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith
suspend solicitation of purchases from the Company until
such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay the Agents a commission,
in the form of a discount, equal to the applicable
percentage of the principal amount of each Note sold by the
Company as a result of a solicitation made by the Agents as
set forth in Schedule A hereto.
The purchase price, interest rate, maturity date
and other terms of the Notes shall be agreed upon by the
Company and the Agents and set forth in a pricing supplement
to the Prospectus to be prepared following each acceptance
by the Company of an offer for the purchase of Notes.
Except as may be otherwise provided in such supplement to
the Prospectus, the Notes will be issued in denominations of
U.S. $1,000 or any larger amount that is an integral
multiple of U.S. $1,000. All Notes sold through the Agents
as agents will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the Agents.
(b) Purchases as Principal. Each sale of Notes
to an Agent as principal shall be made in accordance with
the terms contained herein and (unless the Company and such
Agent shall otherwise agree) pursuant to a separate
agreement which will provide for the sale of such Notes to,
and the purchase and reoffering thereof by, such Agent.
Each such separate agreement (which may be an oral
agreement) between an Agent and the Company is herein
referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and an Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect
to such information (as applicable) as is specified in
Exhibit A hereto. An Agent's commitment to purchase Notes
as principal pursuant to any Terms Agreement or otherwise
shall be deemed to have been made on the basis of the
representations and warranties of the Company herein
contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by an Agent
pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement,
shall be at a discount equivalent to the applicable
commission set forth in Schedule A hereto), the time and
place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by purchasers
acting together with such Agent in the reoffering of the
Notes, and such other provisions (including further terms of
the Notes) as may be mutually agreed upon. The Agents may
reallow any portion of the commission payable pursuant
hereto to dealers or purchasers in connection with the offer
and sale of any Notes. An Agent may utilize a selling or
dealer group in connection with the resale of the Notes
purchased. Such Terms Agreement shall also specify the
requirements for the officer's certificate, opinions of
counsel and comfort letter pursuant to Sections 7(b), 7(c)
and 7(d) hereof.
(c) Administrative Procedures. Administrative
procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Agents and the Company (the
"Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided
to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will
notify the Agents immediately (i) of the effectiveness of
any amendment to the Registration Statement, (ii) of the
transmittal to the SEC for filing of any supplement to the
Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the
SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment
to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, (v) of the
issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose and (vi) any
withdrawal or lowering of the rating assigned by Xxxxx'x
Investors Service, Inc. or Standard & Poor's Ratings Group
(the "Rating Agencies") to any debt securities of the
Company or the public announcement by any Rating Agency that
it has under surveillance or review, with possible negative
implications, its rating of such Debt Securities, but only
to the extent such Rating Agency has notified the Company of
such surveillance or review. The Company will make every
reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Notice of Certain Filings. The Company will
furnish to the Agents copies of any additional registration
statement with respect to the registration of additional
Notes, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise.
(c) Copies of the Registration Statement and the
Prospectus. The Company will deliver to the Agents as many
signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in
the Prospectus) as the Agents may reasonably request. The
Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall
reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The
Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a
Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing
Supplement pursuant to Rule 424(b)(3) under the 1933 Act not
later than the close of business of the SEC on the fifth
business day after the date on which such Pricing Supplement
is first used.
(e) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (l) of this
Section, if at any time during the term of this Agreement
any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel
for the Agents or counsel for the Company, to further amend
or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make
the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, immediate notice shall be given, and
confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in the Agents'
capacity as agents and to cease sales of any Notes the
Agents may then own as principal pursuant to any Terms
Agreement, and the Company will promptly prepare and file
with the SEC such amendment or supplement, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection (1)
of this Section, on or prior to the date on which there
shall be released to the general public interim financial
statement information related to the Company with respect to
each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to
any fiscal year, the Company shall furnish such information
to the Agents, confirmed in writing, and shall include such
financial information and corresponding information for the
comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be
necessary in order to make the statements therein not
misleading, in each Pricing Supplement issued after such
date and prior to the date such information is included in a
document filed by the Company with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(g) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection (1)
of this Section, on or prior to the date on which there
shall be released to the general public financial
information included in or derived from the audited
financial statements of the Company for the preceding fiscal
year, the Company shall either (i) cause the Registration
Statement and the Prospectus to be amended, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act
or otherwise, to include or incorporate by reference, or
(ii) include in each Pricing Supplement issued after such
date and prior to the date the Registration Statement and
Prospectus are so amended, such audited financial statements
and the report or reports, and consent or consents to such
inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding of such financial statements or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933
Act) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect to
each sale of Notes.
(i) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify the
Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for
the distribution of the Notes; provided, however, that the
Company shall not be obligated to file any general consent
to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of
any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(j) 1934 Act Filing. The Company, during the
period when the Prospectus is required to be delivered under
the 1933 Act, will file promptly all documents required to
be filed with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. If required pursuant to
the terms of a Terms Agreement, between the date of such
Terms Agreement and the Settlement Date with respect to such
Terms Agreement, the Company will not, without the Agents'
prior consent, offer or sell, or enter into any agreement to
sell, any debt securities of the Company (other than the
Notes that are to be sold pursuant to such Terms Agreement,
bank borrowings and commercial paper in the ordinary course
of business).
(l) Suspension of Certain Obligations. The
Company shall not be required to comply with the provisions
of subsections (e), (f) or (g) of this Section during any
period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company and (ii) the
Agents shall not then hold any Notes as principal purchased
pursuant to a Terms Agreement, to the time the Company shall
determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms
Agreement with the Agents.
(m) Condition to Agency Transactions. The
Company will offer to any person who has agreed to purchase
Notes as the result of an offer to purchase solicited by the
Agents the right to refuse to purchase and pay for such
Notes if, on the related settlement date fixed pursuant to
the Administrative Procedures, (i) there has been, since the
date on which such person agreed to purchase the Notes (the
"Trade Date"), or since the respective dates as of which
information is given in the Registration Statement, any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the
ordinary course of business, or (ii) there shall have
occurred any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of
which is such as to make it, in the judgment of such person,
impracticable or inadvisable to purchase the Notes, or (iii)
trading in any securities of the Company has been suspended
by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New
York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by
either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium shall
have been declared by either Federal or New York
authorities, or (iv) the rating assigned by any nationally
recognized securities rating agency to any debt securities
of the Company as of the Trade Date shall have been lowered
since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any debt
securities of the Company.
SECTION 5. Conditions; Obligations.
The obligations of the Agents to solicit offers to
purchase the Notes as agents of the Company, the obligations
of any purchasers of the Notes sold through the Agents as
agents, and any obligation of an Agent to purchase Notes
pursuant to a Terms Agreement or otherwise will be subject
to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the
statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its
covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the
Agents shall have received the following legal opinions,
dated as of the date hereof and in form and substance
satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion
of Xxxxxx Sell Xxxx, Vice President-Law of the Company, or
Xx. Xxxx Xxxxxxxxx, General Counsel of the Company, to the
effect that:
(i) the Company is a validly organized and
existing corporation in good standing under the laws of
the State of Missouri and is duly qualified as a
foreign corporation to do business in the State of
Kansas;
(ii) the Company is a public utility duly
authorized by its Restated Articles of Consolidation,
as amended, under which it was organized to carry on
the business in which it is engaged as set forth in the
Prospectus; and the Company has the legal right to
function and operate as an electric utility in the
States of Missouri and Kansas;
(iii) this Agreement, the Terms Agreements, if
any, and the Indenture have each been duly authorized,
executed and delivered by the Company and each
constitutes a legal, valid and binding obligation of
the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally; and this
Agreement, the Terms Agreements, if any, and the
Indenture conform as to legal matters with the
statements concerning them made in the Registration
Statement and the Prospectus, and such statements
accurately set forth the matters respecting this
Agreement, the Terms Agreements, if any, and the
Indenture required to be set forth in the Registration
Statement and the Prospectus;
(iv) The Notes are in due and proper form; the
issue and sale of the Notes by the Company in
accordance with the terms of this Agreement have been
duly and validly authorized by the necessary corporate
action; the Notes, when duly executed (which execution
may include facsimile signatures of officers of the
Company) authenticated and delivered to the purchasers
thereof against payment of the agreed consideration
therefor, will constitute legal, valid and binding
obligations of the Company in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws affecting
enforcement of creditors' rights generally; and the
Notes conform as to legal matters with the statements
concerning them made in the Registration Statement and
Prospectus, and such statements accurately set forth
the matters respecting the Notes required to be set
forth in the Registration Statement and Prospectus;
(v) the orders of the Missouri Public Service
Commission and the FERC authorizing and the issuance
and sale of the Notes (through June 30, 1998 with
respect to Notes maturing less than one year from the
date of their issue) have been duly entered and are
still in force and effect, and no further approval,
authorization, consent, certificate or order of any
state or federal commission or regulatory authority is
necessary with respect to the execution and delivery of
the Indenture or the issue and sale of the Notes as
contemplated in the Agreement (Xx. Xxxx or
Xx. Xxxxxxxxx may in such opinion state any maximum
interest rate on the Notes established by the Missouri
Public Service Commission or FERC);
(vi) the Company holds valid and subsisting
franchises, licenses and permits authorizing it to
carry on the respective utility businesses in which it
is engaged in the territory from which substantially
all of its gross operating revenue is derived;
(vii) the statements contained in the
Registration Statement and Prospectus which are
expressed therein to have been made on the authority of
legal counsel to the Company have been reviewed by her
or him and, as to matters of law and legal conclusions,
are correct;
(viii) the Registration Statement is effective
under the Act, and no proceedings for a stop order are
pending or, to the best of her or his knowledge,
threatened under Section 8(d) of the Securities Act;
(ix) (A) the Registration Statement and the
Prospectus comply as to form in all material respects
with the 1933 Act and the 1939 Act and with the 1933
Act Regulations and (B) the documents incorporated by
reference in the Prospectus, as of the time they were
filed with the SEC, complied as to form in all material
respects with the requirements of the 1934 Act and the
1934 Act Regulations, it being understood that she or
he need express no opinion or belief as to the
financial statements and other financial data included
in the Registration Statement, Prospectus or such
documents;
(x) the Indenture has been qualified under the
Trust Indenture Act;
(xi) To the best of her or his knowledge,
there are no legal or governmental proceedings
pending or threatened which are required to be
disclosed in the Prospectus, other than those
disclosed therein, and all pending legal or
governmental proceedings to which the Company is a
party or of which any of its property is the
subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business of the
Company, are, considered in the aggregate, not
material to the financial condition of the
Company;
(xii) To the best of her or his knowledge,
the Company is not in violation of its Restated
Articles of Consolidation, as amended, or in
default in the performance or observance of any
material obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note or lease to which
it is a party or by which it or any of its
properties may be bound. The execution and
delivery of this Agreement or the Indenture or the
consummation by the Company of the transactions
contemplated by this Agreement and the Notes and
the incurrence of the obligations therein
contemplated, will not conflict with or constitute
a breach of, or default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument known to such counsel and to which the
Company is a party or by which it may be bound or
to which any of the property or assets of the
Company is subject, or any law, administrative
regulation or administrative or court decree known
to such counsel to be applicable to the Company of
any court or governmental agency, authority or
body or any arbitrator having jurisdiction over
the Company; nor will such action result in any
violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws
of the Company; and
(xiii) To the best of her or his knowledge,
there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other
instruments or documents required to be described
or referred to in the Registration Statement or to
be filed as exhibits thereto other than those
described or referred to therein or filed or
incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are
correct, and no default exists in the due
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instruments
described, referred to, filed or incorporated by
reference.
(2) Opinion of Counsel to the Agents. The letter
of Xxxxxx & Xxxxxx, counsel for the Agents, in which such
counsel shall set forth opinions with respect to the
issuance and sale of the Notes, the Registration Statement,
the Prospectus and other related matters as the Agents may
reasonably require, and the Company shall have furnished to
such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters.
(3) Additional Statements. In giving their
opinions required by subsection (a)(1) and (a)(2) of this
Section, Xx. Xxxx or Xx. Xxxxxxxxx and Xxxxxx & Xxxxxx shall
each additionally state that nothing has come to their
attention that would lead them to believe that the
Registration Statement, at the time it became effective, and
if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the
SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective
or at the time of the most recent such filing, and at the
date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 3(b)
hereof) at the date of such Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact
or omits or omitted to state a material fact required to be
stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented at the date hereof, or (if such opinion is
being delivered in connection with a Terms Agreement
pursuant to Section 5(b) hereof) at the date of such Terms
Agreement and at the Settlement Date with respect thereto,
as the case may be, contains an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Officer's Certificate. At the date hereof
the Agents shall have received a certificate of the
President or Vice President and the chief financial or chief
accounting officer of the Company, substantially in the form
of Appendix I hereto and dated as of the date hereof, to
the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus or since the date of any applicable Terms
Agreement, there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business,
(ii) the other representations and warranties of the Company
contained in Section 2 hereof are true and correct with the
same force and effect as though expressly made at and as of
the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or
prior to the date of such certificate, and (iv) no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the
Agents shall have received a letter from Xxxxxxx & Xxxxxxx
LLP, dated as of the date hereof and in form and substance
satisfactory to the Agents, to the effect that:
(i) They are independent public accountants
with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations;
(ii) In their opinion, the financial
statements and supporting schedule(s) of the
Company audited by them and included or
incorporated by reference in the Registration
Statement comply as to form in all material
respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration
statements on Form S-3 and the 1934 Act and the
1934 Act Regulations;
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company, a reading of the minute
books of the Company since the end of the most
recent fiscal year with respect to which an audit
report has been issued, inquiries of and
discussions with certain officials of the Company
responsible for financial and accounting matters
with respect to the unaudited consolidated
financial statements included in the Registration
Statement and Prospectus and the latest available
interim unaudited financial statements of the
Company, and such other inquiries and procedures
as may be specified in such letter, and on the
basis of such inquiries and procedures nothing
came to their attention that caused them to
believe that: (A) the unaudited consolidated
financial statements of the Company included in
the Registration Statement and Prospectus do not
comply as to form in all material respects with
the applicable accounting requirements of the 1934
Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally
accepted accounting principles in the United
States applied on a basis substantially consistent
with that of the audited financial statements
included therein, or (B) at a specified date not
more than five days prior to the date of such
letter, there was any change in the capital stock
or any increase in long-term debt of the Company
or any decrease in the common shareholders' equity
of the Company other than for the declaration of
regular quarterly dividends, in each case as
compared with the amounts shown on the most recent
balance sheet of the Company included in the
Registration Statement and Prospectus or, during
the period from the date of such balance sheet to
a specified date not more than five days prior to
the date of such letter, there were any decreases,
as compared with the corresponding period in the
preceding year, in revenues or net income of the
Company, except in each such case as set forth in
or contemplated by the Registration Statement and
Prospectus or except for such exceptions (e.g.
inability to determine such decreases because of
insufficient accounting information available
after the date of such most recent balance sheet)
enumerated in such letter as shall have been
agreed to by the Agents and the Company; and
(iv) In addition to the examination referred
to in their report included or incorporated by
reference in the Registration Statement and the
Prospectus, and the limited procedures referred to
in clause (iii) above, they have carried out
certain other specified procedures, not
constituting an audit, with respect to certain
amounts, percentages and financial information
which are included or incorporated by reference in
the Registration Statement and Prospectus and
which are specified by the Agents, and have found
such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the
Company identified in such letter.
(d) Other Documents. On the date hereof and on
each Settlement Date with respect to any applicable Terms
Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken
by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form
and substance to the Agents and to counsel to the Agents.
If any condition specified in subdivisions (a)
through (d) of this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at
the option of the Agents, any applicable Terms Agreement)
may be terminated by the Agents by notice to the Company at
any time and any such termination shall be without liability
of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in
Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and
contribution agreement set forth in Sections 8 and 9 hereof,
the provisions concerning the representations, warranties
and agreements to survive delivery of Section 11 hereof and
the provisions set forth under "Parties" of Section 14
hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through the Agents as
agents shall be made by the Company to the Agents for the
account of any purchaser only against payment therefor in
immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment
for a Note on the date fixed for settlement, the Agents
shall promptly notify the Company and deliver the Note to
the Company, and, if the Agents have theretofore paid the
Company for such Note, the Company will promptly return such
funds to the Agents. If such failure occurred for any
reason other than default by the Agents in the performance
of their obligations hereunder, the Company will reimburse
the Agents on an equitable basis for their loss of the use
of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents
that:
(a) Reaffirmation of Representations and
Warranties. Each acceptance by it of an offer for the
purchase of Notes, and each delivery of Notes to an Agent
pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofore delivered to the Agents pursuant hereto are true
and correct at the time of such acceptance or sale, as the
case may be, and an undertaking that such representations
and warranties will be true and correct at the time of
delivery to the purchaser or the agent of such purchaser, or
to the Agents, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made at
and as of each such time (and it is understood that such
representations and warranties shall relate to the
Registration Statement and Prospectus as amended and
supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each
time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest
rates of Notes or similar changes), or there is filed with
the SEC any document incorporated by reference into the
Prospectus or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the
date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of
such sale, as the case may be, in form satisfactory to the
Agents to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which was
last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the
case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred
to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each
time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the
inclusion of additional financial information), or there is
filed with the SEC any document incorporated by reference
into the Prospectus or (if required pursuant to the terms of
a Terms Agreement) the Company sells Notes to an Agent
pursuant to a Terms Agreement, or the Company sells Notes in
a form not previously certified to the Agents by the
Company, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents a
written opinion of Xx. Xxxx or Xx. Xxxxxxxxx, Counsel to the
Company, or other counsel satisfactory to the Agents dated
the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form and
substance satisfactory to the Agents, of the same tenor as
the opinion referred to in Section 5(a)(1) hereof, but
modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter substantially in the
form of Appendix II hereto to the effect that the Agents may
rely on such last opinion to the same extent as though it
was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed
to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each
time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial
information or there is filed with the SEC any document
incorporated by reference into the Prospectus which contains
additional financial information or, (if required pursuant
to the terms of a Terms Agreement) the Company sells Notes
to an Agent pursuant to a Terms Agreement, the Company shall
cause Coopers and Xxxxxxx LLP forthwith to furnish the
Agents with a letter, dated the date of effectiveness of
such amendment, supplement or document with the SEC, or the
date of such sale, as the case may be, in form satisfactory
to the Agents, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section 5(c)
hereof but modified to relate to the Registration Statement
and Prospectus, as amended and supplemented to the date of
such letter, and of the same general tenor as the portions
of the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other
information derived from the accounting records of the
Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a
fiscal quarter, Coopers & Xxxxxxx LLP may limit the scope of
such letter to the unaudited financial statements included
in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment
of the Agents, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company
agrees to indemnify and hold harmless each Agent and each
person, if any, who controls such Agent within the meaning
of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in
the Registration Statement (or any amendment
thereto), or the omission or alleged omission
therefrom of a material fact necessary to make the
statements therein not misleading or arising out
of any untrue statement or alleged untrue
statement of a material fact contained in the
Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission
therefrom of a material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading, unless such untrue statement or
omission or such alleged untrue statement or
omission was made in reliance upon and in
conformity with written information furnished to
the Company by such Agent expressly for use in the
Registration Statement or the Prospectus;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or
proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission,
or any such alleged untrue statement or omission,
if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred, (including the fees and
disbursements of counsel chosen by such Agent)
reasonably incurred in investigating, preparing or
defending against any litigation, or investigation
or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission,
or any such alleged untrue statement or omission,
to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Indemnification of Company. Each Agent
agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act against any
and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent
expressly for use in the Registration statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(c) General. Each indemnified party shall give
prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel
(in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
SECTION 9. Contribution.
In order to provide for just and equitable
contribution in circumstances in which the indemnity
agreement provided for in Section 8 hereof is for any reason
held to be unavailable to or insufficient to hold harmless
the indemnified parties although applicable in accordance
with its terms, the Company and each Agent shall contribute
to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity
agreement incurred by the Company and such Agent, as
incurred, in such proportions that such Agent is responsible
for that portion represented by the percentage that the
total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total
sales price from the sale of Notes sold to or through such
Agent to the date of such liability, and the Company is
responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls such Agent within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Agent, and each director of
the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement,
including:
(a) The preparation and filing of the
Registration Statement and all amendments thereto
and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction
of this Agreement;
(c) The preparation, printing, issuance and
delivery of the Notes, including any fees and
expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the
Company's accountants and counsel, of the Note
Trustee and its counsel, and of any Calculation
Agent;
(e) The reasonable fees and disbursements of
counsel to the Agents incurred from time to time
in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under
state securities laws in accordance with the
provisions of Section 4(h) hereof, including
filing fees and the reasonable fees and
disbursements of counsel for the Agents in
connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal
Investment Survey;
(g) The printing and delivery to the Agents
in quantities as hereinabove stated of copies of
the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the
Agents of the Prospectus and any amendments or
supplements thereto in connection with
solicitations or confirmations of sales of the
Notes;
(h) The preparation, printing, reproducing
and delivery to the Agents of copies of the
Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for
the rating of the Notes;
(j) The fees and expenses, if any, incurred
with respect to any filing with the National
Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket
expenses of the Agents incurred with the approval
of the Company;
(l) The cost of preparing, and providing any
CUSIP or other identification numbers for, the
Notes; and
(m) The fees and expenses of any Depositary
(as defined in the Indenture) and any nominees
thereof in connection with the Notes.
SECTION 11. Representations, Warranties and
Agreements
to Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or in certificates of officers
of the Company submitted pursuant hereto or thereto, shall
remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the
Company, and shall survive each delivery of and payment for
any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This
Agreement (excluding any Terms Agreement) may be terminated
for any reason, at any time by either the Company or the
Agents upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) Termination of a Terms Agreement. An Agent
may terminate any Terms Agreement to which it is a party,
immediately upon notice to the Company, at any time prior to
the Settlement Date relating thereto (i) if there has been,
since the date of such Terms Agreement or since the
respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company,
whether or not arising in the ordinary course of business,
or (ii) if there shall have occurred any material adverse
change in the financial markets in the United States or any
outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent, impracticable
to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading in any securities of the Company
has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order
of the SEC or any other governmental authority, or if a
banking moratorium shall have been declared by either
Federal or New York authorities, or (iv) if the rating
assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date
of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any debt
securities of the Company, or (v) if there shall have come
to the attention of such Agent any facts that would cause
such Agent to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes,
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing
at the time of such delivery, not misleading.
(c) General. In the event of any such
termination, neither party will have any liability to the
other party hereto, except that (i) the Agents shall (except
in the case of a termination pursuant to Section 12(b)(ii))
be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time
of termination (a) the Agents shall own any Notes purchased
pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes
has been accepted by the Company but the time of delivery to
the purchaser or the agent of such purchaser, of the Note or
Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect
until such Notes are so resold or delivered, as the case may
be, and (iii) the covenant set forth in Section 4(g) hereof,
the provisions of Section 5 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9
hereof, and the provisions of Sections 11 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices
required under the terms and provisions hereof shall be in
writing, either delivered by hand, by mail or by telex,
telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Kansas City Power & Light Company
0000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
If to the Agents:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (000) 000-0000
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
0xx Xxxxx
Xxx Xxxx, New York 10036
Attention: Manager - Continuously Offered
Products
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx - Investment Banking
Information Center
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or at such other address as such party may designate from
time to time by notice duly given in accordance with the
terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations
of the parties shall be governed by and construed in
accordance with the laws of the State of New York applicable
to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against
the Agents in connection with or arising under this
Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and
be binding upon the Agents and the Company and their
respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto
and their respective successors and the controlling persons
and officers and directors referred to in Sections 8 and 9
and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the parties hereto and
their respective successors and said controlling persons and
officers and directors and their heirs and legal
representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed
to be a successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents'
understanding of our agreement, please sign and return to
the Company a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its
terms.
Very truly yours,
KANSAS CITY POWER & LIGHT
COMPANY
By: _________________________
Name:
Title:
Accepted:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BY: ______________________________
Name:
Title:
Deutsche Xxxxxx Xxxxxxxx Inc.
BY: ______________________________
Name:
Title:
Xxxxxx Xxxxxxx & Co. Incorporated
BY: _______________________________
Name:
Title:
EXHIBIT A
The following terms, if applicable, shall be
agreed to by the Agents and the Company pursuant to each
Terms Agreement:
Principal Amount: $_________________
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ____%
Settlement Date and Time:
Additional Terms:
Also, agreement as to whether the following will be
required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of
the
Distribution Agreement.
SCHEDULE A
As compensation for the services of the Agents
hereunder, the Company shall pay to them, on a discount
basis, a commission for the sale of each Note equal to the
principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year.......... .125%
From 1 year to less than 18 months......... .150
From 18 months to less than 2 years........ .200
From 2 years to less than 3 years.......... .250
From 3 years to less than 4 years.......... .350
From 4 years to less than 5 years.......... .450
From 5 years to-less than 6 years.......... .500
From 6 years to less than 7 years.......... .550
From 7 years to less than 10 years......... .600
From 10 years to less than 15 years........ .625
From 15 years to less than 20 years........ .700
From 20 years to 30 years.................. .750
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
KANSAS CITY POWER & LIGHT COMPANY
I, [authorized officer's name], [title) of Kansas
City Power & Light Company, a Missouri corporation (the
"Company"), pursuant to Section 5(b) of the Distribution
Agreement dated December __, 1996 (the "Distribution
Agreement") between the Company and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Deutsche
Xxxxxx Xxxxxxxx Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
hereby certify that, to the best of my knowledge, after
reasonable investigation:
1. Since _________, 19__, there has been no
material adverse change in the condition, financial or
otherwise, of the Company, or in the earnings, business
affairs or business prospects of the Company, whether or not
arising in the ordinary course of business other than as
contemplated or set forth in the prospectus (the
"Prospectus") contained in the registration statement (File
No. 333-________) relating to the Company's Medium-Term
Notes (the "Registration Statement");
2. The representations and warranties of the
Company contained in Section 2 of the Distribution Agreement
are true and correct with the same force and effect as
though expressly made at and as of the date hereof;
3. The Company has complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied at or prior to the date hereof; and
4. No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding
for that purpose has been initiated or threatened by the
Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my name
and affixed the seal of the Company.
Dated: _______, 19__
________________________
[Title]
[SEAL]
_________________________
[Title]
APPENDIX II
___________________, 19__
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/x Xxxxxxx Xxxxx & Co.
North Tower, 23rd Floor
World Financial Center
New York, New York 10281-1323
Re: Kansas City Power & Light Company
Medium-Term Notes
Dear Sirs:
I have delivered an opinion to you dated December
__, 19__, as counsel to Kansas City Power & Light Company
(the "Company"), pursuant to Section 5(a) of the
Distribution Agreement, dated as of December __, 1996
between the Company and you, as Agents. You may continue to
rely upon such opinion as if it were dated as of this date
except that all statements and opinions contained therein
shall be deemed to relate to the Registration Statement and
Prospectus as amended and supplemented to this date.
This letter is delivered to you pursuant to
Section 7(c) of the Distribution Agreement.
Very truly yours,
