[SERIES 1987B] EXHIBIT 10-l
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
between
KANSAS CITY POWER & LIGHT COMPANY
and
DEUTSCHE BANK AG, ACTING THROUGH ITS
NEW YORK AND CAYMAN ISLANDS BRANCHES
dated as of August 19, 1993
TABLE OF CONTENTS
Section Page
ARTICLE I
AMOUNT AND TERMS OF THE LETTER OF CREDIT
1.01 The Letter of Credit . . . . . . . . . . . . . . . . . . . . .1
1.02 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . .1
1.03 Tender Advances and Accrued Interest Advances. . . . . . . . .2
1.04 Redemption Advances and Purchase Advances . . . . . . . . . .2
1.05 Interest Advances . . . . . . . . . . . . . . . . . . . . . .3
1.06 Interest on Overdue Amounts . . . . . . . . . . . . . . . . .3
1.07 Interest Payments . . . . . . . . . . . . . . . . . . . . . .3
1.08 Selection of Interest Rates . . . . . . . . . . . . . . . . .4
1.09 Interest Periods . . . . . . . . . . . . . . . . . . . . . . .4
1.10 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . .5
1.11 Other Payments . . . . . . . . . . . . . . . . . . . . . . . .6
1.12 Increased Costs . . . . . . . . . . . . . . . . . . . . . . .6
1.13 Additional Interest. . . . . . . . . . . . . . . . . . . . . .7
1.14 Payments and Computations. . . . . . . . . . . . . . . . . . .8
1.15 Payment on Non-Business Days . . . . . . . . . . . . . . . . .8
1.16 Extension of the Letter of Credit. . . . . . . . . . . . . . .8
1.17 Obligations Absolute . . . . . . . . . . . . . . . . . . . . .8
1.18 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE II
CONDITIONS OF ISSUANCE
2.01 Condition Precedent to Issuance of the
Letter of Credit . . . . . . . . . . . . . . . . . . . . . .10
2.02 Additional Conditions Precedent to Issuance
of the Letter of Credit . . . . . . . . . . . . . . . . . .10
2.03 Condition Precedent to Each Advance. . . . . . . . . . . . . .11
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties . . . . . . . . . . . . . . . .11
ARTICLE IV
COVENANTS OF THE COMPANY
4.01 Affirmative Covenants . . . . . . . . . . . . . . . . . . . .13
a. Preservation of Corporate Existence, Etc. . . . . . . . .13
b. Compliance with Laws, Etc. . . . . . . . . . . . . . . . .13
c. Maintenance of Insurance, Etc. . . . . . . . . . . . . . .14
d. Visitation Rights . . . . . . . . . . . . . . . . . . . .14
Section Page
e. Keeping of Books . . . . . . . . . . . . . . . . . . . . .14
f. Maintenance of Properties . . . . . . . . . . . . . . . .14
g. Reporting Requirements . . . . . . . . . . . . . . . . . .14
h. Officer's Certificate . . . . . . . . . . . . . . . . . .15
i. Other Agreements . . . . . . . . . . . . . . . . . . . . .15
j. Redemption or Defeasance of Bonds . . . . . . . . . . . .15
k. Registration of Bonds . . . . . . . . . . . . . . . . . .15
l. Continuance of Rating. . . . . . . . . . . . . . . . . . .15
4.02 Negative Covenants . . . . . . . . . . . . . . . . . . . . . .15
a. Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . .15
b. Mergers, Etc. . . . . . . . . . . . . . . . . . . . . . .16
c. Sales, Etc. of Assets . . . . . . . . . . . . . . . . . .16
d. Compliance with ERISA . . . . . . . . . . . . . . . . . .16
e. Amendment of Indenture or Related Document . . . . . . . .17
ARTICLE V
EVENTS OF DEFAULT
5.01 Events of Default . . . . . . . . . . . . . . . . . . . . . .17
5.02 Upon an Event of Default . . . . . . . . . . . . . . . . . . .19
ARTICLE VI
DEFINITIONS
6.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . .19
ARTICLE VII
MISCELLANEOUS
7.01 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . .23
7.02 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . .23
7.03 No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . .23
7.04 Accounting Terms . . . . . . . . . . . . . . . . . . . . . . .23
7.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . .23
7.06 Liability of the Bank . . . . . . . . . . . . . . . . . . . .25
7.07 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . .25
7.08 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . .26
7.09 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . .26
7.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . .26
7.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . .26
7.12 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . .26
EXHIBIT A - Form of Irrevocable Letter of Credit with Annexes A
through I thereto
EXHIBIT B - Form of Opinion of Counsel to the Company
EXHIBIT C - Form of Opinion of Bond Counsel
EXHIBIT D - Encumbrances
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT dated as of August 19,
1993, between KANSAS CITY POWER & LIGHT COMPANY, a corporation organized
and existing under the laws of the State of Missouri (the "Company"), and
DEUTSCHE BANK AG, ACTING THROUGH ITS NEW YORK AND CAYMAN ISLANDS BRANCHES
(the "Bank"). (Unless otherwise indicated, all capitalized terms used
herein shall have the meaning referred to or set forth in Article VI
hereof.)
WHEREAS, the Company requested the City of Burlington, Coffey
County, Kansas (the "Issuer") to issue pursuant to an Indenture of Trust
dated as of October 1, 1987 (the "Indenture"), naming Chemical Bank, as
trustee (the "Trustee"), $40,000,000 aggregate principal amount of the
Issuer's Customized Purchase Pollution Control Revenue Refunding Bonds,
Series 1987B (Kansas City Power & Light Company Project) (the "Bonds") to
various purchasers (the "Bond Purchasers") to refinance a portion of the
costs of acquisition, construction, and installation of certain air and
water pollution control and sewage and solid waste disposal facilities (the
"Project") in Coffey County, Kansas; and
WHEREAS, pursuant to an Equipment Lease Agreement (the "Lease")
dated as of October 1, 1987, between the Company and the Issuer, the
Company agreed to use the proceeds of the Bonds for the refinancing of the
Project, and the Company leased the Project to the Issuer, and pursuant to
an Equipment Sublease Agreement (the "Sublease") dated as of October 1,
1987, between the Issuer and the Company, the Project was subleased by the
Issuer to the Company for payments to be made by the Company in such
amounts and at such times as will be sufficient to timely pay the principal
and interest on the Bonds; and
WHEREAS, in order to induce the Bond Purchasers to purchase the
Bonds, the Company requested Barclays Bank PLC to issue its irrevocable
transferrable letter of credit (the "Original Letter of Credit") in the
amount of $43,747,945.21 of which $40,000,000 supports the payment of
principal of the Bonds, and $3,747,945.21 supports the payment of up to 285
days' accrued interest (computed at 12%) on the Bonds; and
WHEREAS, the Company has requested the Bank through its New
York Branch to issue an Alternate Letter of Credit (the "Letter of Credit")
in accordance with Section 4.4 of the Sublease to replace the Original
Letter of Credit.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Bank to issue the Letter of Credit, the parties hereto agree
as follows:
ARTICLE I
AMOUNT AND TERMS OF THE LETTER OF CREDIT
SECTION 1.01. The Letter of Credit. On the terms and conditions
hereinafter set forth, the Bank agrees, upon the request of the Company, to
issue the Letter of Credit dated August 19, 1993, through its New York
Branch to the Trustee in an amount not to exceed $43,747,945.21 (the
"Commitment") and expiring on or before the Scheduled Termination Date.
SECTION 1.02. Reimbursement. (a) Subject to Section 1.03 in the
case of a drawing under the Letter of Credit made pursuant to a Tender
Draft and Section 1.04 in the case of a drawing under the Letter of Credit
made pursuant to a Redemption Draft or a Purchase Draft and Section 1.05 in
the case of a drawing under the Letter of Credit made pursuant to an
Interest Draft, the Company hereby agrees to pay to the Bank by the close
of business on the date on which the Bank paid any draft presented under
the Letter of Credit (after the Bank shall have paid such draft) a sum
equal to the amount so paid under the Letter of Credit.
(b) The Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Company resulting
from each Demand Advance made from time to time hereunder and the amounts
of principal and interest payable and paid from time to time hereunder. In
any legal action or proceeding in respect of this Agreement, the entries
made in such account or accounts shall, in the absence of manifest error,
be conclusive evidence of the existence and amounts of the obligations of
the Company therein recorded.
SECTION 1.03. Tender Advances and Accrued Interest Advances. (a) If
the Bank shall make any payment under the Letter of Credit pursuant to a
Tender Draft and the conditions set forth in Section 2.03 shall have been
fulfilled, that portion of such payment with respect to the amount of
unpaid principal of the Bonds under such Tender Draft shall constitute a
tender advance made by the Bank to the Company on the date and in the
amount of such payment, each such advance being a "Tender Advance" and
collectively the "Tender Advances." The Company shall repay the aggregate
unpaid principal amount of all Tender Advances on the Scheduled Termination
Date. If the conditions set forth in Section 2.03 shall have been
fulfilled, that portion of the payment equal to the accrued interest, if
any, on the Bonds under such Tender Draft shall constitute an accrued
interest advance made by the Bank to the Company on the date and in the
amount of such payment, each such advance being an "Accrued Interest
Advance" and collectively the "Accrued Interest Advances." The Company
shall repay the unpaid principal amount of any Accrued Interest Advance and
accrued interest thereon on the first business day of the next calendar
month. If certified to the Bank by the Company as a payment being made
pursuant to this Section 1.03(a), upon such repayment, the Bank shall
reinstate the Letter of Credit in the principal amount of such Accrued
Interest Advance being repaid. The Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of
the Company resulting from each Tender Advance and each Accrued Interest
Advance made from time to time and the amounts of principal and interest
payable and paid from time to time hereunder. In any legal action or
proceeding in respect of this Agreement, the entries made in such account
shall, in the absence of manifest error, be conclusive evidence of the
existence and amounts of the obligations of the Company therein recorded.
(b) The Company shall pay interest on the unpaid principal amount of
each Tender Advance from the date of such Tender Advance until such
principal amount shall become due, at the Domestic Rate or the Eurodollar
Rate as selected by the Company pursuant to Section 1.08. The Company
shall pay interest on the unpaid principal amount of each Accrued Interest
Advance from the date of such Accrued Interest Advance until such principal
amount shall become due, at the Domestic Rate.
SECTION 1.04. Redemption Advances and Purchase Advances. (a) If the
Bank shall make any payment under the Letter of Credit pursuant to a
Redemption Draft and the conditions set forth in Section 2.03 shall have
been fulfilled, such payment shall constitute a redemption advance made by
the Bank to the Company on the date and in the amount of such payment, each
such redemption advance being a "Redemption Advance" and collectively the
"Redemption Advances." If the Bank shall make any payment under the Letter
of Credit pursuant to a Purchase Draft and the conditions set forth in
Section 2.03 shall have been fulfilled, such payment shall constitute a
purchase advance made by the Bank to the Company on the date and in the
amount of such payment, such purchase advance being a "Purchase Advance"
and collectively the "Purchase Advances". (Purchase Advances together with
Redemption Advances are hereinafter sometimes referred to individually as a
"Term Advance" and collectively as the "Term Advances.")
(b) The Company shall repay the aggregate unpaid principal amount of
all Term Advances on the Scheduled Termination Date. The Bank shall
maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Company resulting from each Redemption
Advance and Purchase Advance made from time to time and the amounts of
principal and interest payable and paid from time to time hereunder. In
any legal action or proceeding in respect of this Agreement, the entries
made in such account or accounts shall, in the absence of manifest error,
be conclusive evidence of the existence and amounts of the obligations of
the Company therein recorded.
(c) The Company shall pay interest on the unpaid principal amount of
each Term Advance from the date of such Term Advance until such principal
amount shall become due, at the Domestic Rate or the Eurodollar Rate as
selected by the Company pursuant to Section 1.08.
SECTION 1.05. Interest Advances. (a) If the Bank shall make any
payment under the Letter of Credit pursuant to an Interest Draft, such
payment shall constitute an interest advance made by the Bank to the
Company on the date and in the amount of such payment, each such interest
advance being an "Interest Advance" and collectively the "Interest
Advances." The Company shall repay each Interest Advance on the same day
such Interest Advance is made by the Bank, but in any event after the Bank
honors a draw under the Letter of Credit pursuant to an Interest Draft
related thereto.
(b) The Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company resulting
from each Interest Advance made from time to time and the amounts of
principal and interest payable and paid from time to time hereunder. In
any legal action or proceeding in respect of this Agreement, the entries
made in such account shall, in the absence of manifest error, be conclusive
evidence of the existence and amounts of the obligations of the Company
therein recorded.
SECTION 1.06. Interest on Overdue Amounts. Any amount payable
pursuant to this Agreement which is not paid when due, whether at stated
maturity, by acceleration or otherwise, shall bear interest from and
including the date the same becomes due until such amount is paid in full,
payable on demand, at such fluctuating interest rate at all times equal to
the Alternate Base Rate plus 2%.
SECTION 1.07. Interest Payments. The Company shall pay interest in
arrears on the unpaid principal amount of each Advance (other than an
Accrued Interest Advance) from the date of such Advance until such
principal amount shall become due, payable (i) quarterly on the last day of
each March, June, September and December during the term thereof and on the
Scheduled Termination Date, and (ii) in addition, on the last day of each
Interest Period (as hereinafter defined) for such Advance if such Advance
is a Eurodollar Advance. The Company shall pay interest in arrears on the
unpaid principal amount of each Accrued Interest Advance from the date of
such Accrued Interest Advance until such principal amount shall become due,
payable on the first business day of the next calendar month.
SECTION 1.08. Selection of Interest Rates. Subject to Section
1.09(c) below, the Company may from time to time select for each Tender
Advance or for each Term Advance in an unpaid principal amount equal to or
greater than $1,000,000 either the Domestic Rate or the Eurodollar Rate,
provided that the Company shall also select a Business Day on which the
Domestic Rate or the Eurodollar Rate, as the case may be, shall begin for
such Tender Advance or for such Term Advance and that telephonic notice
thereof (such notice to be confirmed by the Company immediately in writing)
is given to the Bank on or before such Business Day in the case of
selection of the Domestic Rate, and at least four Business Days prior to
such Business Day in case of selection of the Eurodollar Rate. The
interest rate selected for any Tender Advance or for any Term Advance by
the Company pursuant to this Section 1.08 shall continue thereafter in
effect for such Tender Advance or for such Term Advance until the Business
Day which the Company shall subsequently select pursuant hereto as the
Business Day on which another interest rate hereunder shall begin for such
Tender Advance or for such Term Advance. If during the term of any Tender
Advance or any Term Advance the Company changes the interest rate for such
Tender Advance or such Term Advance from the Eurodollar Rate to the
Domestic Rate, the Business Day on which the Domestic Rate shall then begin
shall be the last day of the Interest Period for such Tender Advance or
such Term Advance. In the event that the Tender Advance or the Term
Advance shall be in an amount less than $1,000,000 or the Company shall
fail to select an interest rate, the interest rate shall be the Domestic
Rate.
SECTION 1.09. Interest Periods. (a) If and so long as the
Eurodollar Rate shall be selected for any Tender Advance or Term Advance,
the period between the Business Day on which such rate shall then begin for
such Eurodollar Advance and the date of payment in full of such Eurodollar
Advance shall be divided into successive periods, each such period being an
"Interest Period" for such Eurodollar Advance. The initial Interest Period
for such Eurodollar Advance at that time shall begin on such Business Day
and each subsequent Interest Period for such Eurodollar Advance at the time
shall begin on the last day of the immediately preceding Interest Period.
The duration of each Interest Period for any Eurodollar Advance shall be
30, 90, or 180 days as the Company may, upon telephonic notice given to the
Bank at least two Business Days prior to the first day of such Interest
Period (such notice to be confirmed by the Company immediately in writing),
select; provided, however, that:
(i) if the Company fails so to select the duration of any
Interest Period, the duration of such Interest Period shall be 30
days; and
(ii) the duration of any Interest Period which begins prior to
the Scheduled Termination Date and would otherwise end after such
date shall end on such date.
(b) If it shall become unlawful for the Bank to obtain funds in the
London interbank market in order to fund or maintain Eurodollar Advances or
otherwise to perform its obligations hereunder with respect to any such
Eurodollar Advances, upon notice by the Bank to the Company, the rate of
interest on all Eurodollar Advances shall thereupon be the Domestic Rate.
The right of the Company to select the Eurodollar Rate for any Tender
Advance and for any Term Advance shall cease for the period during which
such illegality shall occur and be continuing. The rate of interest on all
Eurodollar Advances shall thereupon be the Domestic Rate.
(c) On and after the date on which the unpaid principal amount of
any Tender Advance or any Term Advance shall be reduced, by payment or
prepayment or otherwise, to less than $1,000,000, the rate of interest on
the unpaid principal amount of such Tender Advance or such Term Advance
shall be the Domestic Rate and the right of the Company to select a rate
other than the Domestic Rate for such Tender Advance or such Term Advance
shall terminate; provided, however, that if and so long as such Tender
Advance or Term Advance shall bear the same rate (other than the Domestic
Rate) for the same Interest Period as other Tender Advances or other Term
Advances and the aggregate unpaid principal amount of all such Tender
Advances and Term Advances shall equal or exceed $1,000,000, the Company
shall have the right to select such rate for such Interest Period for such
Tender Advance and such Term Advance.
SECTION 1.10. Prepayments. (a) The Company may prepay in whole or
in part the outstanding amount of any Accrued Interest Advance with accrued
interest to the date of such prepayment on the amount prepaid; provided,
however, that the Company shall, simultaneously with the making of such
prepayment, give notice to the Bank by telephone (which shall be confirmed
immediately in writing) or telegraph of such prepayment, which notice shall
specify (i) the amount of such prepayment and (ii) the amount of accrued
interest transmitted with such prepayment.
(b) The Company may, upon at least two Business Days' notice to the
Bank, prepay the outstanding amount of any Advance (other than an Accrued
Interest Advance) in whole or in part with accrued interest to the date of
such prepayment on the amount prepaid and once notice is given the Company
shall prepay such amount; provided, however, that any prepayment of any
Eurodollar Advance shall be made on, and only on, the last day of an
Interest Period for such Eurodollar Advance, unless the Company shall pay
to the Bank in accordance with Section 1.12 an amount sufficient to
compensate the Bank for any loss or expenses incurred by it by reason of
such prepayment on a day other than the last day of the relevant Interest
Period; provided, further, that in the case of a prepayment certified to
the Bank by the Trustee as a payment made pursuant to subsection (c) of
this Section, the Company shall on the date of such prepayment pay interest
accrued on such Advance to the date of prepayment, together with an amount
sufficient to compensate the Bank for any loss or expenses in accordance
with Section 1.12.
(c) Prior to or simultaneously with the resale of any Bonds held by
the Custodian on behalf of the Company under the Custody Agreement as a
result of a draw or draws under the Letter of Credit by a Tender Draft or
Tender Drafts, the Company shall cause the Trustee to prepay Tender
Advances, on behalf of the Company, in the order in which they were made,
by paying to the Bank an amount equal to the sum of (i) that portion of any
Tender Advances equal to 100% of the principal amount of any such Bonds
resold or to be resold and (ii) that portion of the Accrued Interest
Advances (the "Corresponding Accrued Interest Advances") which bears the
same ratio to the total unreimbursed Accrued Interest Advances as the
principal amount of such Bonds sold or to be resold bears to the principal
amount of all such Bonds held by the Custodian on behalf of the Company
under the Custody Agreement. Such payments shall, if certified to the Bank
by the Trustee in a certificate, completed and signed, by the Trustee, in
the form of Annex H to the Letter of Credit as payments being made pursuant
to this Section 1.10(c), be applied by the Bank in reimbursement of such
drawings (and as prepayment of the Tender Advances and the Corresponding
Accrued Interest Advances resulting from such drawings in the manner
described above). The Company irrevocably authorizes the Bank to rely on
such certificate and to reinstate the Letter of Credit in accordance
therewith.
(d) Prior to or simultaneously with the resale of any Bonds held by
the Custodian on behalf of the Company under the Custody Agreement as a
result of a draw under the Letter of Credit by a Purchase Draft or Purchase
Drafts, the Company shall cause the Trustee to prepay Purchase Advances, on
behalf of the Company, in the order in which they were made by paying to
the Bank an amount equal to that portion of any Purchase Advances equal to
100% of the principal amount of any such Bonds resold or to be resold.
Such payments shall, if certified to the Bank by the Trustee in a
certificate, completed and signed, by the Trustee, in the form of Annex H
to the Letter of Credit as payments being made pursuant to this Section
1.10(d), be applied by the Bank in reimbursement of such drawings (and as
prepayment of the Purchase Advances resulting from such drawings in the
manner described above). The Company irrevocably authorizes the Bank to
rely on such certificate and to reinstate the Letter of Credit in
accordance therewith.
(e) Amounts received by the Bank from the Company or the Trustee on
behalf of the Company in reimbursement for drawings under the Letter of
Credit shall be applied first in reimbursement of any unreimbursed drawings
made by an Interest Draft, unless such amounts are accompanied by a
certificate as described in subsection (c) or (d) of this Section 1.10, or
in Section 1.03(a).
SECTION 1.11. Other Payments. The Company hereby agrees to pay to
the Bank such fees as are set forth in a letter of even date from the
Company to the Bank.
SECTION 1.12. Increased Costs. (a) If either (i) the introduction
of or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements other than those referred to
in Section 1.13 below) in or in the interpretation of any law or regulation
or (ii) the compliance by the Bank with any guideline or request from any
central bank or other governmental authority (whether or not having the
force of law), shall result in any increase in the cost to the Bank of
making, funding or maintaining Eurodollar Advances, then the Company shall
from time to time, upon demand by the Bank, pay to the Bank additional
amounts sufficient to indemnify the Bank against such increased cost. A
certificate as to the amount of such increased cost and a reasonable
explanation thereof, submitted to the Company by the Bank, shall constitute
such demand and shall, in the absence of manifest error, be conclusive and
binding for all purposes.
(b) If, due to (i) conversions of the type of interest rate pursuant
to Section 1.08, (ii) prepayments pursuant to Section 1.10 (whether by
direct or applied payments), (iii) acceleration of the maturity of the
Advances pursuant to Section 5.02, or (iv) any other reason, the Bank
receives payments of principal of any Eurodollar Advance or is subject to a
conversion of a Eurodollar Advance into another type of Advance other than
on the last day of an Interest Period relating to such Advance, the Company
shall, promptly after demand by the Bank, pay to the Bank any amounts
required to compensate the Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or
conversion, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by the Bank to fund or maintain such Eurodollar Advance. A
certificate setting forth the amount of such additional losses, costs or
expenses and giving a reasonable explanation thereof, submitted by the Bank
to the Company, shall constitute such demand and shall, in the absence of
manifest error, be conclusive and binding for all purposes.
(c) In the event that after the date of this Agreement the
implementation of or any change in any law, rule, regulation, guideline or
directive (whether or not having the force of law) or the interpretation or
administration thereof by any court, central bank or administrative or
governmental authority charged with the administration thereof shall:
(i) subject the Bank to any tax or shall change the basis of
taxation of the Bank (other than a change in the rate of tax based on
the overall net income of the Bank);
(ii) impose, modify or deem applicable any reserve, special
deposit, capital adequacy or similar requirement (including without
limitation a requirement which affects the manner in which the Bank
allocates capital resources to its commitments, including its
obligations hereunder); or
(iii) impose upon the Bank any other condition regarding this
Agreement or the Letter of Credit;
and as a result of any of the foregoing (x) the cost to the Bank of issuing
or maintaining the Letter of Credit or maintaining any Advances hereunder
is increased, (y) any amounts payable by the Company hereunder are reduced
or (z) the rate of return on the Bank's capital as a consequence of its
obligations hereunder or its issuance and maintenance of the Letter of
Credit or Advances hereunder is reduced to a level below that which the
Bank could have achieved but for such above circumstances, then and in each
such case, the Bank will promptly notify the Company of such event by a
certificate of the Bank setting forth in reasonable detail an explanation
of the additional amount or amounts to be paid. Within 15 days after
receipt of such certificate the Company shall pay for the account of the
Bank such additional amount or amounts to compensate the Bank.
SECTION 1.13. Additional Interest. The Company shall pay to the
Bank additional interest on the unpaid principal amount of each Advance
during the periods such Advance shall be a Eurodollar Advance until such
principal amount is paid in full, payable on each day on which interest on
such Advance is payable under Section 1.07, at an interest rate per annum
equal at all times during each Interest Period for such Advance, to the
excess of (i) the rate obtained by dividing the LIBO Rate for such Interest
Period by a percentage equal to 100% minus the reserve percentage
applicable during such Interest Period under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or if more
than one such percentage is so applicable, minus the daily average for such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) for determining the maximum reserve
requirement (including, without limitation, any marginal reserve
requirement) for the Bank in respect of liabilities or assets consisting of
or including Eurocurrency liabilities over (ii) the LIBO Rate for such
Interest Period.
SECTION 1.14. Payments and Computations. Except as otherwise
provided herein, the Company shall make each payment hereunder not later
than 12:00 P.M. (New York time) on the day when due in lawful money of the
United States of America to the Bank ABA #026003780 for credit to
Syndication Clearing Account No. 100440240008 with the reference to Kansas
City or such other account as the Bank may indicate in writing from time to
time. The Company hereby authorizes the Bank, if and to the extent payment
is not made when due hereunder, to charge from time to time against any or
all of the Company's accounts with the Bank any amount so due. All
computations of interest at the Domestic Rate or the Eurodollar Rate, and
the letter of credit commission hereunder shall be made by the Bank on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) elapsed.
SECTION 1.15. Payment on Non-Business Days. Whenever any payment to
be made hereunder shall be stated to be due, or whenever the last day of
any Interest Period would otherwise occur, on a day which is not a Business
Day, such payment shall be made, and the last day of such Interest Period
shall occur, on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of
interest or commission, as the case may be; provided, however, if such
extension would cause such payment of a Eurodollar Advance to be made or
the last day of such Interest Period to occur in a new calendar month, such
payment shall be made and the last day of such Interest Period shall occur
on the next preceding Business Day.
SECTION 1.16. Extension of the Letter of Credit. If the Company, at
least eighteen months prior to the Scheduled Termination Date of the Letter
of Credit, has requested the Bank to extend the Letter of Credit, and the
Bank is willing to extend the Letter of Credit, the Bank shall give written
notice thereof to the Company (together with the conditions to such
extension) at least twelve months prior to the Scheduled Termination Date.
If the Bank shall not so notify the Company, the Bank shall be deemed not
to have consented. The Company acknowledges that the Bank has no
obligation to, and has given no assurance, undertaking or commitment that
it will, extend (or consider extending) the Letter of Credit.
SECTION 1.17. Obligations Absolute. The payment obligations of the
Company under this Agreement shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including, without limitation, the following circum-
stances and regardless of the use of proceeds of any drawing under the
Letter of Credit or any defense to payment related thereto:
(i) any lack of validity or enforceability of the Letter of
Credit, the Bonds, the Indenture, the Lease, the Sublease, or any
other agreement or instrument relating thereto (collectively the
"Related Documents");
(ii) any amendment or waiver of or any consent to departure
from all or any of the Related Documents;
(iii) the existence of any claim, set-off, defense or other
right which the Company may have at any time against the Trustee, any
beneficiary or any transferee of the Letter of Credit (or any persons
or entities for whom the Trustee, any such beneficiary or any such
transferee may be acting), the Bank or any other person or entity,
whether in connection with this Agreement, the transactions
contemplated herein or in the Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the Bank under the Letter of Credit against
presentation of a draft or certificate which does not comply with the
terms of the Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; provided however that such
circumstance or happening shall not have been the result of the gross
negligence or willful misconduct of the Bank.
SECTION 1.18. Taxes. All payments hereunder are payable free and
clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges (the
"Taxes"). For so long as it remains lawfully able to do so, the Bank shall
furnish to the Company such Internal Revenue Service forms as are
appropriate to permit the Company to make payments hereunder free of United
States income tax withholding tax. If, as a result of any change in
applicable law or regulations or in the interpretation thereof by any
governmental authority charged with the administration thereof, or the
introduction of any law or regulation, any Taxes are required to be
withheld or deducted from any amount payable to the Bank hereunder, the
amount payable will be increased to the amount which, after deduction from
such increased amount of all Taxes required to be withheld or deducted
therefrom, will yield to the Bank the amount stated to be payable
hereunder. Notwithstanding the foregoing, the Company shall not be
required to pay any increased amounts pursuant to this Section 1.18 on
account of any income taxes of general applicability imposed on the Bank by
the United States of America or any political subdivision thereof in which
the Bank is organized, qualified to do business or has an office. The
Company will execute and deliver to the Bank at its request such further
instruments as may be necessary or desirable to give full force and effect
to any such increase. The Company will, upon the request of the Bank,
provide the Bank with evidence satisfactory to it of the payment of any
Taxes. If any of the Taxes required to be borne by the Company pursuant to
this Section 1.18 are paid by the Bank, the Company will, upon demand of
the Bank, reimburse the Bank for such payments, together with any interest,
penalties and expenses in connection therewith.
ARTICLE II
CONDITIONS OF ISSUANCE
SECTION 2.01. Condition Precedent to Issuance of the Letter of
Credit. The obligation of the Bank to issue the Letter of Credit is
subject to the condition precedent that the Bank shall have received on or
before the date of the issuance of the Letter of Credit the following, each
dated such day, in form and substance satisfactory to the Bank:
(a) Certified copies of the resolutions of the Board of
Directors of the Company authorizing the Company to enter into this
Agreement, approving the Letter of Credit and the other matters
contemplated hereby.
(b) Originals (or copies certified by the Secretary or
Assistant Secretary of the Company) of approvals or orders of the
public utility regulatory commissions of the States of Missouri and
Kansas necessary for the Company with respect to this Agreement.
(c) A certificate of the Secretary or Assistant Secretary of
the Company, certifying the names and true signatures of the officers
of the Company authorized to sign this Agreement and the other
documents to be delivered by it hereunder.
(d) Opinion of Samuel P. Cowley, Esq., Senior Vice President
and Chief Legal Officer for the Company, in substantially the form of
Exhibit B hereto and as to such other matters as the Bank may
reasonably request.
(e) Opinion of Chapman and Cutler, Bond Counsel, in
substantially the form of Exhibit C hereto and as to such other
matters as the Bank may reasonably request, including advice from
such Bond Counsel to the Bank that the Bank may rely on such opinion.
(f) A transcript relating to the issuance of the Bonds.
(g) Such other documents, instruments, approvals (and, if
requested by the Bank, certified duplicates of executed copies
thereof) or opinions as the Bank may reasonably request.
SECTION 2.02. Additional Conditions Precedent to Issuance of the
Letter of Credit. The obligation of the Bank to issue the Letter of Credit
shall be subject to the further conditions precedent that on the date of
the issuance of the Letter of Credit:
(a) The following statements shall be true and the Bank shall
have received a certificate signed by a duly authorized officer of
the Company, dated the date of such issuance, stating that:
(i) the representations and warranties contained in
Section 3.01 of this Agreement are correct on and as of the
date of issuance of the Letter of Credit as though made on and
as of such date; and
(ii) no event has occurred and is continuing, or would
result from the issuance of the Letter of Credit, which
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time
elapse or both.
(b) The Issuer and the Trustee have duly authorized and
executed the Indenture and the Indenture continues to be in full
force and effect.
(c) The Issuer and the Company have duly authorized and
executed the Lease and the Sublease and the Lease and the Sublease
continue to be in full force and effect.
(d) The Issuer has duly executed, issued and delivered the
Bonds.
(e) The Bank shall have received such other approvals,
opinions or documents as the Bank may reasonably request.
SECTION 2.03. Condition Precedent to Each Advance. Each payment
made by the Bank pursuant to a Tender Draft, a Redemption Draft or a
Purchase Draft under the Letter of Credit shall constitute an Advance
hereunder only if it shall be true on the date of such payment that no
event has occurred and is continuing, or would result from such Advance,
which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both. Unless the Company shall have otherwise previously advised the Bank
in writing, payment by the Bank pursuant to a Tender Draft, a Redemption
Draft or a Purchase Draft shall be deemed to constitute a representation
and warranty by the Company that on the date of such payment the above
statement is true.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties. The Company
represents and warrants as follows:
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Missouri
and is duly qualified to do business in, and is in good standing
under the laws of, the State of Kansas.
(b) The execution, delivery and performance by the Company of
this Agreement and each Related Document to which it is a party are
within the Company's corporate powers, have been duly authorized by
all necessary corporate action, do not contravene (i) the Company's
charter or by-laws (ii) any law or contractual restriction
(including, but not limited to, any restriction in the Indenture)
binding on or affecting the Company, and do not result in or require
the creation of any lien, security interest or other charge or
encumbrance (other than pursuant to this Agreement and the Related
Documents) upon or with respect to any of its properties; or
(iii) any other instruments 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 may be subject, or any law, order, rule or regulation
applicable to the Company or any court, federal or state, regulatory
body, administrative agency or other governmental body having
jurisdiction over the Company.
(c) The public utility regulatory commissions of the States of
Missouri and Kansas have duly issued current orders authorizing the
Company to enter into this Agreement, and the Commissions have duly
issued previous orders authorizing the Company to enter into the
Lease, the Sublease and any other documents that such commissions
have jurisdiction over and to which the Company is a party and the
Related Documents to which it is a party, and such orders remain in
full force and effect in the form issued. Except for the approvals
of the Board of Commissioners of Coffey County, Kansas, and the City
Council of the City of Burlington, Kansas, approving issuance of the
Bonds, which approvals have been duly obtained and are in full force
and effect, and the notice of timely filing with the Board of Tax
Appeals of the State of Kansas, which has been given, no other
authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the
Company of this Agreement or any Related Document to which it is a
party.
(d) This Agreement is, and each Related Document to which the
Company is a party is the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
respective terms (except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally).
(e) Except as disclosed on in the Company's Form 10-K for the
year 1992, Forms 10-Q for the periods March 31, 1993 and June 30,
1993, and Form 8-K dated August 16, 1993, there is no pending or, to
the best of the Company's knowledge, threatened action or
investigation or proceeding before any court, governmental agency or
arbitrator against or affecting the Company which may materially
adversely affect the financial condition or total operations of the
Company.
(f) The balance sheet of the Company as at December 31, 1992,
and the related statements of income and retained earnings and of
changes in financial position of the Company for the fiscal year then
ended, certified by Coopers & Lybrand, independent public
accountants, copies of which have been furnished to the Bank, and the
balance sheet of the Company as at June 30, 1993, and the related
statements of retained earnings for the six months then ended, signed
by the Controller of the Company, copies of which are contained in
the Company's 10-Q dated as of June 30, 1993, a copy of which has
been furnished to the Bank, fairly present the financial condition of
the Company as at such respective dates and the results of the
operations of the Company for the period ended on such respective
dates, all in accordance with generally accepted accounting
principles consistently applied, and since June 30, 1993, there has
been no material adverse change in the financial condition or total
operations of the Company other than disclosed or contemplated in the
notes to the financials in the Company's 10-Q dated June 30, 1993.
(g) Except for information contained therein describing any
bank, as to which no representation is made, the Official Statement
(said Official Statement, together with the documents incorporated
therein by reference, being the "Official Statement") dated October
29, 1987, of the Issuer relating to the Bonds is, and the Preliminary
Official Statement (said Preliminary Official Statement, together
with the documents incorporated therein by reference being the
"Preliminary Official Statement") dated October 16, 1986, of the
Issuer relating to the Bonds as of its date of issue was to the best
of the Company's knowledge, and any supplement or amendment to either
thereof shall be, accurate in all material respects for the purposes
for which its use is, was, or shall be, authorized; and the Official
Statement does not, the Preliminary Official Statement as of its date
of issue did not to the best of the Company's knowledge, and any such
supplement or amendment shall not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements made therein, in the light of the circumstances under
which they are or were made, not misleading.
(h) No Termination Event has occurred nor is reasonably
expected to occur with respect to any Plan.
(i) The Company does not contribute to any Multiemployer Plan
and has not incurred and does not expect to incur any withdrawal
liability with respect to any such plan.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.01. Affirmative Covenants. So long as a drawing is avail-
able under the Letter of Credit or the Bank shall have any Commitment
hereunder or the Company shall have any obligation to pay any amount to the
Bank hereunder, the Company will, unless the Bank shall otherwise consent
in writing:
(a) Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and
privileges in the state of its incorporation and qualify and remain
qualified as a foreign corporation in each jurisdiction in which such
qualification is reasonably necessary in view of its business and
operations or the ownership of its properties.
(b) Compliance with Laws, Etc. Comply in all respects with
all applicable laws, rules, regulations and orders of any govern-
mental authority, the non-compliance with which would materially and
adversely affect the financial condition or operations of the
Company, such compliance to include, without limitation, paying
before the same become delinquent all material taxes, assessments and
governmental charges imposed upon it or upon its property, except to
the extent compliance with any of the foregoing is then being
contested in good faith.
(c) Maintenance of Insurance. Maintain insurance with
responsible and reputable insurance companies or associations or
through its own program of self-insurance in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Company operates.
(d) Visitation Rights. At any reasonable time and from time
to time, permit the Bank or any of its agents or representatives at
their own expense to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Company and to discuss the affairs, finances and accounts of the
Company with any of its officers.
(e) Keeping of Books. Keep proper books of record and
account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Company in
accordance with generally accepted accounting principles consistently
applied (except as disclosed in the notes to the balance sheet and
related statements of income and retained earnings).
(f) Maintenance of Properties. Maintain and preserve its
properties that are necessary to maintain its operating system in
good working order and condition, ordinary wear and tear excepted.
(g) Reporting Requirements. Furnish to the Bank the
following: (i) as soon as possible, and in any event within 3 days
after the occurrence of each Event of Default or each event which,
with the giving of notice or lapse of time, or both, would constitute
an Event of Default, continuing on the date of such statement, a
statement of the chief financial officer (or in his absence, a
principal financial officer) of the Company setting forth details of
such Event of Default or event and the action which the Company
proposes to take with respect thereto; (ii) as soon as available and
in any event within 10 days after the filing of each quarterly report
on Form 10-Q by the Company with the Securities and Exchange
Commission, a copy of each such quarterly report, together with a
certificate of the chief accounting officer (or in his absence, a
principal financial officer) of the Company confirming as of the end
of such quarter the truth of the statement set forth in Section
2.02(a)(ii) of this Agreement; (iii) as soon as available and in any
event within 10 days after the filing of each annual report on Form
10-K by the Company with the Securities and Exchange Commission, a
copy of each such annual report containing financial statements for
such year certified by nationally recognized independent public
accountants, together with a certificate of the chief accounting
officer (or in his absence, a principal financial officer) of the
Company confirming as of the end of such quarter the truth of the
statement set forth in Section 2.02(a)(ii) of this Agreement;
(iv) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Company
sends to any of its stockholders, and copies of all regular, periodic
and special reports and all registration statements, which the
Company files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor; (v) as soon
as possible and in any event within (A) 30 days after the Company or
any of its Affiliates knows or has reason to know that any
Termination Event described in clause (i) of the definition of
Termination Event with respect to any Plan has occurred and
(B) within 10 days after the Company or any of its Affiliates knows
or has reason to know that any other Termination Event with respect
to any Plan has occurred, a statement of the chief accounting officer
(or in his absence a principal financial officer) of the Company
describing such Termination Event and the action, if any, which the
Company or such Affiliate proposes to take with respect thereto;
(vi) promptly and in any event within two Business Days after receipt
thereof by the Company or any of its Affiliates from the Pension
Benefit Guaranty Corporation ("PBGC"), copies of each notice received
by the Company or any such Affiliate of the PBGC's intention to
terminate any Plan or to have a trustee appointed to administer any
Plan; and (vii) such other information respecting the business,
properties or the condition or operations, financial or otherwise, of
the Company as the Bank may from time to time reasonably request in
writing.
(h) Officer's Certificate. In the event that an Advance is
made pursuant to Sections 1.03 or 1.04 hereunder, the Company shall
deliver to the Bank every ninety (90) days commencing ninety (90)
days from the date such Advance is made until all outstanding
Advances have been paid in full, a certificate signed by a duly
authorized officer of the Company stating that the representations
and warranties contained in Section 3.01 are correct on and as of
such date as though made on and as of such date.
(i) Other Agreements. Perform and comply with each of the
terms, provisions and conditions, on its part to be performed or
complied with, contained in the Indenture, the Lease and the
Sublease.
(j) Redemption or Defeasance of Bonds. Use its best efforts
to cause the Trustee, (A) upon a redemption or defeasance of less
than all of the Bonds pursuant to the Indenture, to furnish to the
Bank a notice in the form of Annex G to the Letter of Credit, and (B)
upon a redemption or defeasance of all of the Bonds pursuant to the
Indenture, to surrender the Letter of Credit to the Bank for
cancellation.
(k) Registration of Bonds. Cause all Bonds which it acquires,
or which it has acquired for its account, to be registered forthwith
in accordance with the Indenture in the name of the Company.
(l) Continuance of Rating. Use its best efforts to cause the
Bonds to continue to be rated by Moody's Investors Service or
Standard & Poor's Corporation.
SECTION 4.02. Negative Covenants. So long as a drawing is available
under the Letter of Credit or the Bank shall have any Commitment hereunder
or the Company shall have any obligation to pay any amount to the Bank
hereunder, the Company will not, without the written consent of the Bank:
(a) Liens, Etc. Create, incur, assume or suffer to exist any
lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement, upon or with respect to any of its
properties or assets, whether now owned or hereafter acquired, or
assign any right to receive income, in each case to secure any
Obligation of any person, other than (i) purchase money liens or
purchase money security interests upon or in any property acquired or
held by the Company in the ordinary course of business to secure the
purchase price of such property or to secure indebtedness incurred
solely for the purpose of financing the acquisition of such property,
(ii) liens or security interests existing on such property at the
time of its acquisition, (iii) liens, security interests, charges or
encumbrances on or over, gas, oil, coal, fissionable material or
other fuel or fuel products as security for an Obligation incurred by
the Company for the sole purpose of financing the acquisition or
storage of such fuel or fuel products or, with respect to nuclear
fuel, the processing, reprocessing, sorting, storage and disposal
thereof, (iv) liens, security interests, charges or encumbrances on
or over all or any part of its undertaking or assets employed wholly
or mainly in or arising directly from any specific construction
project or generating plant as security for an Obligation incurred by
the Company for the purpose of financing all or any part of such
construction project or generating plant, (v) the lien of the
Indenture of Mortgage and Deed of Trust dated as of December 1, 1946,
from the Company to Continental Illinois National Bank and Trust
Company of Chicago and the lien of the General Mortgage Indenture and
Deed of Trust dated December 1, 1986, from the Company to United
Missouri Bank of Kansas City, N.A. (the "Mortgages"), (vi)
encumbrances listed on Exhibit D attached hereto, (vii) security
interests granted in, or sale of, the Company's accounts receivable,
and (viii) sales or transfers of property by the Company and renting
or leasing back such property, provided that all such property in the
aggregate does not exceed fifteen percent (15%) of all the Company's
assets.
(b) Mergers, Etc. Merge with or into or consolidate with or
into, or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) or
acquire all or substantially all of the assets, other than utility
assets, of, any person or entity, except that the Company may merge
or consolidate with any person or entity on condition in each case
that, (i) immediately after giving effect thereto, no event shall
occur and be continuing which constitutes an Event of Default or
which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, (ii) the consolidation or merger
shall not materially and adversely affect the ability of the Company
to perform its obligations hereunder or under the Related Documents,
and (iii) the corporation formed by any such consolidation or into
which the Company shall be merged shall assume the Company's obliga-
tions and performance of the Company's covenants hereunder and under
the Related Documents in a writing satisfactory in form and substance
to the Bank.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or, except as otherwise permitted under Section 4.02(a),
pledge or otherwise encumber more than fifteen percent (15%) of its
assets, except in the ordinary course of its business or in
connection with a transaction authorized by subsection (b) of this
Section 4.02.
(d) Compliance with ERISA. (i) Voluntarily terminate any
Plan, so as to result in any material liability of the Company to
PBGC or (ii) enter into any Prohibited Transaction (as defined in
Section 4975 of the Internal Revenue Code of 1986, as amended, and in
ERISA) involving any Plan which results in any material liability of
the Company, (iii) cause any occurrence of any Reportable Event which
results in any material liability of the Company to PBGC or (iv)
allow or suffer to exist any other event or condition known to the
Company which results in any material liability of the Company to
PBGC.
(e) Amendment of Indenture or Related Document. Enter into or
consent to any amendment or modification of, the Indenture, the
Lease, the Sublease or any other Related Document, which would
adversely affect the Bank or change its obligations under the Letter
of Credit, without first obtaining the express prior written consent
of the Bank thereto.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. The occurrence of any of the
following events shall be an "Event of Default" hereunder unless waived by
the Bank pursuant to Section 7.01 hereof:
(a) the Company shall fail to pay any amount payable to the
Bank under any provision of Article I when due except as provided in
(b) below; or
(b) the Company shall fail to pay any amount of an Interest
Advance within one (1) day after such amount becomes due; or
(c) any representation or warranty made by the Company herein
or by the Company (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(d) the Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement, and any such
failure shall remain unremedied for 10 days after written notice
thereof shall have been given to the Company by the Bank; or
(e) any material provision of this Agreement or the letter
referred to in Section 1.11 hereof shall at any time for any reason
cease to be valid and binding upon the Company, or shall be declared
to be null and void, or the validity or enforceability thereof shall
be contested by the Company, or a proceeding shall be commenced by
any governmental agency or authority having jurisdiction over the
Company seeking to establish the invalidity or unenforceability
thereof, or the Company shall deny that it has any or further
liability or obligation under this Agreement or the letter referred
to in Section 1.1 hereof; or
(f) the Company shall (x) fail to make any payment, equal to
or exceeding $10,000,000 of any Obligation or to make any payment,
equal to or exceeding $5,000,000, of any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Obligation, or (y) fail to perform or
observe any term, covenant or condition on its part to be performed
or observed under any agreement or instrument relating to any
Obligation when required to be performed or observed, and such
failure shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such
failure to perform or observe is to accelerate, or to permit the
acceleration of, the maturity of any Obligation, the unpaid principal
amount of which then equals or exceeds $10,000,000; or
(g) the Company shall generally not pay its debts as they
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors or shall institute any proceeding or voluntary case seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to
bankruptcy, reorganization or insolvency or relief or protection of
debtors or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property; or the
Company shall take any corporate action to authorize any of the
actions described above in this subsection (g); or any proceeding
shall be instituted against the Company seeking to adjudicate it a
bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement or adjustment of debts under any law
relating to bankruptcy, insolvency or reorganization or relief or
protection of debtors or seeking the entry of an order for relief or
the appointment of a trustee, receiver or custodian or other similar
official for it or for any substantial part of its property, and, if
such proceeding is being contested by the Company in good faith, such
proceeding shall remain undismissed or unstayed for a period of 60
days; or
(h) any judgment or order for the payment of money in excess
of $10,000,000 shall be rendered against the Company and either
(x) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (y) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) any Termination Event with respect to a Plan shall have
occurred, and, 30 days after notice thereof shall have been given to
the Company by the Bank, (i) such Termination Event (if correctable)
shall not have been corrected and (ii) the then present value of such
Plan's vested benefits exceeds (when aggregated with the amount of
any such excess under all other Plans to which a Termination Event
shall have occurred) the then current value of assets accumulated in
such Plan by more than the amount of $15,000,000 (or in the case of a
Termination Event involving the withdrawal of a "substantial
employer" (as defined in Section 4001(a)(2) of ERISA), the
withdrawing employer's proportionate share of such excess exceed such
amount); or
(j) any event of default under and as defined in the
Indenture, the Lease or the Sublease shall have occurred and be
continuing.
SECTION 5.02. Upon an Event of Default. If any Event of Default
shall have occurred and be continuing, the Bank may (i) by notice to the
Company, declare the obligation of the Bank to issue the Letter of Credit
to be terminated, whereupon the same shall forthwith terminate, or if the
Letter of Credit shall have been issued, (ii) give notice to the Trustee
pursuant to Section 701 of the Indenture of the occurrence and continuance
of an Event of Default hereunder, and (iii) declare the Advances, all
amounts payable under any provision of Article I, all interest thereon and
all other amounts payable hereunder to be forthwith due and payable,
whereupon the Advances, all amounts payable under any provision of Article
I, all interest thereon and all such other amounts shall become and be
forthwith due and payable, without presentment, demand, protest, or further
notice of any kind, all of which are hereby expressly waived by the
Company; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Company under the Federal
Bankruptcy Code, (i) the obligation of the Bank to issue the Letter of
Credit shall automatically be terminated and (ii) the Advances, all amounts
payable under any provision of Article I, all interest thereon and all
other amounts payable hereunder shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Company.
ARTICLE VI
DEFINITIONS
SECTION 6.01. Definitions. Unless otherwise indicated in this
Agreement, the capitalized terms used herein shall have the following
meanings:
"Accrued Interest Advance" has the meaning set forth in Section
1.03(a) hereof.
"Advances" means, collectively, Tender Advances, Accrued
Interest Advances, Redemption Advances and Purchase Advances, and an
"Advance" means any of them.
"Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the Company is a
member and which is under common control within the meaning of the
regulations under Section 414 of the Internal Revenue Code of 1986,
as amended.
"Alternate Base Rate" means a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the higher of:
(a) the rate of interest announced by the Bank in New
York City as the Bank's Prime Lending Rate for such day; and
(b) the sum of (i) .50%, plus (ii) the Federal Funds
Rate for such day.
The Banks' Prime Lending Rate is the fluctuating interest rate
announced by the Bank in New York City from time to time as its prime
lending rate for unsecured commercial loans to borrowers located in
the United States. The Bank's Prime Lending Rate is a reference rate
and does not necessarily represent the lowest or best rate actually
charged to any customer. The Bank may make commercial loans or
advances at rates of interest at, above or below its Prime Lending
Rate.
"Available Amount" in effect at any time means the maximum
amount available to be drawn at such time under the Letter of Credit
(the determination of such maximum amount to assume, throughout this
Agreement, compliance with all conditions for drawing and no
reduction for any amount drawn by an Interest Draft referred to in
the Letter of Credit (unless such amount is not reinstated under the
Letter of Credit)).
"Bonds" means the Issuer's Customized Purchase Pollution
Control Revenue Refunding Bonds, Series 1987B (Kansas City Power &
Light Company Project).
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Advance or Interest
Period therefor, on which dealings are carried on in the London
interbank market.
"Commitment" has the meaning set forth in Section 1.01 hereof.
"Company" means Kansas City Power & Light Company, a
corporation organized and existing under the laws of the State of
Missouri.
"Corresponding Accrued Interest Advances" has the meaning set
forth in Section 1.10(c) hereof.
"Custodian" means Chemical Bank, as custodian under the Custody
Agreement.
"Custody Agreement" means the Custody Agreement dated as of
October 1, 1987, between the Company and the Custodian and all
amendments, modifications and supplements thereto.
"Demand Advance" means a payment made by the Bank under the
Letter of Credit which is due pursuant to Section 1.02 hereof.
"Domestic Advance" means an Advance bearing interest at the
Domestic Rate.
"Domestic Rate" means an interest rate equal to 1/4 of 1% per
annum above the Alternate Base Rate.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurodollar Advance" means an Advance bearing interest at the
Eurodollar Rate.
"Eurodollar Interest Period" means an Interest Period in
respect of an Advance bearing interest at the Eurodollar Rate.
"Eurodollar Rate" during any Interest Period for any Advance
means an interest rate per annum equal at all times during each
Interest Period for such Advance to 3/4 of 1% per annum above the
LIBO Rate.
"Event of Default" shall have the meaning set forth in Section
5.01 hereof.
"Federal Funds Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Bank
from three Federal funds brokers of recognized standing selected by
it.
"Final Draft" has the meaning set forth in the Letter of
Credit.
"Indenture" means the Indenture of Trust dated as of October 1,
1987, between the Issuer and Chemical Bank, as trustee and all
amendments, modifications and supplements thereto.
"Interest Advance" has the meaning set forth in Section 1.05(a)
hereof.
"Interest Draft" has the meaning set forth in the Letter of
Credit.
"Interest Period" has the meaning set forth in Section 1.09(a)
hereof.
"Issuer" means the City of Burlington, Kansas.
"Lease" means the Equipment Lease Agreement dated as of
October 1, 1987, between the Issuer and the Company, and all
amendments, modifications and supplements thereto.
"Letter of Credit" means the irrevocable, transferable letter
of credit issued by the Bank in substantially the form of Exhibit A
hereto and any successor letter of credit as provided in such letter
of credit.
"LIBO Rate" for any Interest Period for any Advance means the
rate of interest per annum at which deposits in United States dollars
are offered by the principal office of Deutsche Bank AG in London,
England to prime banks in the London interbank market for a period
equal to the duration of the Eurodollar Interest Period relating to
such Advance at (or about) 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period.
"Mortgages" has the meaning set forth in Section 4.02(a)
hereof.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Obligation" of any person or entity means (i) indebtedness for
borrowed money or obligations evidenced by notes, bonds, debentures
or similar instruments or for the deferred purchase price of property
or services in respect of which such person is liable, contingently
or otherwise, as obligor, guarantor or otherwise, or in respect of
which such person otherwise assures a creditor against loss,
(ii) obligations under leases in respect of which obligations such
person is liable, contingently or otherwise, as obligor, guarantor or
otherwise, or in respect of which obligations such person otherwise
assures a creditor against loss, and (iii) liabilities in respect of
unfunded vested benefits under each Plan maintained for employees of
such person and covered by Title IV of ERISA.
"Official Statement" has the meaning set forth in Section
3.01(g).
"Plan" means an employee benefit plan (other than a
Multiemployer Plan) maintained for employees of the Company or any
Affiliate and covered by Title IV of ERISA.
"Preliminary Official Statement" has the meaning set forth in
Section 3.01(g).
"Purchase Advance" has the meaning set forth in Section 1.04(a)
hereof.
"Purchase Draft" has the meaning set forth in the Letter of
Credit.
"Redemption Advance" has the meaning set forth in Section
1.04(a) hereof.
"Redemption Draft" has the meaning set forth in the Letter of
Credit.
"Related Documents" has the meaning set forth in Section
1.17(i) hereof.
"Scheduled Termination Date" means August 18, 1996, except as
extended hereunder.
"Sublease" means the Equipment Sublease Agreement dated as of
October 1, 1987, between the Issuer and the Company and all
amendments, modifications and supplements thereto.
"Tender Advance" has the meaning set forth in Section 1.03(a)
hereof.
"Tender Draft" has the meaning set forth in the Letter of
Credit.
"Term Advance" has the meaning set forth in Section 1.04(a)
hereof.
"Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other
than a Reportable Event not subject to the provision for 30-day
notice to the PBGC under such regulations), or (ii) the withdrawal of
the Company or any of its Affiliates from a Plan during a plan year
in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to
terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate a Plan by the PBGC, or (v) any other event
or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan.
"Trustee" means Chemical Bank, as trustee under the Indenture.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Company
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Bank and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given.
SECTION 7.02. Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
and mailed, sent or delivered, if to the Company, at its address at 1201
Walnut, Kansas City, Missouri 64106 Attention: Treasurer, facsimile:
816-556-2992; and if to the Bank, at its address at 31 West 52nd Street,
New York, New York 10019 Attention: Trade Finance Department, facsimile:
212-474-8256, or if to the Trustee, mailed or delivered to it, addressed to
it at 450 W. 33rd Street, New York, New York 10001, Attention: Corporate
Trustee Administration Department, facsimile: 212-971-8567; or as to each
party, to such other party and/or at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and communications shall be effective when mailed or sent,
addressed as aforesaid, except that notices to the Bank pursuant to the
provisions of Article I shall not be effective until received by the Bank,
and any notice to the Trustee pursuant to Section 5.02(ii) shall not be
effective until received by the Trustee. Notices of any Event of Default
shall be sent by the Company to the Bank by facsimile.
SECTION 7.03. No Waiver; Remedies. No failure on the part of the
Bank to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 7.04. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted United States accounting principles consistently applied and in
effect on the date hereof.
SECTION 7.05. Indemnification. The Company hereby indemnifies and
holds the Bank harmless from and against any and all claims, damages,
losses, liabilities, costs or expenses which the Bank may incur or which
may be claimed against the Bank by any person or entity:
(a) by reason of any inaccuracy in any material respect, or
any untrue statement or alleged untrue statement of any material
fact, contained in the Preliminary Official Statement or the Official
Statement or any amendment or supplement thereto, or by reason of the
omission or alleged omission to state therein a material fact
necessary to make such statements, in the light of the circumstances
under which they were made, not misleading; provided, however, that,
in the case of any action or proceeding alleging an inaccuracy in a
material respect, or an untrue statement, with respect to information
supplied by and describing the Bank in the Preliminary Official
Statement or the Official Statement (the "Bank Information"), or an
omission or alleged omission to state therein a material fact
necessary to make the statements in the Bank Information, in the
light of the circumstances under which they were made, not
misleading, (i) indemnification by the Company pursuant to this
Section 7.05(a) shall be limited to the costs and expenses of the
Bank (including reasonable fees and expenses of the Bank's counsel)
of defending itself against such allegation, (ii) if in any such
action or proceeding it is finally determined that the Bank
Information contained an inaccuracy in any material respect or an
untrue statement of a material fact or omitted to state therein a
material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not
misleading, then the Company shall not be required to indemnify the
Bank pursuant to this Section 7.05(a) for any claims, damages,
losses, liabilities, costs or expenses (including reasonable fees and
expenses of counsel) to the extent caused by such inaccuracy, untrue
statement or omission, and (iii) if any such action or proceeding
shall be settled by the Bank without there being a final
determination to the effect described in the preceding clause (ii),
then the Company shall be required to indemnify the Bank pursuant to
this Section 7.05(a) only if such action or proceeding is settled
with the Company's consent; or
(b) by reason of or in connection with the execution, delivery
or performance of the Bonds, the Indenture, the Lease or the
Sublease, or any transaction contemplated by the Indenture, the Lease
or the Sublease; or
(c) by reason of or in connection with the execution and
delivery or transfer of, or payment or failure to make lawful payment
under, the Letter of Credit; provided, however, that the Company
shall not be required to indemnify the Bank pursuant to this section
7.05(c) for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (i) the
Bank's wilful misconduct or gross negligence in determining whether
documents presented under the Letter of Credit comply with the terms
of the Letter of Credit or (ii) the Bank's wilful failure to make
lawful payment under the Letter of Credit after the presentation to
it by the Trustee or a successor trustee under the Indenture of a
draft and certificate strictly complying with the terms and
conditions of the Letter of Credit.
Nothing in this Section 7.05 is intended to limit the Company's obligations
contained in Article I. Without prejudice to the survival of any other
obligation of the Company hereunder, the indemnities and obligations of the
Company contained in this Section 7.05 shall survive the payment in full of
amounts payable pursuant to Article I and the termination of the Letter of
Credit.
SECTION 7.06. Liability of the Bank. The Company assumes all risks
of the acts or omissions of the Trustee and any beneficiary or transferee
of the Letter of Credit with respect to its use of the Letter of Credit.
Neither the Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use which may be made of the Letter of Credit or
any acts or omissions of the Trustee and any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should
prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Bank against presentation of documents which do
not comply with the terms of the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to
make payment under the Letter of Credit, except that the Company shall have
a claim against the Bank, and the Bank shall be liable to the Company, to
the extent of any direct, as opposed to consequential, damages suffered by
the Company which the Company proves were caused by (i) the Bank's willful
misconduct or gross negligence in determining whether documents presented
under the Letter of Credit comply with the terms of the Letter of Credit or
(ii) the Bank's wilful failure to make lawful payment under the Letter of
Credit after the presentation to it by the Trustee or a successor trustee
under the Indenture of a draft and certificate strictly complying with the
terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank may accept documents that appear on
their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
SECTION 7.07. Costs, Expenses and Taxes. The Company agrees to pay
on demand all costs and expenses in connection with the preparation,
execution, delivery, filing, recording, administration and amendments
and/or modifications (made upon the request of the Company) of this
Agreement and any other documents which may be delivered in connection with
this Agreement, including, without limitation, the reasonable costs
incurred with each transfer of the Letter of Credit, the reasonable fees
and out-of-pocket expenses of counsel for the Bank, and local counsel who
may be retained by said counsel, with respect thereto and with respect to
advising the Bank as to its rights and responsibilities under this
Agreement and all costs and expenses (including reasonable counsel fees and
expenses) in connection with (i) the enforcement of this Agreement and such
other documents which may be delivered in connection with this Agreement or
(ii) any action or proceeding relating to a court order, injunction or
other process or decree restraining or seeking to restrain the Bank from
paying any amount under the Letter of Credit. In addition, the Company
shall pay any and all stamp and other taxes and fees payable or determined
to be payable in connection with the execution, delivery, filing and
recording of this Agreement and such other documents, and agrees to save
the Bank harmless from and against any and all liabilities with respect to
or resulting from any delay in paying or omission to pay such taxes and
fees except for any penalties incurred as a result of the Bank's failure to
notify the Company of such stamp or other taxes or fees payable by the
Company of which the Bank has knowledge.
SECTION 7.08. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Company and the Bank and thereafter
shall be binding upon and inure to the benefit of the Company and the Bank
and their respective successors and assigns, except that the Company shall
not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Bank. The Bank may, at its own
expense, assign (by way of participation or otherwise) to any financial
institution all or any part of, or any interest (undivided or divided) in,
the Bank's rights, benefits and obligations under this Agreement and the
Letter of Credit, and to the extent of any such assignment, any such
assignee shall have the same rights and benefits against the Company
hereunder and under the Letter of Credit as it would have had if such
assignee were the Bank issuing or paying under the Letter of Credit
hereunder.
SECTION 7.09. Right of Set-Off. (a) Upon the occurrence and during
the continuance of any Event of Default, the Bank is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by the Bank to or for the credit or the account of the Company
against any and all of the obligations of the Company now or hereafter
existing under this Agreement, whether or not the Bank shall have made any
demand hereunder and although such obligations may be contingent or
unmatured.
(b) The Bank agrees promptly to notify the Company after any such
set-off and application referred to in this Section 7.09(a) above, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Bank may have.
SECTION 7.10. Severability. Any provision of this Agreement which
is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of
such provision in any other jurisdiction.
SECTION 7.11. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 7.12. Headings. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
KANSAS CITY POWER & LIGHT COMPANY
By_______________________________
Senior Vice President
DEUTSCHE BANK AG, ACTING THROUGH ITS
NEW YORK AND CAYMAN ISLANDS BRANCHES
By_______________________________
Title:___________________________
By_______________________________
Title:___________________________
EXHIBIT A
TO LETTER OF CREDIT
AND REIMBURSEMENT
AGREEMENT
[SERIES 1987B]
August 19, 1993
Chemical Bank
450 W. 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Dear Ladies and Gentlemen:
We hereby establish at the request and for the account of Kansas City
Power & Light Company, a Missouri corporation (the "Company"), in your
favor, as Trustee under the Indenture of Trust dated as of October 1, 1987
(the "Indenture"), between the City of Burlington, Coffey County, Kansas
(the "Issuer") and you, pursuant to which $40,000,000 in aggregate
principal amount of the Issuer's Customized Purchase Pollution Control
Revenue Refunding Bonds, Series 1987B (Kansas City Power & Light Company
Project) (the "Bonds"), have been issued, our Irrevocable Letter of Credit
No. , in the amount of $43,747,945.21 (as more fully described
below), effective immediately and expiring at the close of business at our
31 West 52nd Street, New York, New York 10019 offices on August 18, 1996,
or such later date as we may agree upon in a writing delivered to you (the
"Scheduled Termination Date") unless sooner terminated in accordance with
the terms hereof.
We hereby irrevocably authorize you to draw on us, in an aggregate
amount not to exceed the amount of this Letter of Credit as set forth above
and in accordance with the terms and conditions and subject to the
reductions in amount as hereinafter set forth, as follows:
(1) in one or more drawings by one or more of your drafts,
each accompanied by your signed and appropriately completed
certificate in the form of Annex A attached hereto (any such draft
accompanied by such certificate being your "Interest Draft"), an
amount not exceeding $3,747,945.21;
(2) in one or more drawings by one or more of your drafts,
each accompanied by your signed and appropriately completed
certificate in substantially the form of Annex B attached hereto (any
such draft accompanied by such certificate being your "Tender
Draft"), an aggregate amount not exceeding $43,747,945.21;
(3) in one or more drawings by one or more of your drafts,
each accompanied by your signed and appropriately completed
certificate in substantially the form of Annex C attached hereto (any
such draft accompanied by such certificate being your "Redemption
Draft"), an aggregate amount not exceeding $40,000,000;
(4) in one or more drawings by one or more of your drafts,
each accompanied by your signed and appropriately completed
certificate in the form of Annex D attached hereto (such draft
accompanied by such certificate being your "Purchase Draft"), an
aggregate amount not exceeding $40,000,000;
(5) in a single drawing by your draft, accompanied by your
signed and appropriately completed certificate in substantially the
form of Annex E attached hereto (such draft accompanied by such
certificate being your "Final Draft"), an amount not exceeding
$43,747,945.21.
Upon our honoring any Interest Draft presented by you hereunder, the
amount of this Letter of Credit and the amounts available to be drawn by
you by any subsequent Interest Draft, Tender Draft, or Final Draft shall be
automatically decreased by an amount equal to the amount of such Interest
Draft. If you shall not have received from us within 15 calendar days from
the date of such drawing a notice from us to the effect that we have not
been reimbursed for such drawing in the form of Annex F attached hereto
appropriately completed, the amount of this Letter of Credit and the
amounts from time to time available to be drawn by you by any Interest
Draft, Tender Draft, or Final Draft shall be automatically and irrevocably
reinstated in the amount of such drawing, effective the 16th calendar day
from the date of such drawing; provided however, this reinstatement shall
not apply to amounts drawn by an Interest Draft in connection with Bonds
being redeemed with amounts drawn by a Redemption Draft.
Upon our honoring any Redemption Draft or Purchase Draft presented by
you hereunder, the amount of this Letter of Credit and the amounts avail-
able to be drawn by you by any subsequent Tender Draft, Redemption Draft,
Purchase Draft and Final Draft shall be automatically decreased by an
amount equal to the amount of such Redemption Draft or Purchase Draft.
Upon our honoring any Tender Draft presented by you hereunder, (i) the
amount of this Letter of Credit and the amounts available to be drawn by
any subsequent Tender Draft and Final Draft shall be automatically
decreased by an amount equal to the amount of such Tender Draft and
(ii) the amounts available to be drawn by any subsequent Redemption Draft
and Purchase Draft shall be automatically decreased by the amount set forth
in clause (i) of paragraph 3 of the Certificate accompanying such Tender
Draft.
The amount of this Letter of Credit and the amounts from time to time
available to be drawn by you by any Tender Draft or Final Draft shall be
increased when and to the extent, but only when and to the extent, that we
are reimbursed by you on behalf of the Company for amounts drawn hereunder
by any Tender Draft or Purchase Draft. The amounts from time to time
available to be drawn by you by any Redemption Draft or Purchase Draft
shall be increased by the amount set forth in clause (i) of paragraph 3 of
the Certificate accompanying any Tender Draft or paragraph 3 of a
Certificate accompanying any Purchase Draft when and to the extent, but
only when and to the extent, that we are reimbursed by you on behalf of the
Company for amounts drawn hereunder by any such Tender Draft or Purchase
Draft. Any amount received from you on behalf of the Company in
reimbursement of amounts drawn hereunder shall, if accompanied by an
appropriately completed and signed certificate in the form of Annex H
attached hereto from you, be applied to the extent of the amounts indicated
therein in reimbursement of unreimbursed drawings under your Tender Drafts
or Purchase Drafts. Amounts otherwise received from you on behalf of the
Company shall be applied in reimbursement of unreimbursed drawings made by
your Interest Draft.
The amount of this Letter of Credit and the amounts available to be
drawn by you by any Interest Draft, Tender Draft, Redemption Draft,
Purchase Draft, and Final Draft shall be decreased upon our receipt of
notice from you, in the form of your written and appropriately completed
certificate signed by you in the form of Annex G attached hereto, of a
redemption or defeasance of less than all of the Bonds outstanding, to the
respective amounts stated in such certificate.
Each draft and certificate shall refer thereon to the number of this
Letter of Credit and shall be dated the date of its presentation, and shall
be drawn and hand delivered or delivered by mail to our office located at
31 West 52nd Street, New York, New York 10019, Attention: Trade Finance
Department (or any other office in the City and State of New York which may
be designated by us by written notice delivered to you) or by telecopy at
212-474-7989 (or such other number which may be designated by us by written
notice to you). If we receive any of your drafts and certificates at such
office, all in strict conformity with the terms and conditions of this
Letter of Credit, on or prior to the termination hereof and in any event on
or before 12:00 noon (New York City time) on a Banking Day, we will honor
the same on or before 4:00 p.m. (New York City time) on the same day in
accordance with your payment instructions. If we receive any of your
drafts and certificates at such office, all in strict conformity with the
terms and conditions of this Letter of Credit, after the times specified in
the preceding sentence on a Banking Day prior to the termination hereof, we
will honor the same on the next succeeding Banking Day in accordance with
your payment instructions. If requested by you, payment under this Letter
of Credit may be made by wire transfer of Federal Reserve Bank of New York
funds to your account in a bank on the Federal Reserve wire system or by
deposit of same day funds into a designated account that you maintain with
us. The term "Banking Day" means any day of the year other than a
Saturday, Sunday or a day on which banks are required or authorized to
close in New York City. All times of day referred to herein shall be New
York City time. All payments paid under this Letter of Credit shall be
paid with our own funds.
Upon the earliest of (i) our honoring your Final Draft presented
hereunder, (ii) the surrender to us by you of this Letter of Credit for
cancellation, (iii) our honoring your Redemption Draft for all of the
Bonds, (iv) the close of business on the date on which we receive written
notice from you that the Bonds have been converted to the Fixed Interest
Rate within the meaning of the Indenture, (v) the date on which we receive
written notice from you that there is no longer any Bond outstanding,
(vi) the date on which we receive written notice from you of the substi-
tution of an alternate letter of credit in accordance with the Indenture,
and (vii) the Scheduled Termination Date, this Letter of Credit shall
automatically terminate.
This Letter of Credit is transferable in its entirety to any
transferee who you certify has succeeded you as Trustee under the Indenture
and may be successively transferred. Transfer of the available balance
under this Letter of Credit to such transferee shall be effected by the
presentation to us of this Letter of Credit accompanied by a certificate in
the form of Annex I attached hereto. Upon such presentation we shall
forthwith transfer the same to your transferee or, if so requested by your
transferee with provisions therein consistent with this Letter of Credit.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds), except only the certificates
and the drafts referred to herein; and any such reference shall not be
deemed to incorporate herein by reference any document, instrument or
agreement except for such certificates and such drafts.
This Letter of Credit shall be governed by the Uniform Customs and
Practice for Documentary Credit (1983 Revision), International Chamber of
Commerce No. 400, and to the extent matters are not covered thereby, the
laws of the State of New York, including the Uniform Commercial Code as in
effect in the State of New York. Communications with respect to this
Letter of Credit, including a certificate in the form of Annex I attached
hereto, other than presentation of drafts and certificates shall be in
writing and shall be addressed to us at 31 West 52nd Street, New York, New
York 10019, Attention: Trade Finance Department, specifically referring
to the number of this Letter of Credit.
Very truly yours,
DEUTSCHE BANK AG, NEW YORK BRANCH
By______________________________
Title:__________________________
By______________________________
Title:__________________________
Annex A
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE
PAYMENT OF INTEREST ON THE CITY OF BURLINGTON,
COFFEY COUNTY, KANSAS CUSTOMIZED PURCHASE POLLUTION
CONTROL REVENUE REFUNDING BONDS, SERIES 1987B
(KANSAS CITY POWER & LIGHT COMPANY PROJECT) (THE
"BONDS")
Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to (a) payment(s) of interest on the Bonds, including,
without limitation, accrued interest due upon the redemption of
Bonds, to the extent moneys are not available in the Bond Fund from
the sources set forth in clauses (i) through (iii), inclusive of
Section 404 of the Indenture, which payment(s) is [are]* due on
____________.** [CP Dates (as defined in the Indenture) established
for the current calendar month, and this drawing is also with respect
to other amounts to be drawn under Section 405(f) of the Indenture.]*
Payment of such amount is to be made to us on the same Banking Day if
the Certificate and Interest Draft are presented to you no later than
12:00 noon (New York City time). If presentation is after 12:00 noon
(New York City time), payment of such amount is to be made on the
next Banking Day. None of the Bonds, in respect of which such
drawing is being made, were registered in the name of the Company or
were held on behalf of the Company under the Custody Agreement on the
Record Date within the meaning of the Indenture.
(3) The amount of the Interest Draft accompanying this
Certificate is equal to $___________. It was computed in compliance
with the terms and conditions of the Bonds and the Indenture and does
not include any amount of interest on the Bonds which is included in
any Final Draft presented on the date of this Certificate and does
not exceed the amount available to be drawn by the Trustee under the
Letter of Credit.
________________
* To be used while the Bonds bear interest at the CP Rate.
** Insert date; to be used if drawing is not under Section 405(f) of the
Indenture.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the ____ day of ____________, 19___.
CHEMICAL BANK,
as Trustee
By____________________________________
[Name and Title]
Annex B
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE
PAYMENT OF PRINCIPAL OF AND INTEREST ON THE CITY OF
BURLINGTON, COFFEY COUNTY, KANSAS CUSTOMIZED
PURCHASE POLLUTION CONTROL REVENUE REFUNDING BONDS,
SERIES 1987B (KANSAS CITY POWER & LIGHT COMPANY
PROJECT) (THE "BONDS") IN SUPPORT OF A TENDER
PURSUANT TO SECTIONS 301, 302, 303, 304, AND 305 OF
THE INDENTURE.
Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment of (i) the purchase price equal to the
unpaid principal amount of the Bonds to be purchased as a result of a
tender on or prior to the effective date of the Fixed Interest Rate
(as defined in the Indenture) pursuant to the terms of Sections 301,
302, 303, 304 and 305 of the Indenture (other than Bonds registered
in the name of the Company which are presently held by the Company or
Bonds held by the Custodian on behalf of the Company) and (ii) the
purchase price equal to the amount of interest accrued and unpaid to
the purchase date from the immediately preceding Interest Accrual
Date (as defined in the Indenture), to the extent moneys are not
available from the sources set forth in clauses (i) through (iii),
inclusive, of Section 306 of the Indenture, which payment is due on
such Banking Day if the Certificate and Tender Draft are presented
not later than 12:00 noon (New York City time), or which payment is
due on the next succeeding Banking Day if the Certificate and Tender
Draft are presented after the time deadline referred to above.
(3) The amount of the Tender Draft accompanying this
Certificate is equal to the sum of (i) $__________ being drawn in
respect of the payment of the portion of the tender price of the
Bonds equal to the unpaid principal of Bonds (other than Bonds
registered in the name of the Company which are presently held by the
Company or Bonds held by the Custodian on behalf of the Company) to
be purchased as a result of a tender pursuant to Sections 301, 302,
303, 304, and 305 of the Indenture and (ii) $__________ being drawn
in respect of the payment of the portion of the tender price of the
Bonds equal to the accrued and unpaid interest on such Bonds and does
not include any amount of interest which is included in any Tender
Draft (unless such amount has been reinstated by the Bank) or Final
Draft presented on or prior to the date of this Certificate.
(4) The amount of the Tender Draft accompanying this
Certificate was computed in compliance with the terms and conditions
of the Bonds and the Indenture and does not exceed the amount
available to be drawn by the Trustee under the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of ____________, 19___.
CHEMICAL BANK,
as Trustee
By______________________________
[Name and Title]
Annex C
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE
PAYMENT OF PRINCIPAL OF THE CITY OF BURLINGTON,
COFFEY COUNTY, KANSAS CUSTOMIZED PURCHASE POLLUTION
CONTROL REVENUE REFUNDING BONDS, SERIES 1987B
(KANSAS CITY POWER & LIGHT COMPANY PROJECT) (THE
"BONDS") UPON REDEMPTION
Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. 806678 (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment, upon redemption [of all] [less than
all]* of the Bonds on or prior to the effective date of the Fixed
Interest Rate (as defined in the Indenture), of the unpaid principal
amount of the Bonds to be redeemed pursuant to the terms of Sections
310, 311 or 312 of the Indenture (other than Bonds registered in the
name of the Company which are presently held by the Company or Bonds
held by the Custodian on behalf of the Company), to the extent moneys
are not available in the Bond Fund from the sources set forth in
clauses (i) and (ii), of Section 404 of the Indenture, which payment
is due on such Banking Day if the Certificate and Redemption Draft
are presented not later than 12:00 noon (New York City time), or
which payment is due on the next succeeding Banking Day if the
Certificate and Redemption Draft are presented after the time
deadline referred to above.
(3) The amount of the Redemption Draft accompanying this
Certificate is equal to the sum of $_________ being drawn in respect
of the payment of unpaid principal of Bonds (other than Bonds
registered in the name of the Company which are presently held by the
Company or Bonds held by the Custodian on behalf of the Company) to
be redeemed.
(4) The amount of the Redemption Draft accompanying this
Certificate was computed in accordance with the terms and conditions
of the Bonds and the Indenture and does not exceed the amount
available to be drawn under the Letter of Credit.
_______________
* Insert appropriate description.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of ______________, 19___.
CHEMICAL BANK,
as Trustee
By______________________________
[Name and Title]
Annex D
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE
PAYMENT OF PRINCIPAL OF THE CITY OF BURLINGTON,
COFFEY COUNTY, KANSAS CUSTOMIZED PURCHASE POLLUTION
CONTROL REVENUE REFUNDING BONDS, SERIES 1987B
(KANSAS CITY POWER & LIGHT COMPANY PROJECT) (THE
"BONDS") IN SUPPORT OF A PURCHASE
Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment, on or prior to the effective date of the
Fixed Interest Rate (as defined in the Indenture), of the unpaid
principal amount of the Bonds to be purchased by the Company in lieu
of redemption pursuant to the terms of Section 314 of the Indenture
(other than Bonds registered in the name of the Company which are
presently held by the Company or Bonds held by the Custodian on
behalf of the Company), to the extent moneys are not available in the
Bond Fund from the sources set forth in clauses (i) through (iii) of
Section 306 of the Indenture, which payment is due on such Banking
Day if the Certificate and Purchase Draft are presented not later
than 12:00 noon (New York City time), or which payment is due on the
next succeeding Banking Day if the Certificate and Purchase Draft are
presented after the time deadline referred to above.
(3) The amount of the Purchase Draft accompanying this
Certificate is equal to the sum of $__________ being drawn in respect
of the payment of unpaid principal of Bonds (other than Bonds
registered in the name of the Company which are presently held by the
Company or Bonds held by the Custodian on behalf of the Company) to
be purchased by the Company in lieu of redemption.
(4) The amount of the Purchase Draft accompanying this
Certificate was computed in compliance with the terms and conditions
of the Bonds and the Indenture and does not exceed the amount
available to be drawn by the Trustee under the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of ____________, 19___.
CHEMICAL BANK,
as Trustee
By______________________________
[Name and Title]
Annex E
CERTIFICATE FOR DRAWING IN CONNECTION WITH THE
PAYMENT OF PRINCIPAL OF AND INTEREST ON THE CITY OF
BURLINGTON, COFFEY COUNTY, KANSAS CUSTOMIZED
PURCHASE POLLUTION CONTROL REVENUE REFUNDING BONDS,
SERIES 1987B (KANSAS CITY POWER AND LIGHT COMPANY
PROJECT) (THE "BONDS"), UPON STATED OR ACCELERATED
MATURITY
Irrevocable Letter of Credit No.
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit", the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit
with respect to the payment, upon stated or accelerated maturity of
the unpaid principal amount of, and, to the extent such payment is
not due on an Interest Payment Date within the meaning of the
Indenture, of accrued and unpaid interest on, all of the Bonds (other
than Bonds registered in the name of the Company which are presently
held by the Company or Bonds held by the Custodian on behalf of the
Company), to the extent moneys are not available in the Bond Fund
from the sources set forth in clauses (i) through (iii) of Section
404 of the Indenture, which payment is due on such Banking Day if the
Certificate and Final Draft are presented not later than 12:00 noon
(New York City time), or which payment is due on the next succeeding
Banking Day if the Certificate and Final Draft are presented after
the time deadline referred to above.
(3) The amount of the Final Draft accompanying this
Certificate is equal to the sum of (i) $________ being drawn in
respect of the payment of unpaid principal of all of the Bonds (other
than Bonds registered in the name of the Company which are presently
held by the Company or Bonds held by the Custodian on behalf of the
Company) and (ii) $_______ being drawn in respect of the payment of
accrued and unpaid interest on such Bonds (other than Bonds
registered in the name of the Company which are presently held by the
Company or Bonds held by the Custodian on behalf of the Company) and
does not include any amount of interest which is included in any
Interest Draft or Tender Draft (unless such amount has been
reinstated by the Bank), presented on or prior to the date of this
Certificate.
(4) The amount of the Final Draft accompanying this
Certificate was computed in compliance with the terms and conditions
of the Bonds and the Indenture and does not exceed the amount
available to be drawn by the Trustee under the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of ________________, 19___.
CHEMICAL BANK,
as Trustee
By_______________________________
[Name and Title]
Annex F
NOTICE THAT TRUSTEE'S RIGHT TO DRAW
UNDER THE LETTER OF CREDIT BY AN
INTEREST DRAFT HAS NOT BEEN REINSTATED
Chemical Bank
450 W. 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Irrevocable Letter of Credit No.
Dear Sirs:
You are hereby advised that Kansas City Power & Light Company has not
reimbursed us in an amount equal to the amount drawn by you under the
Interest Draft dated __________, 19___. Therefore, the amount of our
Irrevocable Letter of Credit No. and the amounts available to be
drawn by you by an Interest Draft, Tender Draft, or Final Draft (which
available amounts have been decreased by an amount equal to the amount of
such Interest Draft) shall not be reinstated in the amount of such Interest
Draft.
Deutsche Bank AG, New York Branch
__________________________________
__________________________________
Annex G
CERTIFICATE FOR THE REDUCTION OF AMOUNTS AVAILABLE
UNDER LETTER OF CREDIT NO. DATED AUGUST
19, 1993
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee hereby notifies you that on or prior to the
date hereof $_________ principal amount of the Bonds has been
redeemed or defeased and paid pursuant to the Indenture.
(3) Following the redemption or the defeasance and payment
referred to in paragraph (2) above, the aggregate principal amount of
all of the Bonds outstanding is $__________.
(4) The maximum amount of interest (computed at 12% per annum
for a period of 285 days computed on basis of 365 days per year)
accruing on the Bonds referred to in paragraph (3) above is
$__________.
(5) The amount available to be drawn by the Trustee under the
Letter of Credit by any Interest Draft is reduced to $___________
(such amount being equal to the amount specified in paragraph (4)
above) upon receipt by the Bank of this Certificate.
(6) The amount available to be drawn by the Trustee under the
Letter of Credit by any Tender Draft is reduced to $________ (such
amount being equal to the sum of the amounts specified in paragraphs
(3) and (4) above) upon receipt by the Bank of this Certificate.
(7) The amount available to be drawn by the Trustee under the
Letter of Credit by any Redemption Draft is reduced to $_________
(such amount being equal to the amount specified in paragraph (3)
above).
(8) The amount available to be drawn by the Trustee under the
Letter of Credit by any Purchase Draft is reduced to $_______ (such
amount being equal to the amount specified in paragraph (3) above).
(9) The amount available to be drawn by the Trustee under the
Letter of Credit by its Final Draft is reduced to $___________ (such
amount being equal to the sum of the amounts specified in paragraphs
(3) and (4) above) upon receipt by the Bank of this Certificate.
(10) The amount of the Letter of Credit is reduced to
$__________ (such amount being equal to the sum of the amounts
specified in paragraph (3) and (5) above) upon receipt by the Bank of
this Certificate.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the _____ day of ____________, 19___.
CHEMICAL BANK,
as Trustee
By________________________________
[Name and Title]
Annex H
CERTIFICATE FOR THE REINSTATEMENT OF AMOUNTS
AVAILABLE UNDER IRREVOCABLE LETTER OF CREDIT NO.
DATED AUGUST 19, 1993
The undersigned, a duly authorized officer of the undersigned Trustee
(the "Trustee"), hereby certifies to Deutsche Bank AG, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit," the terms defined therein and not otherwise defined
herein being used herein as therein defined) issued by the Bank in favor of
the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The amount of $_________ paid to you today by the Trustee
on behalf of the Company is a payment made to reimburse you pursuant
to Section 1.10[(c)]* [(d)]** of the Letter of Credit and
Reimbursement Agreement, dated as of August 19, 1993 (the
"Reimbursement Agreement"), between the Company and the Bank, for
amounts drawn under the Letter of Credit by [Tender Drafts]*
[Purchase Drafts]**.
(3) Of the amount referred to in paragraph (2), $____________
represents the principal amount of Bonds.
[(4) Of the amount referred to in paragraph (2), $__________
represents accrued interest on Bonds calculated in accordance with
clause (ii) of Section 1.10(c) of the Reimbursement Agreement.]*
_______________________
* To be used in connection with reimbursement for amounts drawn
under Tender Drafts.
** To be used in connection with reimbursement for amounts drawn
under Purchase Drafts.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate this _____ day of ____________, 19___.
CHEMICAL BANK,
as Trustee
By______________________________
[Name and Title]
Annex I
INSTRUCTION TO TRANSFER
________________,19___
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: CLAD
Re: Irrevocable Letter of Credit No.
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
________________________________________
[Name of Transferee]
________________________________________
[Address]
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeded
the undersigned as Trustee under the Indenture (as defined in the Letter of
Credit).
By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however,
that no rights shall be deemed to have been transferred to the transferee
until such transfer complies with the requirements of the Letter of Credit
pertaining to transfers.
The Letter of Credit is returned herewith and in accordance therewith
we ask that this transfer be effective and that you transfer the same to
our transferee or that, if so requested by the transferee, you issue a new
irrevocable letter of credit in favor of the transferee with provisions
consistent with the Letter of Credit.
Very truly yours,
CHEMICAL BANK,
as predecessor Trustee
By_______________________________
[Name and title]
EXHIBIT B
TO LETTER OF CREDIT
AND REIMBURSEMENT
AGREEMENT
OPINION OF COUNSEL FOR THE COMPANY
August 19, 1993
Deutsche Bank AG, acting through
its New York and Cayman Islands Branches
31 West 52nd Street
New York, New York 10019
Kansas City Power & Light Company
Gentlemen:
I am Chief Legal Officer of Kansas City Power & Light Company, a
Missouri corporation (the "Company"), and am familiar with the matters
relating to the preparation, execution and delivery of a Letter of Credit
and Reimbursement Agreement (the "Reimbursement Agreement") dated as of
August 19, 1993, between the Company and Deutsche Bank AG, acting through
its New York and Cayman Islands Branches (the "Bank"). Among other things,
I have examined:
(1) a fully executed counterpart of the Reimbursement
Agreement;
(2) the fully executed Letter of Credit;
(3) the fully executed Indenture;
(4) the fully executed Lease;
(5) the fully executed Sublease;
(6) the fully executed Custody Agreement and Amendment No. 1
thereto;
(7) the Articles of Incorporation of the Company and all
amendments thereto (the "Charter");
(8) the by-laws of the Company as now in effect (the
"By-laws"); and
(9) the Company's corporate proceedings and the proceedings
before the public utility regulatory commissions of the States of
Missouri and Kansas relating to the Reimbursement Agreement and
related matters.
I have also examined the originals, or copies certified to my satis-
faction, of (i) such other corporate records of the Company, certificates
of public officials and of officers of the Company, (ii) the agreements,
instruments and documents which affect or purport to affect the obligations
of the Company under the Reimbursement Agreement, and (iii) such other
agreements, instruments and documents as we have deemed necessary as a
basis for the opinions hereinafter expressed. I have assumed the due
execution and delivery, pursuant to due authorization, of the Reimbursement
Agreement by the Bank. All capitalized terms used herein and defined in
the Reimbursement Agreement are used herein as therein defined.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the opinion that:
(1) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Missouri
and is duly qualified to do business in, and is in good standing
under the laws of, the State of Kansas.
(2) The execution, delivery and performance by the Company of
the Reimbursement Agreement and each Related Document to which it is
a party are and were at the time of execution within the Company's
corporate power, have been duly authorized by all necessary corporate
action, do not and did not at the time of execution contravene
(i) Charter or By-laws, or (ii) any law, rule or regulation
applicable to the Company, or (iii) any contractual or legal
restriction (including, but not limited to, the Indenture) binding on
or affecting the Company, and do not result in or require the
creation of any lien, security interest or other charge or
encumbrance (other than pursuant to the Reimbursement Agreement and
the Related Documents) upon or with respect to any of its properties.
The Reimbursement Agreement and each Related Document to which the
Company is a party have been duly executed and delivered on behalf of
the Company.
(3) The public utility regulatory commissions of the States of
Missouri and Kansas have duly issued current orders authorizing the
Company to enter into the Reimbursement Agreement, and the
commissions have duly issued previous orders authorizing the Lease,
the Sublease and any other documents that such commissions have
jurisdiction over and to which the Company is a party and the Related
Documents to which the Company is a party, and such orders remain in
full force and effect in the form issued. Except for the approvals
of the Board of Commissioners of Coffey County, Kansas, and the City
Council of the City of Burlington, Kansas, approving issuance of the
Bonds, which approvals have been duly obtained, and the notice of
timely filing with the Board of Tax Appeals of the State of Kansas
which has been given, no other authorization, approval or other
action by, and no notice to or filing or registration with, any
governmental authority or regulatory body (other than for
informational purposes) is required for the due execution, delivery
and performance by the Company of any Related Document to which it is
a party.
(4) Based on Missouri law the Reimbursement Agreement and each
Related Document to which the Company is a party are the legal, valid
and binding obligations of the Company enforceable against the
Company in accordance with their respective terms.
(5) Except as disclosed in the Company's Form 10-K for the
year 1992, Forms 10-Q for the quarters March 31, 1993 and June 30,
1993, and Form 8-K dated August 16, 1993, there is no pending or, to
the best of my knowledge, threatened action or proceeding before any
court, governmental agency or arbitrator against, directly involving
or affecting the Company or any of its subsidiaries, which, in any
case, may materially and adversely affect the financial condition or
operations of the Company.
The opinions set forth above are subject to the following qualifica-
tions:
(a) The enforceability of the Company's obligations under the
Reimbursement Agreement and each Related Document to which it is a
party is subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally.
(b) The enforceability of the Company's obligations under the
Reimbursement Agreement and each Related Document to which it is a
party, may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law).
I am not licensed to practice law in the State of New York or the
State of Kansas. With respect to the conclusions set forth herein, I
express no opinions as to any laws other than the laws of the State of
Missouri and the Federal laws of the United States. I know of no reason
why the choice of law set forth in the Reimbursement Agreement and the
Related Documents would not be upheld in the courts of Missouri.
Very truly yours,
EXHIBIT C
TO LETTER OF CREDIT
AND REIMBURSEMENT
AGREEMENT
OPINION OF BOND COUNSEL
[Letterhead of Chapman and Cutler]
August 19, 1993
Kansas City Power & Light Company
1201 Walnut
Kansas City, Missouri 64106
Chemical Bank
450 West 33rd Street
New York, New York 10001
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Re: $40,000,000 City of Burlington, Kansas Customized Purchase Pollution
Control Revenue Refunding Bonds, Series 1987B (Kansas City Power &
Light Company Project)
Ladies and Gentlemen:
The above-referenced bonds (the "Bonds") were issued under and are
secured by an Indenture of Trust dated as of October 1, 1987 (the
"Indenture"), between the City of Burlington, Kansas (the "Issuer") and
Chemical Bank, as trustee (the "Trustee"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Indenture.
Kansas City Power & Light Company (the "Company") has requested we
provide the opinion of Bond Counsel required by Section 4.4 of the Series
1987B Equipment Sublease Agreement dated as of October 1, 1987 (the
"Sublease") between the Issuer and the Company and Section 405(c) of the
Indenture with respect to the issuance of Letter of Credit No. _______ of
even date herewith (the "Letter of Credit") issued by Deutsche Bank AG, New
York Branch (the "Bank").
On the basis of our review of the Letter of Credit, the Indenture,
the Sublease, photocopies of various counsel opinions dated October 29,
1987 (which have been identified as authentic copies of the original
opinions and of which we have assumed the authenticity), and such other
documents as we have considered necessary, we are of the opinion that the
delivery of the Letter of Credit is authorized under the Sublease and
complies with its terms.
We express no opinion as to whether the Letter of Credit is a legal,
valid, binding and enforceable obligation of the Bank in accordance with
its terms.
Respectfully submitted,
AGBacon
EXHIBIT D
TO LETTER OF CREDIT
AND REIMBURSEMENT
AGREEMENT
ENCUMBRANCES
(i) the Lien of the Mortgages;
(ii) liens for taxes or assessments by governmental bodies not yet
due or the payment of which is being contested in good faith by the
Company, provided that the Company shall have set aside on its books
reserves deemed by it to be adequate with respect to any such tax or
assessment so being contested;
(iii) any right of any municipal or other governmental body or
agency, by virtue of any franchise, grant, license, contract or statute, to
occupy, purchase or designate a purchaser of, or to order the sale of, any
mortgaged property upon payment of reasonable compensation therefor, or to
terminate any franchise, grant, license, contract or other right, or to
regulate the property and business of the Company;
(iv) liens and charges incidental to construction or current
operations of the Company which are not delinquent or, whether or not
delinquent, are being contested in good faith by the Company;
(v) easements, reservations or right of way, and zoning ordinances,
regulations and restrictions, if they do not, individually or in the
aggregate, impair the utility of the affected property in the operation of
the business of the Company;
(vi) irregularities in or defects of title with respect to any
rights of way acquired by the Company for lines, structures and
appurtenances thereto, if the Company has obtained from the apparent owner
of the real estate traversed by any such right of way a sufficient right,
by the terms of the instrument granting such right of way, to the use
thereof for the purpose of such lines, structures and appurtenances, or the
Company has eminent domain power to remove or cure such irregularities or
deficiencies;
(vii) liens securing obligation neither (A) assumed by the Company
nor (B) on account of which it customarily pays interest, directly or
indirectly, existing upon real estate, or rights in or relating to real
estate acquired by the Company for right of way for lines, structures and
appurtenances thereto;
(viii) party-wall agreements and agreements for the obligations
relating to the joint or common use of property owned solely by the Company
or owned by the Company in common or jointly with one or more parties;
(ix) liens securing indebtedness incurred by a Person, other than
the Company, which indebtedness has been neither assumed nor guaranteed by
the Company nor on which it customarily pays interest, existing on property
which the Company owns jointly or in common with such Person or such Person
and others, if there is an effective bar against partition of such property
which would preclude the sale of such property by such other Person or the
holder of such lien without the consent of the Company;
(x) any attachment, judgment and other similar lien arising in
connection with court proceedings in an amount not in excess of the greater
of $10,000,000 or 5% of the principal amount of outstanding bonds or other
indebtedness at the time such attachment, judgment or lien arises, or the
execution of which has been stayed or which has been appealed and secured,
if necessary, by an appeal bond;
(xi) the burdens of any law or governmental rule, regulation, order
or permit requiring the Company to maintain certain facilities or to
perform certain acts as a condition of its occupancy or use of, or
interference with, any public or private lands or highways or any river,
stream or other waters;
(xii) any duties or obligations of the Company to any federal state
or local or other governmental authority with respect to any franchise,
grant, license or permit which affects any mortgaged property;
(xiii) liens in favor of a governmental or governmental entity
securing (A) payments pursuant to a statute (other than taxes), or (B)
indebtedness incurred to finance all or part of the purchase price or cost
of construction of the property subject to such lien; and
(xiv) possible adverse rights or interests and inconsequential
defects or irregularities in title which, in an opinion of counsel may
properly be disregarded.