Exhibit 1
_____ Preferred Securities
KCPL FINANCING _
(a Delaware Trust)
____% Trust Originated Preferred Securities(sm)
("TOPrS(sm)")
(Liquidation Amount of $25 Per Preferred Security)
PURCHASE AGREEMENT
_______, 199_
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
KCPL Financing _ (the "Trust"), a statutory
business trust organized under the Business Trust Act (the
"Delaware Act") of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. Section 3801 et seq.),
and Kansas City Power & Light Company, a Missouri
corporation (the "Company" and, together with the Trust, the
"Offerors") confirm their agreement (the "Agreement") with
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other
Underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section
10 hereof), for whom Merrill Lynch is acting as
representative (in such capacity, Merrill Lynch shall
hereinafter be referred to as the "Representative"), with
respect to the sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the
respective numbers of _____ % Trust Originated Preferred
Securities (liquidation amount of $25 per preferred
security) of the Trust ("Preferred Securities") set forth in
said Schedule A. The Preferred Securities will be
guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities
Guarantee Agreement"), dated as of _________ , 199_, between
the Company and The First National Bank of Chicago, as
trustee (the "Guarantee Trustee"), and entitled to the
benefits of certain backup undertakings described in the
Prospectus with respect to the Company's agreement pursuant
to the Supplemental Indenture (as defined herein) to pay all
expenses relating to administration of the Trust (the
"Undertakings"). The Preferred Securities and the related
Preferred Securities Guarantee are referred to herein as the
"Securities".
The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333- ___________ ) and a related
prospectus and preliminary prospectus supplement for the
registration under the Securities Act of 1933 (the "1933
Act") of up to a combination of $300,000,000 of (i)
preferred securities, including the Preferred Securities,
(ii) guarantees of the preferred securities, including the
Preferred Securities Guarantee, and (iii) unsecured
subordinated debentures, including the Subordinated
Debentures (as defined below), to be issued and sold by the
Company to the trusts, including the Trust, which issue the
preferred securities, have filed such amendments thereto, if
any, and such amended prospectuses and amended preliminary
prospectus supplements as may have been required to the date
hereof, and will file such additional amendments thereto and
such amended prospectuses and amended prospectus supplements
as may hereafter be required. Such registration statement
(as amended, if applicable) and the prospectus constituting
a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act
and the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")),
as from time to time amended or supplemented pursuant to the
1933 Act, the Securities Exchange Act of 1934, as amended
(the "1934 Act"), or otherwise, including the prospectus
supplement (the "Prospectus Supplement") required to be
filed by the Offerors pursuant to Rule 424(b) of the 1933
Act Regulations with respect to the Preferred Securities
(but excluding any prospectus supplement filed by the
Company and any trust other than the Trust) are hereinafter
referred to as the "Registration Statement" and the
"Prospectus", respectively, except that, if any revised
prospectus or prospectus supplement shall be provided to the
Underwriters by the Offerors for use in connection with the
offering of the Preferred Securities which differs from the
Prospectus (whether or not such revised prospectus is
required to be filed by the Offerors pursuant to Rule 424(b)
of the 1933 Act Regulations), the term "Prospectus" shall
refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. All
references in this Agreement to financial statements and
schedules and other information that is "contained,"
"included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements
and schedules and other information that are or are deemed
to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any document under the
1934 Act that is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus,
as the case may be.
The Offerors understand that the Underwriters
propose to make a public offering of the Securities as soon
as the Representative deems advisable. The entire proceeds
from the sale of the Securities will be combined with the
entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities") and will be
used by the Trust to purchase the $ ___________ of
____% junior subordinated deferrable interest debentures
(the "Subordinated Debentures") issued by the Company. The
Preferred Securities and the Common Securities will be
issued pursuant to the amended and restated declaration of
trust of the Trust, dated as of _______________, 199_ (the
"Declaration"), among the Company, as Sponsor, John J.
DeStefano and Andrea F. Bielsker (the "Regular Trustees"),
The First National Bank of Chicago, a national banking
association, as property trustee (the "Property Trustee"),
and First Chicago Delaware Inc., a Delaware corporation (the
"Delaware Trustee and, together with the Regular Trustees
and the Property Trustee, the "Trustees"), and the holders
from time to time of undivided beneficial interests in the
assets of the Trust. The Subordinated Debentures will be
issued pursuant to an indenture, dated as of _________, 199_
(the "Base Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Debt Trustee"),
and a supplemental indenture to the Base Indenture, dated as
of __________ , 199_ (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company
and the Debt Trustee.
Section 1. Representations and Warranties
(a) The Offerors jointly and severally represent
and warrant to each Underwriter as of the date hereof as
follows:
(i) The Registration Statement has become
effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration
Statement is currently in effect and no proceedings for
that purpose are pending or threatened by the
Commission. At the time the Registration Statement
became effective and on the date hereof, the
Registration Statement complied and complies in all
material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the Trust Indenture
Act of 1939, as amended (the "1939 Act") and the rules
and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not and does not
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading. The Prospectus, (unless the term
"Prospectus" refers to a prospectus that has been
provided to the Underwriters by the Trust for use in
connection with the offering of the Securities and that
differs from the Prospectus, including the Prospectus
Supplement, in which case, at the time it is first
provided to the Underwriters for such use) at the
Closing Time referred to in Section 2 hereof will not
include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided,
however, that the representations and warranties in
this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with
information furnished to the Offerors in writing by any
Underwriter through Merrill Lynch expressly for use in
the Registration Statement or Prospectus.
(ii) The documents incorporated or deemed to
be incorporated by reference in the Registration
Statement or Prospectus, at the time they were or
hereafter are filed with the Commission, complied and
will comply in all material respects with the
requirements of the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act
Regulations"), as applicable, and, at the time the
Registration Statement and any amendments thereto
became effective and at the Closing Time, did not and
will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; provided, however, that the
representations and warranties in this subsection shall
not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to
the Offerors in writing by any Underwriter through
Merrill Lynch expressly for use in the Registration
Statement or Prospectus.
(iii) The accountants who certified the
financial statements and supporting schedules included
in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The financial statements included in
the Registration Statement and the Prospectus present
fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods
specified; except as otherwise stated in the
Registration Statement, said financial statements have
been prepared in conformity with generally accepted
accounting principles applied on a consistent basis;
the Company's ratios of earnings to fixed charges and
ratios of earnings to fixed charges and preferred
dividend requirements (actual and, if any, pro forma)
included in the Prospectus under the caption "Ratios of
Earnings to Fixed Charges and Earnings to Fixed Charges
and Preferred Dividend Requirements" and in Exhibit 12
to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the
Commission and the supporting schedules included in the
Registration Statement present fairly the information
required to be stated therein; and the selected
financial data included or incorporated by reference in
the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent
with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement. [The Prospectus contains all
pro forma financial statements and other pro forma
financial information required to be included therein
and such information presents fairly the information
shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to
pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and,
in the opinion of the Company, the assumptions used in
the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to
therein.]
(v) Each of the Offerors meets, and at the
respective times of commencement and consummation of
the offering of the Securities will meet, the
registrant requirements for use of Form S-3 under the
1933 Act and the 1933 Act Regulations.
(vi) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise or
of the Trust, whether or not arising in the ordinary
course of business, and (B) there have been no
transactions entered into by the Trust or by the
Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material
with respect to the Trust or the Company, considered as
one enterprise.
(vii) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Missouri with
corporate power and authority to own, lease and operate
its properties and to conduct its business as described
in the Registration Statement and Prospectus, to enter
into and perform its obligations under this Agreement,
the Declaration, the Indenture and the Preferred
Securities Guarantee Agreement and to purchase, own,
and hold the Common Securities issued by the Trust; and
the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure so to qualify would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the
Company.
(viii) The Company has no significant
subsidiaries, as "significant subsidiary" is defined in
Rule 405 of Regulation C of the 1933 Act Regulations.
(ix) The Trust has been duly created and is
validly existing in good standing as a business trust
under the Delaware Act with the power and authority to
own property and to conduct its business as described
in the Registration Statement and Prospectus and to
enter into and perform its obligations under this
Agreement, the Preferred Securities, the Common
Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign company and
is in good standing in any other jurisdiction in which
such qualification is necessary, except to the extent
that the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust;
the Trust is not a party to or otherwise bound by any
agreement other than those described in the Prospectus;
the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not
as an association taxable as a corporation; and the
Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally
accepted accounting principles.
(x) The Common Securities have been duly
authorized by the Declaration and, when issued and
delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the
terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the
Trust and will conform to all statements relating
thereto contained in the Prospectus; the issuance of
the Common Securities is not subject to preemptive or
other similar rights; and at the Closing Time all of
the issued and outstanding Common Securities of the
Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(xi) This Agreement has been duly
authorized, executed and delivered by each of the
Offerors.
(xii) The Declaration has been duly
authorized by the Company and, at the Closing Time,
will have been duly executed and delivered by the
Company and the Regular Trustees, and assuming due
authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware
Trustee, the Declaration will, at the Closing Time, be
a valid and binding obligation of the Company and the
Regular Trustees, enforceable against the Company and
the Regular Trustees in accordance with its terms,
except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors
rights generally or by general principles of equity
(regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Bankruptcy
Exceptions") and will conform to all statements
relating thereto in the Prospectus; and the Declaration
has been duly qualified under the 1939 Act.
(xiii) The Preferred Securities Guarantee
Agreement has been duly authorized by the Company and,
at the Closing Time will have been duly executed and
delivered by the Company, and, assuming due
authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will
constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions,
and the Preferred Security Guarantee and the Preferred
Securities Guarantee Agreement will conform to all
statements relating thereto contained in the
Prospectus; and the Preferred Securities Guarantee
Agreement, has been duly qualified under the 1939 Act.
(xiv) The Preferred Securities have been
duly authorized by the Declaration and, when issued and
delivered pursuant to this Agreement against payment of
the consideration set forth in Section 2, will be
validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to
the benefits of the Declaration and will conform to all
statements relating thereto contained in the Prospectus
and such description conforms to the provisions of the
Declaration; the issuance of the Preferred Securities
is not subject to preemptive or other similar rights;
and (subject to the terms of the Declaration) holders
of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for
profit.
(xv) The Indenture has been duly authorized
by the Company and, at the Closing Time will have been
duly executed and delivered by the Company, will
constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions;
the Indenture will conform to all statements relating
thereto contained in the Prospectus; and the Indenture
has been duly qualified under the 1939 Act.
(xvi) The Subordinated Debentures have been
duly authorized by the Company and, at the Closing
Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as
described in the Prospectus, will constitute valid and
binding obligations of the Company, enforceable against
the Company in accordance with their terms except to
the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions, will be in the form
contemplated by, and entitled to the benefits of, the
Indenture and will conform to all statements relating
thereto in the Prospectus.
(xvii) The Company's obligations under the
Preferred Securities Guarantee are subordinate and
junior in right of payment to all liabilities of the
Company and are pari passu with the most senior
preferred stock issued by the Company.
(xviii) The Subordinated Debentures are
subordinated and junior in right of payment to all
"senior indebtedness" (as defined in the Supplemental
Indenture) of the Company.
(xix) Each of the Regular Trustees of the
Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Declaration; the Declaration has been duly executed and
delivered by the Regular Trustees and is a valid and
binding obligation of each Regular Trustee, enforceable
against such Regular Trustee in accordance with its
terms except to the extent that enforcement thereof may
be limited by the Bankruptcy Exceptions.
(xx) None of the Offerors is, and following
the consummation of the transactions contemplated
hereby will be, an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxi) The Company is not in violation of its
charter or by-laws; the Trust is not in violation of
the Declaration or its certificate of trust filed with
the State of Delaware on _______ , 1996 (the
"Certificate of Trust"); neither the Company nor the
Trust is in default in the performance or observance of
any material obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which the Company or the Trust is a party
or by which it or either of them may be bound, or to
which any of the property or assets of the Company or
the Trust is subject, except for such defaults that
would not have a material adverse effect on the
condition (financial or otherwise), earnings, business
affairs or business prospects of the Trust or the
Company; and the execution, delivery and performance of
this Agreement, the Declaration, the Preferred
Securities, the Common Securities, the Indenture, the
Subordinated Debentures, the Preferred Securities
Guarantee Agreement and the Preferred Securities
Guarantee and the consummation of the transactions
contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder
and thereunder have been duly authorized by all
necessary action (corporate or otherwise) on the part
of the Offerors and do not and will not result in any
violation of the charter or by-laws of the Company, or
the Declaration or Certificate of Trust and do not and
will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets
of the Trust or the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Trust or the
Company is a party or by which it may be bound or to
which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a material adverse
effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Trust or the Company), or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or
administrative agency or other governmental body having
jurisdiction over the Trust or the Company or any of
their respective properties.
(xxii) Except as disclosed in the
Prospectus, there is no action, suit or proceeding
before or by any government, governmental
instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Trust or the
Company, threatened against or affecting the Trust or
the Company that is required to be disclosed in the
Prospectus or that could result in any material adverse
change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Trust or the Company, or that could materially and
adversely affect the properties or assets of the Trust
or the Company, or that could adversely affect the
consummation of the transactions contemplated in this
Agreement; the aggregate of all pending legal or
governmental proceedings that are not described in the
Prospectus to which the Trust or the Company is a party
or which affect any of their respective properties,
including ordinary routine litigation incidental to the
business of the Trust or the Company, would not have a
material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business
prospects of the Trust or the Company, considered as
one enterprise; and there are no contracts or documents
of the Company or the Trust that are required to be
filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Act Regulations that have not
been so filed.
(xxiii) The Company has made all necessary
filings and obtained all necessary consents or
approvals from the Missouri Public Service Commission
in connection with the issuance and sale of or the
issuance and sale of the Subordinated Debentures or the
Preferred Securities Guarantee hereunder, and no
consent, approval, authorization, order or decree of
any other court or governmental agency or body is
required for the consummation by the Company of the
transactions contemplated by this Agreement or the
issuance and sale of the Common Securities or the
offering of the Preferred Securities, except such as
may be required under the 1933 Act, the 1939 Act, the
1933 Act Regulations or state securities ("Blue Sky")
laws.
(xxiv) The Company is a public utility duly
authorized by its Restated Articles of Consolidation,
as amended, under which it was organized to carry on
the business in which it is engaged as set forth in the
Prospectus; and the Company has the legal right to
function and operate as an electric utility in the
States of Missouri and Kansas.
(xxv) The Company holds valid and subsisting
franchises, licenses and permits authorizing it to
carry on the respective utility businesses in which it
is engaged in the territory from which substantially
all of its gross operating revenue is derived.
(b) Any certificate signed by any officer of the
Company delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the
matters covered thereby.
Section 2. Sale and Delivery to Underwriters;
Closing.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price $________ per security, the
number of Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional
number of Preferred Securities that such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 10 hereof.
The initial public offering price per Preferred
Security shall be $_________. As compensation to the
Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay
at the Closing Time to the Representative, for the accounts
of the several Underwriters, a commission of $______ per
Preferred Security; provided, however, that the commission
per Preferred Security for sales of 10,000 or more Preferred
Securities to a single purchaser shall be $_______.
(b) Payment of the purchase price for the
Preferred Securities shall be made at the office of Sidley &
Austin, 875 Third Avenue, New York, New York 10022, or at
such other place as shall be agreed upon by the
Representative and the Trust, at 10:00 A.M. New York time on
the third business day (unless postponed in accordance with
the provisions of Section 10) after the date hereof, or such
other time not later than ten business days after such date
as shall be agreed upon by the Representative, the Trust,
and the Company (such time and date of payment and delivery
being herein called "Closing Time"). Payment shall be made
to the Trust by wire transfer of same day funds to an
account designated by the Trust, against delivery to the
Representative for the respective accounts of the
Underwriters of certificates for the Preferred Securities to
be purchased by them. At the Closing Time the Trust shall
deliver the Preferred Securities to the Representative
through the facility of The Depository Trust Company for the
account of each Underwriter against payment to or upon the
order of the Trust of the purchase price. It is understood
that each Underwriter has authorized the Representative, for
its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Preferred Securities
which it has agreed to purchase. Merrill Lynch,
individually and not as Representative of the Underwriters,
may (but shall not be obligated to) make payment of the
purchase price for the Preferred Securities to be purchased
by any Underwriter whose check has not been received by the
Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
At the Closing Time, the Company will pay, or
cause to be paid, the commission payable at such time to the
Underwriters under Section 2 hereof by wire transfer of same
day funds to an account designated by the Representative.
Section 3. Covenants of the Offerors. Each of
the Offerors jointly and severally covenant with each
Underwriter as follows:
(a) The Offerors will notify the
Representative immediately, and confirm the notice
in writing, (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of
the receipt of any comments from the Commission,
(iii) of any request by the Commission for any
amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose.
The Offerors will make every reasonable effort to
prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) The Offerors will give the
Representative notice of their intention to file
or prepare (i) any amendment to the Registration
Statement or (ii) any amendment or supplement to
the Prospectus (including any revised prospectus
which the Offerors propose for use by the
Underwriters in connection with the offering of
the Preferred Securities which differs from the
prospectus on file at the Commission at the date
hereof, whether or not such revised prospectus is
required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations), and will furnish the
Representative with copies of any such amendment
or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be,
and will not file any such amendment or supplement
or use any such prospectus to which the
Representative or counsel for the Underwriters
shall reasonably object. Subject to the
foregoing, the Offerors will promptly prepare the
supplement to Prospectus Supplement to reflect the
terms of the Preferred Securities and the terms of
the offering. The Offerors will file the
Prospectus Supplement pursuant to Rule 424(b)
under the Act not later than the Commission's
close of business on the second business day
following the execution and delivery of this
Agreement.
(c) The Offerors will deliver to
the Representative as many signed copies of the
Registration Statement as reasonably requested
(including exhibits filed therewith or
incorporated by reference therein and documents
incorporated or deemed to be incorporated by
reference therein) as the Representative may
reasonably request and will also deliver to the
Representative a conformed copy of the
Registration Statement as originally filed and of
each amendment thereto (without exhibits) for each
of the Underwriters.
(d) The Offerors will furnish to
each Underwriter, from time to time during the
period when the Prospectus is required to be
delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933
Act or the respective applicable rules and
regulations of the Commission thereunder.
(e) If at any time when the
Prospectus is required by the 1933 Act to be
delivered in connection with sales of the
Preferred Securities, any event shall occur as a
result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel to the
Company and the Trust, to amend or supplement the
Prospectus in order to make the Prospectus not
misleading in the light of the circumstances
existing at the time it is to be delivered to a
purchaser, or if it shall be necessary at any such
time to amend the Registration Statement or amend
or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933
Act Regulations, the Offerors will promptly
prepare and file with the Commission subject to
paragraph (b) above such amendment or supplement
as may be necessary to correct such untrue
statement or omission or to make the Registration
Statement or the Prospectus comply with such
requirements; and the Offerors will furnish to the
Underwriters a reasonable number of copies of such
amendment or supplement.
(f) The Offerors will endeavor, in
cooperation with the Underwriters, to qualify the
Preferred Securities (and the Preferred Securities
Guarantee) and the Subordinated Debentures for
offering and sale under the applicable securities
laws of such states and the other jurisdictions of
the United States as the Representative may
designate; provided, however, that none of the
Offerors shall be obligated to qualify as a
foreign corporation in any jurisdiction in which
it is not so qualified.
(g) The Trust will make generally
available to its security holders and to the
Representative as soon as practicable but not
later than 90 days after the close of the period
covered thereby, an earnings statement of the
Company (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the
first day of the Trust's fiscal quarter next
following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(h) For a period of five years
after the Closing Time, the Company will furnish
to the Representative and, upon request, to each
Underwriter, copies of all annual reports,
quarterly reports and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by
the Commission, and such other documents, reports
and information as shall be furnished by the
Company to its stockholders or security holders
generally.
(i) The Offerors will use best
efforts to effect the listing of the Preferred
Securities (including the Preferred Securities
Guarantee with respect thereto) on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Subordinated Debentures, the Company
will use its best efforts to effect the listing of
the Subordinated Debentures on the exchange on
which the Preferred Securities were then listed.
(j) During a period of 30 days
from the date hereof, neither the Trust nor the
Company will, without the Representative's prior
written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of,
or otherwise dispose of, any Preferred Securities,
any security convertible into or exchangeable into
or exercisable for Preferred Securities or the
Subordinated Debentures or any debt securities
substantially similar to the Subordinated
Debentures or equity securities substantially
similar to the Preferred Securities (except for
the Subordinated Debentures and the Preferred
Securities issued pursuant to this Agreement).
Section 4. Payment of Expenses. The Company will
pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including, but
not limited to, (i) the printing and filing of the
Registration Statement as originally filed and of each
amendment thereto, (ii) the printing of this Agreement,
(iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the
Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (v) the
qualification of the Preferred Securities, the Preferred
Securities Guarantee and the Subordinated Debentures under
securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue
sky survey and any legal investment survey, (vi) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto, of each preliminary prospectus, and of
the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of
copies of any blue sky survey and any legal investment
survey, (viii) the fees and expenses, if any, incurred with
respect to any filing with the National Association of
Securities Dealers, Inc. (ix) the fees and expenses of the
Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the
Indenture and the Subordinated Debentures; (x) the fees and
expenses of the Property Trustee, the Delaware Trustee and
the Guarantee Trustee, including the fees and disbursements
of counsel for the Property Trustee in connection with the
Declaration and the Certificate of Trust; (xi) any fees
payable in connection with the rating of the Preferred
Securities and Subordinated Debentures, (xii) the fees and
expenses incurred in connection with the listing of the
Preferred Securities (and the related Preferred Securities
Guarantee) and, if applicable, the Subordinated Debentures
on the New York Stock Exchange, (xiii) the cost and charges
of any transfer agent or registrar, (xiv) the cost of
qualifying the Preferred Securities with The Depository
Trust Company, and (xv) fees and disbursements of Sidley &
Austin, counsel for the Underwriters, incurred through the
date on which the Registration Statement is declared
effective under the 1933 Act, or the date on which any post-
effective amendment to the Registration Statement is
declared so effective prior to the date of the Prospectus
Supplement, but the Underwriters shall pay all fees and
expenses of such counsel incurred after such date, and all
transfer taxes, if any, on the resale of Preferred
Securities and any advertising expenses connected with any
offers they may make to sell Preferred Securities.
If this Agreement is terminated by the
Representative in accordance with the provisions of Section
5 or Section 9 hereof, the Company shall reimburse the
Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters'
Obligations. The obligations of the Underwriters hereunder
are subject to the accuracy of the representations and
warranties of the Offerors herein contained, to the
performance by the Offerors of their obligations hereunder,
and to the following further conditions:
(a) At Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission. The Prospectus Supplement
shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such
filing by the 1933 Act Regulations and in accordance with
Section 3(b) and prior to Closing Time the Offerors shall
have provided evidence satisfactory to the Representative of
such timely filing.
(b) At Closing Time the Representative shall have
received:
(1) The favorable opinion, dated as of
Closing Time, of Jeanie Sell Latz, Senior Vice
President and Chief Legal Officer of the Company, in
form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly
incorporated and is validly existing in good
standing under the laws of the State of Missouri
and is duly qualified as a foreign corporation to
do business in the State of Kansas.
(ii) The Company is a public
utility duly authorized by its Restated Articles
of Consolidation, as amended, under which it was
organized to carry on the business in which it is
engaged as set forth in the Prospectus; and the
Company has the legal right to function and
operate as an electric utility in the States of
Missouri and Kansas;
(iii) The statements in the
Prospectus under the captions "Risk Factors,"
"Description of the Preferred Securities,"
"Description of the Preferred Securities
Guarantee," "The Trusts," "Description of the
Subordinated Debentures," "Effect of Obligations
under the Subordinated Debentures and the
Preferred Securities Guarantee," insofar as they
constitute matters of law, summaries of legal
matters, documents or proceedings, or legal
conclusions, have been reviewed by such counsel
and fairly present the information disclosed
therein in all material respects.
(iv) The Company holds valid and
subsisting franchises, licenses and permits
authorizing it to carry on the respective utility
businesses in which it is engaged in the territory
from which substantially all of its gross
operating revenue is derived.
(v) The Registration Statement is
effective under the 1933 Act and, to the best of
such counsel's knowledge and information, no stop
order suspending the effectiveness of the
Registration Statement has been issued under the
1933 Act, and no proceedings therefor have been
initiated or threatened by the Commission.
(vi) The Registration Statement and the
Prospectus and each amendment or supplement
thereto (in each case, other than the financial
statements and the notes thereto, the financial
schedules, and any other financial and statistical
data included or incorporated by reference
therein, as to which such counsel need express no
belief), excluding the documents incorporated by
reference therein, complied as to form in all
material respects with the requirements of the
1933 Act and the 1933 Act Regulations; and the
Declaration, the Indenture and the Preferred
Securities Guarantee Agreement filed with the
Commission as part of the Registration Statement
complied as to form in all material respects with
the requirements of the 1939 Act and the 1939 Act
Regulations.
(vii) Each of the documents
incorporated by reference in the Registration
Statement or the Prospectus at the time they were
filed or last amended (other than the financial
statements and the notes thereto, the financial
schedules, and any other financial or statistical
data included or incorporated by reference
therein, as to which such counsel need express no
belief) complied as to form in all material
respects with the requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act, and the
1934 Act Regulations, as applicable.
(viii) Each of the Offerors meets the
registrant requirements for use of Form S-3 under
the 1933 Act Regulations.
(ix) The Common Securities, the
Preferred Securities, the Subordinated Debentures,
the Preferred Securities Guarantee, the
Declaration, the Indenture and the Preferred
Securities Guarantee Agreement conform in all
material respects to all statements relating
thereto contained in the Prospectus.
(x) To the best of such counsel's
knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments or documents required to be described
or referred to in the Registration Statement or to
be filed as exhibits thereto other than those
described or referred to therein or filed or
incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are
correct, and no default exists in the due
performance or observance of any material
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instruments
described, referred to, filed or incorporated by
reference.
(xi) All of the issued and outstanding
Common Securities of the Trust are directly owned
by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(xii) This Agreement has been duly
authorized, executed and delivered by each of the
Trust and the Company.
(xiii) The Declaration has been duly
qualified under the 1939 Act.
(xiv) The Preferred Guarantee Agreement
has been duly authorized, executed and delivered
by the Company and, assuming it is duly
authorized, executed, and delivered by the
Guarantee Trustee, is a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms, except to
the extent that enforcement thereof may be limited
by Bankruptcy Exceptions; and the Preferred
Securities Guarantee Agreement has been duly
qualified under the 1939 Act.
(xv) The Indenture has been duly
executed and delivered by the Company and,
assuming due authorization, execution, and
delivery thereof by the Debt Trustee, is a valid
and binding obligation of the Company, enforceable
against the Company in accordance with its terms,
except to the extent that enforcement thereof may
be limited by the Bankruptcy Exceptions; and the
Indenture has been duly qualified under the 1939
Act.
(xvi) The Subordinated Debentures are
in the form contemplated by the Indenture, have
been duly authorized, executed and delivered by
the Company and, when authenticated by the Debt
Trustee in the manner provided for in the
Indenture and delivered against payment therefor,
will constitute valid and binding obligations of
the Company, enforceable against the Company in
accordance with their terms, except to the extent
that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xvii) The Subordinated Debentures are
subordinate and junior in right of payment to all
"senior indebtedness" (as defined in the
Supplemental Indenture) of the Company.
(xviii) The Company's obligations under
the Preferred Securities Guarantee are subordinate
and junior in right of payment to all liabilities
of the Company and are pari passu with the most
senior preferred stock issued by the Company.
(xix) Neither the Company nor the Trust
is an "investment company" or a company
"controlled" by an "investment company" within the
meaning of the 1940 Act.
(xx) The Declaration has been duly
authorized, executed and delivered by the Company
and each of the Regular Trustees and constitutes a
valid and binding obligation of the Company and
each of the Regular Trustees, enforceable against
the Company and each of the Regular Trustees in
accordance with its terms, except to the extent
that the enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xxi) There are no legal or
governmental proceedings pending or, to the best
of such counsel's knowledge, threatened which are
required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending
legal or governmental proceedings to which the
Company is a party or of which any of its property
is the subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business of the
Company, are, considered in the aggregate, not
material to the financial condition of the
Company.
(xxii) The Company has made all
necessary filings and obtained all necessary
consents or approvals from the Missouri Public
Service Commission in connection with the issuance
and sale of the Subordinated Debentures or the
Preferred Securities Guarantee pursuant to this
Agreement, and no consent, approval,
authorization, order or decree of any other court
or governmental agency or body is required for the
consummation by the Company of the transactions
contemplated by this Agreement or for the issuance
and sale of the Common Securities or the offering
of the Preferred Securities, except such as may be
required under the 1933 Act, the 1939 Act, the
1933 Act Regulations or Blue Sky laws.
(xxiii) To the best of such counsel's
knowledge, the Company is not in violation of its
Restated Articles of Consolidation, as amended, or
its by-laws or in default in the performance or
observance of any material obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note or lease
to which it is a party or by which it or any of
its properties may be bound. The execution,
delivery and performance of this Agreement, the
Declaration, the Preferred Securities, the Common
Securities, the Indenture, the Subordinated
Debentures, the Preferred Securities Guarantee
Agreement, and the Preferred Securities Guarantee
and the consummation of the transactions
contemplated herein and therein, and the
compliance by each of the Offerors with their
respective obligations hereunder, will not
conflict with or constitute a breach of, or
default under, or result in the creation or
imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such
counsel and to which the Company is a party or by
which it may be bound or to which any of the
property or assets of the Company is subject, or
any law, administrative regulation or
administrative or court decree known to such
counsel to be applicable to the Company of any
court or governmental agency, authority or body or
any arbitrator having jurisdiction over the
Company; nor will such action result in any
violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws
of the Company.
(xxiv) The Declaration constitutes a
valid and binding obligation of the Company and
the Regular Trustees and is enforceable against
the Company and the Regular Trustee in accordance
with its terms, except to the extent that the
enforcement thereof may be limited by the
Bankruptcy Exceptions.
Such letter shall additionally state that
nothing has come to the attention of such counsel
that would lead such counsel to believe that the
Registration Statement, at the time it became effective,
and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the
Company with the Commission subsequent to the
effectiveness of the Registration Statement, then
at the time such amendment became effective or at
the time of the most recent such filing, and at
the date hereof, contains or contained an untrue
statement of a material fact or omits or omitted
to state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that the Prospectus as
amended or supplemented at the time it was filed
or mailed for filing pursuant to Rule 424(b) under
the 1933 Act contained or as amended or
supplemented at the Closing Time contains any
untrue statement of a material fact or omitted or
omits to state a material fact necessary in order
to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
Such opinion shall be to such
further effect with respect to other legal matters
relating to this Agreement and the sale of the
Securities hereunder as counsel for the
Underwriters may reasonably request. In giving
such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions
other than the law of the State of Missouri, the
federal law of the United States and the General
Corporation Law and the Business Trust Act of the
State of Delaware, upon opinions of other counsel,
who shall be counsel satisfactory to counsel for
the Underwriters, in which case the opinion shall
state that such counsel believe that you and
counsel for the Underwriters are entitled to so
rely. Such counsel may also state that, insofar
as such opinion involves factual matters, such
counsel has relied to the extent such counsel
deems proper, upon representations of officers of
the Company and certificates of public officials;
provided that such certificates have been
delivered to the Underwriters.
(2) The favorable opinion, dated as of
Closing Time, of Pepper, Hamilton & Scheetz, special
counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Trust has been duly
created and is validly existing in good standing
as a business trust under the Delaware Act; all
filings required under the laws of the State of
Delaware with respect to the formation and valid
existence of the Trust as a business trust have
been made; the Trust has all necessary power and
authority to own property and to conduct its
business as described in the Registration
Statement and the Prospectus and to enter into and
perform its obligations under this Agreement, the
Preferred Securities and the Common Securities;
the Trust is duly qualified and in good standing
as a foreign company in any other jurisdiction in
which such qualification is necessary, except to
the extent that the failure to so qualify or be in
good standing would not have a material adverse
effect on the Trust; and the Trust is not a party
to or otherwise bound by any agreement known to
such counsel other than those described in the
Prospectus.
(ii) The Common Securities have
been duly authorized for issuance and, when
issued, delivered and paid for in accordance with
the Declaration and as described in the
Prospectus, will be validly issued and fully paid
and non-assessable undivided beneficial interests
in the assets of the Trust, and the issuance of
the Common Securities is not subject to preemptive
or other similar rights.
(iii) The Preferred Securities
have been duly authorized for issuance and, when
issued, delivered and paid for in accordance with
this Agreement, will be validly issued, fully paid
and non-assessable undivided beneficial interests
in the assets of the Trust; the holders of the
Preferred Securities will be entitled to the same
limitation of personal liability under Delaware
law as is extended to stockholders of private
corporations for profit; and the issuance of the
preferred Securities is not subject to preemptive
or other similar rights. Such counsel may note
that the Preferred Securities holders may be
obligated, pursuant to the Declaration, to (a)
provide indemnity and/or security in connection
with and pay taxes or governmental charges arising
from transfers of Preferred Securities and the
issuance of replacement Preferred Securities, and
(b) provide security and indemnity in connection
with requests of or directions to the Property
Trustee to exercise its rights and powers under
the Declaration.
(iv) The execution and delivery by
the Trust of this Agreement and the performance by
the Trust of its obligations hereunder have been
duly authorized by all necessary action on the
part of the Trust.
(v) The issuance and sale by the
Trust of the Preferred Securities and the Common
Securities, the purchase by the Trust of the
Subordinated Debentures, the execution, delivery
and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions
contemplated hereby and compliance by the Trust
with its obligations hereunder will not violate
(A) any of the provisions of the Certificate of
Trust or the Declaration or (B) any applicable
Delaware law or administrative regulation.
(3) The favorable opinion, dated as of
Closing Time, of the Law Department of The First
National Bank of Chicago, counsel for the Property
Trustee and the Guarantee Trustee, in form and
substance satisfactory to counsel for the Underwriters
to the effect that:
(i) The First National Bank of Chicago
is a national association with trust powers, duly
organized, validly existing and in good standing
under the laws of the United States with all
necessary power and authority to execute and
deliver, and to carry out and perform its
obligations under the terms of the Declaration and
the Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and
performance by the Property Trustee of the
Declaration and the execution, delivery and
performance by the Guarantee Trustee of the
Preferred Securities Guarantee Agreement have been
duly authorized by all necessary corporate action
on the part of the Property Trustee and the
Guarantee Trustee, respectively. The Declaration
and the Preferred Securities Guarantee Agreement
have been duly executed and delivered by the
Property Trustee and the Guarantee Trustee,
respectively, and constitute the legal, valid and
binding obligations of the Property Trustee and
the Guarantee Trustee, respectively, enforceable
against the Property Trustee and the Guarantee
Trustee, respectively, in accordance with their
terms, except as enforcement thereof may be
limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and
performance of the Declaration and the Preferred
Securities Guarantee Agreement by the Property
Trustee and the Guarantee Trustee, respectively,
do not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Property
Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or
authorization of, or registration with or notice
to, any federal banking authority is required for
the execution, delivery or performance by the
Property Trustee and the Guarantee Trustee of the
Declaration and the Preferred Securities Guarantee
Agreement.
(v) The Statements of Eligibility
on Forms T-1 with respect to each of the Property
Trustee, the Debt Trustee, and the Guarantee
Trustee filed with the Commission as part of the
Registration Statement complied as to form in all
material respects with the requirements of the
1939 Act and the 1939 Act Regulations.
(vi) The Declaration constitutes a
valid and binding obligation of the Property
Trustee and the Delaware Trustee and is
enforceable against the Property Trustee and the
Delaware Trustee in accordance with its terms,
except to the extent that the enforcement thereof
may be limited by the Bankruptcy Exceptions.
(4) The opinion of Sidley & Austin, as
counsel for the Underwriters, to the Representative at
the Closing Time with respect to the validity of the
Securities and with respect to the Registration
Statement, the Prospectus, and other related matters as
the Representative may reasonably require and including
that:
(i) under current law, for United
States federal income tax purposes (A) the
Subordinated Debentures will constitute
indebtedness of the Company and (B) the interest
on the Subordinated Debentures will be deductible
by the Company on an economic accrual basis in
accordance with section 163(e) of the Internal
Revenue Code of 1986, as amended, and Treasury
Regulation Section 1.163-7, subject to any
applicable limitations on the Company's ability to
deduct interest on any of its indebtedness;
(ii) under current law, the Trust will
be classified for United States federal income tax
purposes as a grantor trust and not as an
association taxable as a corporation; accordingly,
for United States federal income tax purposes,
each holder of Preferred Securities generally will
be considered the owner of an undivided interest
in the Subordinated Debentures, and each holder
will be required to include in its gross income
any original issue discount accrued with respect
to its allocable share of the Subordinated
Debentures; and.
(iii) the discussion set forth in the
Prospectus Supplement under the caption "United
States Federal Income Taxation" is a fair and
accurate summary of the matters addressed therein,
based upon current law and the assumptions stated
or referred to therein.
(c) At Closing Time, there shall not have been
since the date hereof or since the respective dates as of
which information is given in the Registration Statement and
the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Trust or the
Company considered as one enterprise, whether or not arising
in the ordinary course of business, and the Representative
shall have received a certificate of a Vice President of the
Company and of the chief financial or chief accounting
officer of the Company and a certificate of a Regular
Trustee of the Trust, and dated as of Closing Time, to the
effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii)
the Trust and the Company have complied with all agreements
and satisfied all conditions on their part to be performed
or satisfied at or prior to Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) The Representative shall have received from
Coopers & Lybrand L.L.P. two letters, one dated as of the
date hereof and delivered on such date and the other dated
as of the Closing Time and delivered at such time, in form
and substance satisfactory to the Representative, to the
effect that:
(i) They are independent public accountants
with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations;
(ii) In their opinion, the financial
statements and supporting schedule(s) of the Company
audited by them and included or incorporated by
reference in the Registration Statement comply as to
form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to registration statements
on Form S-3 and the 1934 Act and the 1934 Act
Regulations;
(iii) They have performed specified
procedures, not constituting an audit, including a
reading of the latest available interim financial
statements of the Company, a reading of the minute
books of the Company since the end of the most recent
fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain
officials of the Company responsible for financial and
accounting matters with respect to the unaudited
consolidated financial statements included in the
Registration Statement and Prospectus and the latest
available interim unaudited financial statements of the
Company, and such other inquiries and procedures as may
be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their
attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the
Company included in the Registration Statement and
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted
accounting principles in the United States applied on a
basis substantially consistent with that of the audited
financial statements included therein, or (B) at a
specified date not more than five days prior to the
date of such letter, there was any change in the
capital stock or any increase in long-term debt of the
Company or any decrease in the common shareholders'
equity of the Company other than for the declaration of
regular quarterly dividends, in each case as compared
with the amounts shown on the most recent balance sheet
of the Company included in the Registration Statement
and Prospectus or, during the period from the date of
such balance sheet to the date of such letter, there
were any decreases, as compared with the corresponding
period in the preceding year, in revenues or net income
of the Company, except in each case as set forth in or
contemplated by the Registration Statement and
Prospectus or except for such exceptions (e.g.
inability to determine such decreases because of
insufficient accounting information available after the
date of such most recent balance sheet) enumerated in
such letter as shall have been agreed to by the Agents
and the Company; and
(iv) In addition to the examination referred
to in their report included or incorporated by
reference in the Registration Statement and the
Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information which are included or incorporated by
reference in the Registration Statement and Prospectus
and which are specified by the Representative, and have
found such amounts, percentages and financial
information to be in agreement with the relevant
accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, the Preferred Securities
shall be rated in one of the four highest rating categories
for long term debt ("Investment Grade") by any nationally
recognized statistical rating agency, and the Trust shall
have delivered to the Representative a letter, dated the
Closing Time, from such nationally recognized statistical
rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and
the Subordinated Debentures have Investment Grade ratings;
and there shall not have occurred any decrease in the
ratings of any of the securities of the Company or of the
Preferred Securities by any "nationally recognized
statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act).
(f) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock
Exchange upon notice of issuance.
If any condition specified in this Section shall
not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time at or
prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided
in Section 4 and Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
Section 6. Indemnification.
(a) The Offerors agree to jointly and severally
indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement (or any amendment thereto),
including the information deemed to be part of the
Registration Statement pursuant to Rule 430A(b) of the
1933 Act Regulations, if applicable, or the omission or
alleged omission therefrom of a material fact required
to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus
or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever
as incurred (including, subject to Section 6(c) hereof,
the fees and disbursements of counsel chosen by Merrill
Lynch) reasonably incurred, in investigating, preparing
or defending against any litigation, or any
investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or
omission, to the extent that any such expense is not
paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to
the Trust or the Company by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and
provided, further, that this indemnity agreement with
respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting
any such losses liabilities, claims, damages or expenses
purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden of proving
that a copy of the Prospectus (as then amended or
supplemented if the Company or the Trust shall have
furnished any such amendments or supplements thereto), but
excluding documents incorporated or deemed to be
incorporated by reference, was not sent or given by or on
behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of
the sale of such Securities to such person and if the
Prospectus (as so amended or supplemented, but excluding
documents incorporated or deemed to be incorporated by
reference therein) would have corrected the defect giving
rise to such loss, liability, claim, damage or expense, it
being understood that this proviso shall have no application
if such defect shall have been corrected in a document which
is incorporated or deemed to be incorporated by reference in
the Prospectus.
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 6(a)
hereunder.
(c) Each Underwriter severally agrees to
indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration
Statement, and each person, if any, who controls the
Offerors within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Offerors by such Underwriter through
Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a), counsel to the
indemnified parties shall be selected by the Representative,
and in the case of parties indemnified pursuant to Section
6(b), counsel to the indemnified parties shall be selected
by the Company. An indemnifying party may participate at
its own expense in the defense of any such action, provided,
however, that counsel to the indemnifying parties shall not
(except with the consent of the indemnified parties) also be
counsel to the indemnified parties. In no event shall the
indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in
connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or
not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party
from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(e) If at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)
effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated
by Section 6(a) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such
request to be reasonable and (ii) provides written notice to
the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such
settlement.
Section 7. Contribution. In order to provide
for just and equitable contribution in circumstances in
which the indemnity agreement provided for in Section 6
hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with
its terms, the Offerors and the Underwriters shall
contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Offerors and one or more
of the Underwriters, as incurred, in such proportion
represented by the percentage that the underwriting
compensation paid by the Company appearing on the cover page
of the Prospectus bears to the initial public offering price
appearing thereon and the Offerors are responsible for the
balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each
director of the Company and each officer of the Company who
signed the Registration Statement, each trustee of the Trust
and each person, if any, who controls an Offeror within the
meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Offerors.
Section 8. Representations, Warranties and
Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement, or
contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors and
shall survive delivery of the Preferred Securities to the
Underwriters.
Section 9. Termination of Agreement.
(a) The Representative may terminate this
agreement, by notice to the Offerors, at any time at or
prior to Closing Time (i) if there has been, since the date
of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any
material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Trust and the Company considered as one
enterprise, whether or not arising in the ordinary course of
business, (ii) if there has occurred any material adverse
change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is
such as to make it, in the judgment of the Representative,
impracticable to market the Preferred Securities or to
enforce contracts for the sale of the Preferred Securities,
(iii) if trading in any securities of the Company or the
Preferred Securities has been suspended or materially
limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange has been
suspended, limited or restricted or minimum or maximum
prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by said exchange
or by order of the Commission or any other governmental
authority, (iv) if a banking moratorium has been declared by
either Federal, New York or Delaware authorities, or (v) if
there has been any decrease in the ratings of any of the
securities of the Company or of the Preferred Securities by
any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the 1933 Act),
or (v) if there shall have come to the attention of the
Representative any facts that would cause the Representative
to believe that the Prospectus, at the time it was required
to be delivered to a purchaser of Securities, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statement
therein, in light of the circumstances existing at the time
of such delivery, not misleading.
(b) If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of
any party to any other party except as provided in Section 4
hereof and Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
Section 10. Default by One or More of the
Underwriters. If one or more of the Underwriters shall fail
at Closing Time to purchase the Preferred Securities that it
or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the
right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does
not exceed 10% of the Preferred Securities, each of the non-
defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the Preferred Securities, this Agreement shall
terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative or the Offerors shall have the right to
postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the
Registration Statement or Prospectus or in any other
documents or arrangements.
Section 11. Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunications. Notices to the
Underwriters shall be directed to the Representative at
Merrill Lynch World Headquarters, North Tower, World
Financial Center, New York, New York 10281-1201, attention
of _________________________; notices to the Trust and the
Company shall be directed to them at 1201 Walnut, Kansas
City, Missouri 64106, Attention: Treasurer.
Section 12. Parties. This Agreement shall
inure to the benefit of and be binding upon the Underwriters
and the Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Trust and
the Company and their respective successors and the
controlling persons and officers, directors and trustees
referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision
herein or therein contained. This Agreement and all
conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Trust
and the Company and their respective successors, and said
controlling persons and officers, directors and trustees and
their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
Section 13. Governing Law and Time. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to
agreements made to and to be performed in said State.
Except as otherwise set forth herein, specified times of day
refer to New York City time.
Section 14. Counterparts. This Agreement may
be executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your
understanding or our agreement, please sign and return to
the Trust a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement
between the Underwriters and the Trust and the Company in
accordance with its terms.
Very Truly yours,
KANSAS CITY POWER & LIGHT COMPANY
By________________________
Title:
KCPL Financing _
By________________________
Title: Trustee
By________________________
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By__________________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
Number
Name of Underwriter of Securities
_________________ _____________