EXHIBIT 1
WESTERN RESOURCES, INC.
FIRST MORTGAGE BONDS
STANDARD PURCHASE PROVISIONS
INCLUDING
FORM OF PURCHASE AGREEMENT
WESTERN RESOURCES, INC.
STANDARD PURCHASE PROVISIONS
From time to time, Western Resources, Inc., a corporation organized and
existing under the laws of the State of Kansas (the "Company") may enter into
purchase agreements that provide for the sale of designated securities to the
purchaser or purchasers named therein. The standard provisions set forth herein
may be incorporated by reference in any such purchase agreement (the "Purchase
Agreement"). The Purchase Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as "this Agreement." The
term "Bonds" shall mean the First Mortgage Bonds of the Company to be sold by
the Company pursuant to the applicable Purchase Agreement. Unless otherwise
defined herein, terms defined in the Purchase Agreement are used herein as
therein defined.
The Company has filed ("filing" as used herein shall be deemed to include
electronic filings pursuant to the XXXXX program), in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Securities and Exchange Commission thereunder (collectively
called the "Act"), with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (including a prospectus),
relating to the Bonds, which pursuant to Item 12 of Form S-3 incorporates by
reference documents which the Company has filed in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act"). Such
registration statement has been declared effective by the Commission. Promptly
upon the execution of this Agreement, the Company will prepare a prospectus
supplement relating to the Bonds (the "Prospectus Supplement"). The Company has
furnished to you, for use by the Underwriters (as defined herein) and dealers,
copies of one or more preliminary prospectuses and the documents so incorporated
therein (each thereof, including the documents so incorporated therein, is
herein called the "Preliminary Prospectus"). The terms Registration Statement
and Prospectus shall have the meanings ascribed to them in the Purchase
Agreement.
1. Introductory. The Company proposes to issue and sell from time to time
Bonds registered under the Registration Statement. The Bonds will be issued
pursuant to the Indenture of Mortgage and Deed of Trust, dated July 1, 1939, to
Xxxxxx Trust and Savings Bank, as Trustee (the "Bonds Trustee"), as supplemented
and amended, including a supplemental indenture pertaining to the particular
series of Bonds involved in the offering (the "Mortgage"), and will have varying
designations, interest rates and times of payment of any interest, maturities,
redemption provisions and other terms, with all such terms for any particular
series of the Bonds being determined at the time of the sale and set forth in
the Pur-
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chase Agreement and the Prospectus Supplement relating to such series of Bonds.
The Bonds involved in any such offering are hereinafter referred to as the
"Purchased Bonds," and the firm or firms, as the case may be, which agree to
purchase the same are hereinafter referred to as the "Underwriters" of the
Purchased Bonds. The terms "you" and "your" refer to those Underwriters who sign
the Purchase Agreement either on behalf of themselves only or on behalf of
themselves and as representatives of the several Underwriters named in Schedule
A thereto, as the case may be. Purchased Bonds to be purchased by Underwriters
are herein referred to as "Underwriters' 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. Delivery and Payment. The Company will deliver the Underwriters' Bonds
to you for the accounts of the Underwriters at the place specified in the
Purchase Agreement, against payment of the purchase price by certified or bank
cashier's check in same day or New York Clearing House funds (as agreed to by
the parties and specified in the Purchase Agreement) drawn to the order of the
Company, at the time set forth in this 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 "time of purchase." Unless otherwise
provided for in the Purchase Agreement, the Underwriters' Bonds so to be
delivered will be in definitive fully registered form registered in such
authorized denominations and in such names as you request in writing not later
than 10:00 A.M.,1 on the third business day prior to the time of purchase, or,
if no such request is received, in the names of the respective Underwriters in
the amounts agreed to be purchased by them pursuant to this Agreement. For the
purpose of expediting the checking of the Underwriters' Bonds, the Company
agrees to make the Underwriters' Bonds available to you (at the place specified
in the Purchase Agreement) in definitive form not later than 10:00 A.M. on the
first business day preceding the time of purchase.2
If any Purchase Agreement provides for sales of Purchased Bonds pursuant to
delayed delivery contracts, the Company authorizes the Underwriters 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. At the time of purchase the Company
will pay you as compensation, for the accounts of the Underwriters, the
compensation set
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* Times mentioned herein are New York City Time.
** As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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forth in such Purchase Agreement in respect of the principal amount of Contract
Bonds. The Underwriters 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 Underwriters
and the aggregate principal amount of Purchased Bonds to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Purchased Bonds set forth opposite each Underwriter'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. Certain Covenants of the Company. The Company agrees:
(a) As soon as possible after the execution and delivery of this
Agreement to file, or mail for filing, the Prospectus with the Commission
pursuant to its Rule 424 under the Act and, if and when required at any
time after such execution and delivery, to file amendments to the
applications the Company has previously filed with any state regulatory
agencies having jurisdiction to govern the Company's issuance of its
securities setting forth, among other things, the necessary information
with respect to the price and terms of offering of the Purchased Bonds;
(b) To file no amendment or supplement to the Registration Statement
or Prospectus subsequent to the execution of this Agreement to which you
object in writing unless, in the opinion of counsel to the Company, such
filing is required by law;
(c) To furnish such proper information as may be required and
otherwise to cooperate in qualifying the Purchased Bonds for sale under the
laws of such jurisdictions as you may designate and in determining their
eligibility for investment under the laws of such jurisdictions; provided
that the Company shall not hereby be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(d) To the extent not previously furnished to you, to furnish to you
two signed copies of the Registration Statement, as initially filed with
the Commission, of all amendments thereto, and of all documents
incorporated by reference therein (including all exhibits filed therewith,
other than exhibits which have previously been furnished to you and
exhibits incorporated by reference in such documents), and to furnish to
you sufficient unsigned copies of the foregoing (other than exhibits) for
distribution of a copy to you and to each of the other Underwriters (if
any);
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(e) To deliver to the Underwriters without charge as soon as
practicable after the execution and delivery of this Agreement and
thereafter from time to time to furnish to the Underwriters, without
charge, as many copies of the Prospectus in final form and any documents
incorporated by reference therein at or after the date thereof (and of the
Registration Statement as amended or supplemented, if the Company shall
have made any amendment or supplement after the effective date of the
Registration Statement) as you or the respective Underwriters may
reasonably request for the purposes contemplated by the Act;
(f) To advise you promptly (confirming such advice in writing) of any
official request made by the Commission for amendments to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of official notice of institution of proceedings for, or the entry of, a
stop order suspending the effectiveness of the Registration Statement and,
if such a stop order should be entered by the Commission, to make every
reasonable effort to obtain the lifting or removal thereof as soon as
possible, or of the suspension of 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;
(g) To advise the Underwriters of the happening of any event known to
the Company within the time during which a prospectus relating to the
Purchased Bonds is required to be delivered under the Act which, in the
judgment of the Company, would require the making of any change in the
Prospectus or any amended or supplemented Prospectus or in the information
incorporated by reference therein so that as thereafter delivered to
purchasers such Prospectus will not include 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, and on request to prepare and furnish to the
Underwriters and to dealers and other persons designated by you such
amendments or supplements (including appropriate filings under the Exchange
Act) to the Prospectus as may be necessary to reflect any such change,
provided that the Company shall be so obligated only so long as the Company
is notified of unsold allotments (failure by the Underwriters to so notify
the Company cancels the Company's obligation under this Section 3(g));
(h) As soon as practicable, to make generally available to its
security holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective date (as
the term "effective date" is defined in Rule 158) of the Registration
Statement;
(i) To pay the reasonable fees and expenses of counsel for the
Underwriters, and to reimburse the Underwriters for their reasonable
out-of-pocket expenses in-
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curred in contemplation of the performance of this Agreement, in the event
that the Underwriters' Bonds are not delivered to and taken up and paid for
by the Underwriters hereunder for any reason whatsoever except the failure
or refusal of any Underwriter to take up and pay for Underwriters' Bonds
for some reason not permitted by the terms of this Agreement, the
Underwriters agreeing to pay the fees and expenses of counsel for the
Underwriters in any other event;
(j) To pay all expenses, fees and taxes (other than transfer taxes and
fees and disbursements of counsel for the Underwriters except as set forth
under 3(i) above or (iv) below) in connection with (i) the preparation and
filing of the Registration Statement, each Preliminary Prospectus and the
Prospectus, any documents incorporated by reference therein at or after the
date thereof and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers, (ii) the issue, sale and delivery of the Purchased Bonds, (iii)
the printing and reproduction of this Agreement and the opinions and
letters referred to in Section 4(a) hereof, (iv) the qualification of the
Purchased Bonds for sale and determination of their eligibility for
investment under state laws as aforesaid, including the legal fees (not to
exceed $3,000) and all filing fees and disbursements of counsel for the
Underwriters and all other filing fees, and the printing and furnishing of
copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the
Underwriters and to dealers, (v) the rating of the Purchased Bonds by
national rating agencies and (vi) the performance of the Company's other
obligations hereunder;
(k) To use best efforts to cause the Mortgage to be duly filed for
record, appropriate notices of such filing to be recorded, and an
appropriate financing statement to be filed, wherever necessary or
appropriate to perfect the lien of the Mortgage for the benefit of the
Purchased Bonds prior to the time of purchase;
(l) To furnish to the Underwriters, at or before the time of filing
with the Commission subsequent to the effective date of the Registration
Statement and prior to the termination of the distribution of the Purchased
Bonds, a copy of any document proposed to be filed pursuant to Section
13(a), 13(d), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning from the date of this Agreement and
continuing to and including the later of (i) the termination of trading
restrictions on the Purchased Bonds, as notified to the Company by the
Underwriters, and (ii) the time of purchase, the Company will not offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after the time of purchase and
which are substantially similar to the Purchased Bonds, without the
Under-
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writers' prior written consent; provided, however, that in no event shall
the foregoing period extend more than fifteen calendar days from the date
of this Agreement.
4. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed
opinions of Xxxxxxx X. Xxxxxxx, Esq., Executive Vice President, General
Counsel and Corporate Secretary of the Company; Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Company; and [ ], counsel for the Underwriters,
substantially in the forms heretofore furnished to you, addressed to the
Underwriters (with reproduced or conformed copies thereof for each of the
other Underwriters); and that, at the time of purchase, you shall receive
the signed letter of Xxxxxx Xxxxxxxx & Co., independent public accountants
of the Company (with reproduced or conformed copies thereof for each of the
other Underwriters);
(b) That all orders, approvals or consents of state or federal
regulatory commissions necessary to permit the issue, sale and delivery of
the Purchased Bonds shall have been issued; at the time of purchase such
orders shall be in full force and effect; and prior to such time of
purchase no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act by the
Commission and at such time of purchase no proceedings therefor shall be
pending or threatened;
(c) That, at the time the Registration Statement became effective, the
Registration Statement did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that the
Prospectus at its issue date and at the time of purchase shall not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, other than any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon, and in
conformity with, information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to
such Underwriter in the Registration Statement or Prospectus;
(d) That, subsequent to the respective dates as of which information
is given in the Registration Statement and in the Prospectus, at the time
the Prospectus is first filed, or mailed for filing, pursuant to Rule 424
under the Act, and prior to the time of purchase, in your opinion no
material adverse change in the condition of the Company, financial or
otherwise, shall have taken place (other than as referred to in or
contemplated by the Registration Statement and Prospectus as of such time)
which in
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the reasonable judgment of the Underwriters, is sufficiently material and
adverse so as to render it impractical or inadvisable to offer or deliver
the Purchased Bonds on the terms and in the manner contemplated in the
Prospectus;
(e) That the Company shall have performed all of its obligations under
this Agreement which are to be performed by the terms hereof at or before
the time of purchase;
(f) That the Company shall, at the time of purchase, deliver to you
(with reproduced or conformed copies thereof for each of the other
Underwriters) a signed certificate of two of its executive officers stating
that, subsequent to the respective dates as of which information is given
in the Registration Statement and in the Prospectus, at the time the
Prospectus is first filed, or mailed for filing, pursuant to Rule 424 under
the Act, and prior to the time of purchase, no material adverse change in
the condition of the Company, financial or otherwise, shall have taken
place (other than as referred to in or contemplated by the Registration
Statement and Prospectus as of such time) and also covering the matters set
forth in (c) and (e) of this Section 4;
(g) That the Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Bonds arranged by the Underwriters have
been approved by the Company; and
(h) Subsequent to the date of this Agreement: (i) no downgrading shall
have occurred in the rating accorded the Company's First Mortgage Bonds by
a "nationally recognized securities rating organization," as that term is
defined by the Commission for purposes of its Rule 436(g)(2); and (ii) no
such rating organization shall have announced publicly that it has placed,
or informed the Company or the Underwriters that it intends to place, any
of the Company's First Mortgage Bonds on what is commonly referred to as a
"watchlist" for possible downgrading, in a manner or to an extent
indicating a materially greater likelihood of a downgrading in rating as
described in clause (i) above occurring than was the case as of the date
hereof.
5. Termination of Agreement. The obligations of the several Underwriters
hereunder shall be subject to termination in your absolute discretion, if, at
any time prior to the time of purchase, trading in securities on the New York
Stock Exchange shall have been suspended (other than a temporary suspension to
provide for an orderly market) or minimum prices shall have been established on
the New York Stock Exchange, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any outbreak or material escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the
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United States as, in your reasonable judgment, to make it impracticable to
market the Purchased Bonds.
If you elect to terminate this Agreement as provided in this Section 5, the
Company and each other Underwriter shall be notified promptly in writing or by
telephone, confirmed in writing.
If the sale to the Underwriters of the Underwriters' Bonds, as herein
contemplated, is not carried out by the Underwriters for any reason permitted
hereunder or if such sale is not carried out because the Company shall be unable
to comply with any of the terms thereof, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in
Sections 3(i), 3(j), 7(b) and 9 hereof), and the Underwriters shall be under no
obligation or liability to the Company (except to the extent provided in
Sections 8(b) and 9 hereof) or to one another under this Agreement.
6. Increase in Underwriters' Commitments. If any Underwriter shall default
in its obligation to take up and pay for the Purchased Bonds to be purchased by
it hereunder and if the principal amount of the Purchased Bonds which all
Underwriters so defaulting shall have so failed to take up and pay for does not
exceed 10% of the total principal amount of the Purchased Bonds, the
non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of the Purchased Bonds they are obligated to purchase pursuant
to this Agreement) the principal amount of the Purchased Bonds agreed to be
purchased by all such defaulting Underwriters, as herein provided. Such
Purchased Bonds shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Purchased Bonds shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the principal amount of
the Purchased Bonds set opposite the names of all such non-defaulting
Underwriters in Schedule A to the Purchase Agreement.
Without relieving any defaulting Underwriter of its obligations hereunder,
the Company agrees with the non-defaulting Underwriters that it will not sell
any Purchased Bonds hereunder unless all of the Underwriters' Bonds are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you will have the right to postpone the
time of purchase for a period of not exceeding five business days in order that
necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
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The term Underwriter as used in this Agreement will refer to and include
any underwriter substituted under this Section 6 with like effect as if such
substituted underwriter had originally been named in Schedule A to the Purchase
Agreement.
7. Warranties and Representations of and Indemnity by the Company. (a) The
Company warrants and represents that, when the Registration Statement became
effective, the Registration Statement complied in all material respects, and,
when the Prospectus is first filed, or mailed for filing, pursuant to Rule 424
under the Act, and at the time of purchase the Prospectus will comply in all
material respects with the provisions of the Act, and that neither will contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in, or any matter omitted
from, the Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to the
Underwriter in the Registration Statement or Prospectus. The Company also
warrants and represents that the documents incorporated by reference in the
Prospectus complied at the time they were filed in all material respects with
the requirements of the Exchange Act 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 will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(b) The Company agrees to indemnify and hold harmless each Underwriter, and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability or claim which arises out of or is based upon any alleged untrue
statement of a material fact in the Registration Statement, any prospectus
contained in the Registration Statement at the time it became effective or the
Prospectus, or any related preliminary prospectus, or arises out of or is based
upon any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not misleading. The
foregoing shall not cover any such loss, expense, liability or claim, however,
which arises out of or is based upon any alleged untrue statement of a material
fact contained in, and in conformity with information furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for use with
reference to the Underwriter in, any such documents or arises out of or is based
upon any alleged omission to state a material fact in connection with such
information required to be stated in any such documents or necessary to make
such information not misleading.
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If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses; provided, however, that the
failure so to notify the Company will not relieve it from any liability that it
may have to such Underwriter under this Section 7(b) unless, and only to the
extent that such failure results in the forfeiture of substantive rights or
defenses by the Company. Such Underwriter or controlling person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
action or the Company shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company (in which
case the Company shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses of one counsel for all indemnified parties selected by such
Underwriter shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its written consent. The Company's
indemnity agreement contained in this Section 7(b) and its warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or controlling person, and shall survive any termination of this Agreement or
the issuance and delivery of the Purchased Bonds.
The Company agrees promptly to notify the Underwriters of the commencement
of any litigation or proceedings against the Company or any of its officers,
directors or controlling persons in connection with the issue and sale of the
Purchased Bonds or with the Registration Statement or Prospectus.
8. Warranties and Representations of and Indemnity by Underwriters. (a)
Each Underwriter warrants and represents that the information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement at the
time it became effective or the Prospectus when the Prospectus is first filed,
or mailed for filing, pursuant to Rule 424 under the Act, will not contain an
untrue statement of a material fact and does not omit to state a material fact
in connection with such information required to be stated in the Registration
Statement or the Prospectus or necessary to make such information not
misleading. Each Underwriter, in addition to other information furnished by such
Underwriter or on its behalf through you to the Company in writing expressly for
use with reference to such Underwriter in the Registration Statement and
Prospectus, hereby furnishes to the Company in writing expressly
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for use with reference to such Underwriter the statements with respect to the
terms of offering of the Purchased Bonds by the Underwriters set forth on the
cover page of the Prospectus and under "Underwriting" therein.
(b) Each Underwriter and controlling persons severally agrees to indemnify
and hold harmless the Company, its directors and its officers from and against
any loss, expense, liability or claim which arises out of or is based upon any
alleged untrue statement of a material fact contained in, and in conformity with
information furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with reference to such Underwriter in, the
Registration Statement, any prospectus contained in the Registration Statement
at the time it became effective or the Prospectus, or any related preliminary
prospectus, or arises out of or is based upon any alleged omission to state a
material fact in connection with such information required to be stated in such
documents or necessary to make such information not misleading.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the institution
of such action and such Underwriter shall assume the defense of such action,
including the employment of counsel and payment of expenses; provided, however,
that the failure so to notify such Underwriter will not relieve it from any
liability that it may have to the Company under this Section 8(b) unless, and
only to the extent that such failure results in the forfeiture of substantive
rights or defenses by such Underwriter. The Company or such person shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of the defense of
such action or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses for all indemnified parties of one counsel selected by the Company
shall be borne by such Underwriter. Anything in this paragraph to the contrary
notwithstanding, no Underwriter shall be liable for any settlement of any such
claim or action effected without the written consent of such Underwriter. The
indemnity agreement on the part of each Underwriter contained in this Section
8(b) shall remain in full force and effect regardless of any investigation made
by or on behalf of the Company or such person, and shall survive any termination
of this Agreement or the issuance and delivery of the Purchased Bonds. Each
Underwriter agrees promptly to notify the Company of the commencement of any
litigation or proceedings
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against such Underwriter in connection with the issue and sale of the Purchased
Bonds or with such Registration Statement or Prospectus.
9. Contribution. If the indemnification provided for in Sections 7(b) or
8(b) above is unavailable in respect of any losses, expenses, liabilities or
claims referred to therein, then 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 Underwriters and such controlling persons
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 Underwriters and
such controlling persons were treated as one entity for such purpose). The
contribution agreement contained in this Section 9 shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person and shall survive any termination of this Agreement or the
issuance and delivery of the Purchased Bonds.
10. Notices. All statements, requests, notices and agreements shall be in
writing or by telegram and, if to the Underwriters, shall be sufficient in all
respects if delivered or sent by registered mail to the address furnished in
writing for the purpose of such statements, requests, notices and agreements
hereunder, and, if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the Company at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Executive Vice President and
Chief Financial Officer.
11. Construction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. Parties in Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Sections 7, 8 and 9
hereof, and their respective successors, assigns, executors and administrators,
and no other person shall acquire or have any right under or by virtue of this
Agreement. Nothing in this Agreement is intended or shall be con-
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strued to give to any other person, firm or corporation (including, without
limitation, any purchaser of the Purchased Bonds from an Underwriter 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 Underwriter or any
subsequent holder thereof or any purchaser, as such purchaser, of any Contract
Bonds or any subsequent holder thereof.
13. Counterparts. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
Schedule I
DELAYED DELIVERY CONTRACT
Dated: ______________, 2000
Western Resources, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Dear Sirs:
The undersigned hereby agrees to purchase from Western Resources, Inc. (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 ____________, 2000 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:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- ------ -------------
$
---------------------- ----------------------- -------------------------
$
---------------------- ----------------------- -------------------------
$
---------------------- ----------------------- -------------------------
-2-
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 (as agreed to by
the Company and the undersigned) at the (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.
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 delivery shall have taken place, to the
Underwriters such principal amount of the 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 Underwriters, 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 Underwriters.
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 New York.
This contract may be executed in one or more coun-
-3-
terparts, 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________________________________
__________________________________
__________________________________
Address
Accepted, as of the date first above written
WESTERN RESOURCES, INC.
By_____________________________________
Title__________________________________
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
---- --------------------- ----------
WESTERN RESOURCES, INC.
PURCHASE AGREEMENT
FIRST MORTGAGE BONDS
--------------------
Date)
Western Resources, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Dear Sirs:
Referring to the First Mortgage Bonds of Western Resources, Inc. (the
"Company") ("Bonds") covered by registration statement on Form S-3 (No. 333- ),
such registration statement including (i) the prospectus included therein, dated
________________, as supplemented by a prospectus supplement dated
________________, in the form filed under Rule 424(b) and any additional
prospectus supplements relating to the Bonds filed under Rule 424 (such
prospectus as so supplemented, including each document incorporated by reference
therein is hereinafter called the "Prospectus") and (ii) all documents filed as
part thereof or incorporated by reference therein, is hereinafter called 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
"Underwriters") agree to purchase, severally, and the Company agrees to sell to
the Underwriters, severally, the respective principal amounts of the Company's
Bonds having the terms described below (the "Purchased Bonds") set forth
opposite the name of each Underwriter on Schedule A hereto.
The price at which the Purchased Bonds shall be purchased from the Company
by the Underwriters shall be ___% plus accrued interest from _________________.
The initial public offering price shall be ___% plus accrued interest from
___________. The Purchased Bonds will be offered by the Underwriters as set
forth in the Prospectus relating to such Purchased Bonds.
The Purchased Bonds will have the following terms:
Title of Bonds:
----------------------------------
-2-
Interest Rate: _____% per annum
Interest Payment Dates:
----------------------------------
Maturity:
----------------------------------
Redemption Provisions:
----------------------------------
----------------------------------
----------------------------------
Sinking Fund Provisions:
----------------------------------
----------------------------------
----------------------------------
Other:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Payment for the Purchased Bonds shall
be made in the following
funds:
----------------------------------
The time of purchase shall be:
----------------------------------
The place to which the
Purchased Bonds may be checked
and packaged shall be:
----------------------------------
The place(s) at which the Purchased
Bonds shall be delivered
and sold shall be:
----------------------------------
-3-
Delayed Delivery
Contracts: [authorized] [not 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
Underwriters: ]*
---------------------------
Notices to the Underwriters shall be sent to the following address(es) or
telecopier number(s):
If we are acting as Representative(s) for the several Underwriters named in
Schedule A hereto, we represent that we are authorized to act for such several
Underwriters in connection with the transactions contemplated in this Agreement,
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 Underwriters.
All of the provisions contained in the document entitled "Western
Resources, Inc., First Mortgage Bonds, Standard Purchase Provisions," a copy of
which has been previously furnished to us, are hereby incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
-4-
[Firm Name]
By____________________________
Title:_______________________
[Firm Name]
By____________________________
Title:_______________________
Acting on behalf of and as Representative(s)
of the several Underwriters named in
Schedule A hereto.*
----------
* To be deleted if the Purchase Agreement is not executed by one or more
Underwriters acting as Representative(s) of the Underwriters for purposes
of this Agreement.
-5-
The foregoing Purchase Agreement is hereby confirmed as of the date first above
written.
WESTERN RESOURCES, INC.
By________________________________
Title_____________________________
SCHEDULE A
Name of Underwriter Xxxxxx
-----------------------------
Total $
-----------------------------
