Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers herein contained as of the date hereof and the Closing Date, to the performance by the Issuers of their obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date. (b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇ & B▇▇▇, LLP, Kansas counsel for the Issuers, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; (ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; (iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; (iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus; (v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); (vi) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and (vii) This Agreement has been duly authorized, executed and delivered by the Company. (c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C., Missouri counsel for the Issuers, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification; (ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; (iii) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company; (iv) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus; (v) This Agreement has been duly authorized, executed and delivered by the Company; and (vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below. (d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Issuers, to the effect that no approval, authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction). (e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Issuers, to the effect that: (i) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; (ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; (iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus; (iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction); (v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations; (vi) This Agreement has been duly authorized, executed and delivered by the Company; and (vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).” (f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that: (i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus; (ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust; (iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; (iv) The Common Securities have been duly authorize
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Securities Purchasers' Bonds shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇▇ & B▇▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities Resolution Supplemental Indenture, the Purchased Bonds, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(viiii) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement any Delayed Delivery Contract or the Securities Resolution Purchased Bonds will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viiiv) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign for- eign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration StatementProspectus;
(iii) The Purchasers' Bonds have been duly authorized, executed, issued and delivered by the General Use Disclosure Package Company and constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof) and will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; the Supplemental Indenture has been filed for record as a mortgage of real estate in Cherokee County, Kansas and in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ Counties, Missouri (and specifying any other recording or filing at the Closing Date) and, upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in all other counties in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being un- derstood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iiiix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the CompanyCompany (other than the lien of the Indenture);
(ivxi) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, or any amendment or supplement thereto, as of its their respective effective or issue date and dates and, with respect to the Prospectus, also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vixii) Other than disclosed or contemplated by the General Use Disclosure Package Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇▇ & B▇▇▇, LLP ▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that all approvals of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities ResolutionSupplemental Indenture, the Trust Purchased Bonds, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Debt Securities Purchasers' Bonds have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or the enforcement of the security provided by the Indenture or by general principles of equity;
equity and, (iiA) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by as to the Company's interest in the Iatan Generating Station, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement terms of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Iatan Station Ownership Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statementdated July 31, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of 1978, among Kansas which are required for the issuanceCity Power & Light Company, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ St. ▇▇▇▇▇▇ Light & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Power Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizeand
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Purchasers' Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Pur- chased Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreementthe Securities Resolution, the Trust Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viivi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws law of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;; and
(ivv) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Packageany amendment or supplement thereto, as of the Applicable Timetheir respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP ▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel coun- sel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP▇▇, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry)counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein or omitted therefrom and the Forms Form T-1 of the TrusteesTrustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇▇▇▇▇; B▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have that such counsel has participated in conferences with officers and other representatives of the IssuersCompany, counsel for the Company, representatives of the independent registered public accounting firm for accountants of the Issuers, representatives of counsel for the Purchasers Company and representatives of the Purchasers at which the contents of the Registration StatementStatement and Prospectus, the Prospectus and the General Use Disclosure Package any subsequent amendments or supplements thereto, and related matters were discussed. Although we have made certain inquiries discussed and, although such counsel is not passing upon and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the foregoingopinions of officers, we advise you that counsel and other representatives of the Company), no facts have come to our the attention that of such counsel which lead us such counsel to believe that (i) either the Registration StatementStatement or the Prospectus, at the Effective Timeand any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express such counsel need make no comment with respect to the financial statements or and other financial data that is and statistical information included in or omitted from the Registration Statement, the Statement or Prospectus or the General Use Disclosure Package any such amendments or supplements or the Forms T-1Form T-1 of the Trustee).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & FingerLLP, P.A., special Delaware Counsel counsel for the IssuersPurchasers, to the effect that:
(i) The Trust is a Purchasers' Debt Securities have been duly formed authorized, executed, authenticated, issued and validly existing statutory trust delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in good standing under the Delaware Statutory Trust Act accordance with the statutory trust power Indenture and authority delivered to enter into and perform its paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations under this Agreement of the Company entitled to the benefits and security provided by the Trust AgreementIndenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to issue or affecting the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectusenforcement of creditors' rights or by general principles of equity;
(ii) Under The Indenture has been duly authorized, executed and delivered by the Delaware Statutory Company, has been duly qualified under the Trust Indenture Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and legally binding obligation instrument of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) The Common All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Form T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorizeauthorized, executed and delivered by the Company. In rendering such opinion ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii) and (iv) of the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representat
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇ & B▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of said state); and
(vii) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇Spencer, ▇▇▇▇▇ Scott, & D▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky “blue sky” laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;
(ivv) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas lawlaw covered therein, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that all approvals of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLPllp, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas Kansas, the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky “blue sky” laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, llp may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the IssuersCompany, representatives of the independent registered public accounting firm for the IssuersCompany, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that (a) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable Rules and Regulations and (b) no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment in clauses (a) or (b) with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of RD▇▇▇▇▇▇▇, ▇ & L▇▇▇▇▇▇ & FingerLLP, P.A., special Delaware Counsel counsel for the IssuersPurchasers, with respect to such matters as the Purchasers may reasonably request and in form and substance satisfactory to the effect that:Purchasers.
(ig) The Trust is a duly formed and validly existing statutory trust in good standing under You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under date of this Agreement and the Trust AgreementClosing Date and addressed to the Purchasers in form and substance reasonably acceptable to [ ].
(h) On the Closing Date, subsequent to issue the Purchased Preferred Securities respective dates as of which information is given in the General Use Disclosure Package and the Common Securities Prospectus, there shall have been no Material Adverse Change and there shall have been furnished to own property you a certificate, dated the Closing Date, from the Company, signed on behalf of the Company by the President, or the Vice President - Finance, stating in effect that to the best knowledge of the officer signing such certificate and conduct its business except as described may be reflected in or contemplated by the Registration Statement or stated in such certificate: (i) subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus;
, there has been no such Material Adverse Change; (ii) Under the Delaware Statutory Trust Act representations and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation warranties of the Company contained in Section 3 of this Agreement are correct and the EDE Trust Trustees, enforceable against Company has complied with all the Company agreements and satisfied all the EDE Trust Trustees, in accordance with its terms except as the same may conditions to be limited by bankruptcy, insolvency, reorganization and other laws relating to performed or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizesatisfie
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Purchasers' Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇ Anderson, Byrd, Richeson, Flaherty & B▇▇▇, LLPHenrichs, Kansas counsel for the Issuers▇▇▇pa▇▇, to the effect that▇▇▇ ▇▇▇ec▇ ▇▇▇▇:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreementthe Securities Resolution, the Trust Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viivi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇Spencer, ▇▇▇▇▇ Scott & D▇▇▇▇Dwyer, P.C., Missouri counsel for the IssuersCompany, to the effect that▇▇▇▇▇▇ ▇hat:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Serv- ice Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws law of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;; and
(ivv) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Packageany amendment or supplement thereto, as of the Applicable Timetheir respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇Spencer, ▇▇▇▇▇ Scott & D▇▇▇▇Dwyer, P.C. may rely, as to the incorporation of the Company and all matters ▇▇▇ ▇▇▇▇▇▇▇ ▇nd ▇▇▇ ▇atters governed by Kansas law, upon the opinion of AAnderson, Byrd, Richeson, Flaherty & Henrichs referred to in para▇▇▇▇▇ (▇) ▇▇▇▇e ▇▇▇, ▇▇ to ▇▇▇ ▇▇▇ter▇ ▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered d thereby, upon the opinion of Brydon, SSwearengen & England, Professional Corporation referred t▇ ▇▇ ▇▇ar▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d▇) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ Swearengen & England, Professional Corporation, special regulatory counsel ▇▇▇▇▇▇▇ for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & R▇▇▇▇▇▇ LLPReindel, counsel for the IssuersCompany, to the effect that:
(i▇) The Corresponding ▇▇▇ Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry)counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein or omitted therefrom and the Forms Form T-1 of the TrusteesTrustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & R▇▇▇▇▇▇ LLP, Reindel may rely, as to the incorporation of the Company and as to all other ▇▇▇▇▇▇▇ ▇▇▇ ▇s t▇ ▇▇▇ ▇ther matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of AAnderson, Byrd, Richeson, Flaherty & Henrichs; Brydon, Swearengen & ▇▇▇▇▇nd, ▇▇ofessio▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, SC▇▇▇▇▇▇▇▇on; ▇▇▇ & England, Professional Corporation; and S▇▇▇▇nc▇▇, ▇▇▇▇ot▇ & D▇▇▇▇▇, P.C. referred to above. In addition, ▇▇▇▇ ▇▇▇▇▇▇▇ sh▇▇▇ ▇tate that such counsel shall state that: “We have has participated in conferences with officers and other representatives of the IssuersCompany, counsel for the Company, representatives of the independent registered public accounting firm for accountants of the Issuers, representatives of counsel for the Purchasers Company and representatives of the Purchasers at which the contents of the Registration StatementStatement and Prospectus, the Prospectus and the General Use Disclosure Package any subsequent amendments or supplements thereto, and related matters were discussed. Although we have made certain inquiries discussed and, although such counsel is not passing upon and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorprated by reference in such documents. Subject the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the foregoingopinions of officers, we advise you that counsel and other representatives of the Company), no facts have come to our the attention that of such counsel which lead us such counsel to believe that (i) either the Registration StatementStatement or the Prospectus, at the Effective Timeand any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express such counsel need make no comment with respect to the financial statements or and other financial data that is and statistical information included in or omitted from incorporated by reference in the Registration Statement, the Statement or Prospectus or the General Use Disclosure Package any such amendments or supplements or the Forms T-1Form T-1 of the Trustee).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇Thompson Coburn LLP, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel counsel for the IssuersPurchasers, to the effect that:
(i) The Trust is a Purchasers' Debt Securities have been duly formed authorized, executed, authenticated, issued and validly existing statutory trust delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in good standing under the Delaware Statutory Trust Act accordance with the statutory trust power Indenture and authority delivered to enter into and perform its paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations under this Agreement of the Company entitled to the benefits and security provided by the Trust AgreementIndenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to issue or affecting the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectusenforcement of creditors' rights or by general principles of equity;
(ii) Under The Indenture has been duly authorized, executed and delivered by the Delaware Statutory Company, has been duly qualified under the Trust Indenture Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and legally binding obligation instrument of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) The Common All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Form T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorizeauthorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Comp▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇ll other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, Richeson, Flaherty & Henrichs; Brydon, Swearengen & ▇▇▇▇▇nd, ▇▇of▇▇▇▇▇▇▇▇ C▇▇▇▇▇▇▇▇on; ▇▇▇ ▇▇▇nc▇▇, ▇▇ott & D▇▇▇▇, P.C. referred to above. Thompson Coburn L▇▇ ▇▇▇▇ ▇▇▇ ▇▇pre▇▇ ▇▇y opinion with respect to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ forth in paragraphs (i), (ii) and (iv) of the opinion of Spencer, Scott & Dwyer, P.C. referred to above. In addition, ▇▇▇▇ ▇▇▇▇▇▇▇ sh▇▇▇ ▇tate that such counsel has participated in conferences
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇ & B▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇Spencer, ▇▇▇▇▇ Scott, & D▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;
(ivv) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the TrusteesTrustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the IssuersCompany, representatives of the independent registered public accounting firm for the IssuersCompany, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of RD▇▇▇▇▇▇▇, ▇ & L▇▇▇▇▇▇ & FingerLLP, P.A., special Delaware Counsel counsel for the IssuersPurchasers, with respect to such matters as the Purchasers may reasonably request and in form and substance satisfactory to the effect that:Purchasers.
(ig) The Trust is a duly formed and validly existing statutory trust in good standing under You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under date of this Agreement and the Trust AgreementClosing Date and addressed to the Purchasers in form and substance reasonably acceptable to [ ].
(h) On the Closing Date, subsequent to issue the Purchased Preferred Securities respective dates as of which information is given in the General Use Disclosure Package and the Common Securities Prospectus, there shall have been no Material Adverse Change and there shall have been furnished to own property you a certificate, dated the Closing Date, from the Company, signed on behalf of the Company by the President, or the Vice President - Finance, stating in effect that to the best knowledge of the officer signing such certificate and conduct its business except as described may be reflected in or contemplated by the Registration Statement or stated in such certificate: (i) subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus;
, there has been no such Material Adverse Change; (ii) Under the Delaware Statutory Trust Act representations and warranties of the Company contained in Section 3 of this Agreement are correct and the Trust Agreement, Company has complied with all the execution agreements and delivery by satisfied all the Trust of this Agreement, conditions to be performed or satisfied on its part at or prior to the Closing Date; and the performance by the Trust of its obligations hereunder, have been duly authorized by all necessary statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation no stop order suspending the effectiveness of the Company Registration Statement has been issued and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizeno proceedings
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Purchasers' Preferred Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers herein contained as of the date hereof and the Closing Date, to the performance by the Issuers of their obligations hereunder and to the following additional conditions:
(a) No The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of AAnderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇▇▇▇▇, Kansas counsel for the Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities and the Guarantee have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Corresponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viivi) This Agreement has been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale sale, delivery and delivery performance of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws law of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;; and
(ivv) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Issuers, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Packageany amendment or supplement thereto, as of the Applicable Timetheir respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP ▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Issuers, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale sale, delivery and delivery performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP▇▇, counsel for the Issuers, to the effect that:
(i) The Corresponding Debt Securities and the Guarantee have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration StatementProspectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the General Use Disclosure Package Corresponding Debt Securites, the Common Securities and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the Prospectus under the caption "United States Taxation," to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Issuers, counsel for the Issuers, representatives of the independent accountants of the Issuers and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement or the Prospectus, and any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1 of the Trustees).
(f) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Purchasers, to the effect that:
(i) The Corresponding Debt Securities and the Guarantee have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry)counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of AAnderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇▇▇▇▇; B▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizeLLP need not expr
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Securities Purchasers' Bonds shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of AAnderson, Byrd, Richeson, Flaherty & Henrichs, counsel for the Compan▇, ▇▇ ▇▇▇ e▇▇▇▇▇ & B▇▇▇, LLP, Kansas counsel for the Issuers, to the effect thatat:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Debt Securities Purchased Bonds or the Guarantee nor the execution, delivery and performance by the Company of this Agreementthe Supplemental Indenture, the Trust Purchased Bonds, any Delayed Delivery Contracts or this Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viiiii) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of SSpencer, Scott & Dwyer, P.C., counsel for the Company, to the effect ▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C., Missouri counsel for the Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration StatementProspectus;
(iii) The Purchasers' Bonds have been duly authorized, executed, issued and delivered by the General Use Disclosure Package Company and constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. Joseph Light & Power Company and the Company and of any oth▇▇ ▇▇▇eements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. Joseph Light & Power Company and the Company and of any oth▇▇ ▇▇▇eements by the Company re- lating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof) and will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; the Supplemental Indenture has been filed for record as a mortgage of real estate in Cherokee County, Kansas and in Jasper, Lawrence, and Newton Counties, Missouri (and specifying any ▇▇▇▇▇ ▇ecordi▇▇ ▇▇ filing at the Closing Date) and, upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in all other counties in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iiiix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws law of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;Company (other than the lien of the Indenture); and
(ivxi) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Packageany amendment or supplement thereto, as of the Applicable Timetheir respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇Spencer, ▇▇▇▇▇ Scott & D▇▇▇▇Dwyer, P.C. may rely, as to the incorporation of the Company and incorporati▇▇ ▇▇ ▇▇▇ ▇▇▇▇any ▇▇▇ all matters governed by Kansas law, upon the opinion of AAnderson, Byrd, Richeson, Flaherty & Henrichs referred to in ▇▇▇▇▇▇▇ph (▇) a▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered ▇▇ ▇▇ ▇▇l m▇▇▇▇▇▇ ▇overed thereby, upon the opinion of Brydon, SSwearengen & England, Professional Corporation refer▇▇▇ ▇▇ i▇ ▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph h (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ Swearengen & England, Professional Corporation, special regulatory counsel ▇▇▇▇▇▇▇ for the IssuersCompany, to the effect that all approvals of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities ResolutionSupplemental Indenture, the Trust Purchased Bonds, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & R▇▇▇▇▇▇ Reindel LLP, counsel for the IssuersCompany, to the effect thatt▇▇▇:
(i▇) The Corresponding Debt Securities Purchasers' Bonds have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or the enforcement of the security provided by the Indenture or by general principles of equityequity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. Joseph Light & Power Company and the Company and of any oth▇▇ ▇▇▇eements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or the enforcement of the security provided by the Indenture or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, equity and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, A) as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made 's interest in the General Use Disclosure Package and the Prospectus under the captionIatan Generating Station, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizee
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Securities Bonds shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇ & B▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities Resolution Supplemental Indenture, the Purchased Bonds, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(viiii) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, , any Delayed Delivery Contracts, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viiiv) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described de- scribed in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) The Purchased Bonds have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. J▇▇▇▇▇ Light & Power Company) and the Company and of any other agreements by the Company relating to its interest in such facility, (B) as to the Company’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility and (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and (A) as to the Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. J▇▇▇▇▇ Light & Power Company) and the Company and of any other agreements by the Company relating to its interest in such facility, (B) as to the Company’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility and (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been taken by adverse possession or may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture; the Indenture will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company, subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances, liens existing or placed on such properties or assets at the time of such acquisition, and also subject to the provisions of Article 12 of the Indenture and to certain possible claims of a trustee in bankruptcy and possible claims and taxes of the federal government; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in each county in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), including, without limitation, the properties of the Company referred to in Item 2. Properties in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2007, in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the CompanyCompany (other than the lien of the Indenture);
(ivxi) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vixii) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Issuers, to the effect that:
(i) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Public Service Commission of the State of Kansas Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizePurc
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Purchasers' Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;
(ivv) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, or any amendment or supplement thereto, as of its their respective effective or issue date and dates and, with respect to the Prospectus, also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇▇ & B▇▇▇, LLP ▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein or omitted therefrom and the Forms T-1 of the TrusteesT-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇; B▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have that such counsel has participated in conferences with officers and other representatives of the IssuersCompany, counsel for the Company, representatives of the independent registered public accounting firm for accountants of the Issuers, representatives of counsel for the Purchasers Company and representatives of the Purchasers at which the contents of the Registration StatementStatement and Prospectus, the Prospectus and the General Use Disclosure Package any subsequent amendments or supplements thereto, and related matters were discussed. Although we have made certain inquiries discussed and, although such counsel is not passing upon and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in such documents. Subject the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (other than to the foregoingextent set forth in paragraph (iii) above), we advise you that on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to our the attention that of such counsel which lead us such counsel to believe that (i) the Registration Statement, and any subsequent amendments thereto, at the Effective Timetime they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date or and as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable TimeClosing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we express such counsel need make no comment with respect to the financial statements or and other financial data that is and statistical information included in or omitted from incorporated by reference in the Registration Statement, the Statement or Prospectus or the General Use Disclosure Package any such amendments or supplements or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & FingerLLP, P.A., special Delaware Counsel counsel for the IssuersPurchasers, to the effect that:
(i) The Trust is a Purchasers' Debt Securities have been duly formed authorized, executed, issued and validly existing statutory trust delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in good standing under the Delaware Statutory Trust Act accordance with the statutory trust power Indenture and authority delivered to enter into and perform its paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations under this Agreement and of the Trust AgreementCompany entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to issue or affecting the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectusenforcement of creditors' rights or by general principles of equity;
(ii) Under The Indenture has been duly authorized, executed and delivered by the Delaware Statutory Company, has been duly qualified under the Trust Indenture Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and legally binding obligation instrument of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) The Common All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been duly authorizeobtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the R
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchasers Purchaser to purchase and pay for the Purchased Preferred Securities Notes shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties satisfaction or waiver of the Issuers herein contained as of the date hereof and the Closing Date, to the performance by the Issuers of their obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act conditions on or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.:
(b) You 8.1 On the Closing Date, the Purchaser shall have received an opinion, dated as of the Closing DateDate and addressed to the Purchaser, of A▇▇▇Ruskin, Moscou, E▇▇▇▇ & B▇▇▇Faltischek, LLPP.C., Kansas counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Purchaser, substantially to the effect that:
(ia) The Each of the Company has been and the Preferred Issuer is duly incorporated and is incorporated, validly existing and in good standing as a corporation in good standing under the laws of the State its jurisdiction of Kansasincorporation, with all requisite corporate power and authority (corporate and other) to own its properties and conduct its business as described now conducted.
(b) No options, warrants or other rights to purchase from the Company any Equity Interests in the Registration StatementCompany are outstanding, (B) no agreements, contracts, arrangements or other obligations of the General Use Disclosure Package Company to issue, or other rights granted by the Company to cause the Company to convert, any obligation into, or exchange any securities for, any Equity Interests in the Company are outstanding and (C) the Company is not obligated to have any of its securities registered under a registration statement filed by the Company under the Act with respect to any of the Securities.
(c) Each of the Company and the Prospectus;Preferred Issuer has all requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents.
(iid) The Corresponding Debt Securities Notes have been duly authorizedand validly authorized and executed by the Company and, executed, issued and (A) when delivered by the Company and paid for by the Purchaser in accordance with the terms of this Agreement, the Notes will constitute the valid and legally binding obligations of the Company Company, enforceable in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought; and (B) the holders of the Notes will be entitled to the benefits provided of the Indenture.
(e) The Account Control Agreement has been duly and validly authorized, executed and delivered by the Indenture Company and constitutes the Guarantee valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as that the same enforcement thereof may be limited by subject to (i) bankruptcy, insolvency, reorganization or other insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium, or affecting the enforcement of other similar laws now or hereafter in effect relating to creditors’ ' rights or by generally and (ii) general principles of equity (whether applied by a court of law or equity;) and the discretion of the court before which any proceeding therefor may be brought.
(iiif) Each of the Indenture, the Trust This Agreement and the Guarantee has been duly and validly authorized, executed and delivered by the Company, has been duly qualified under . This Agreement constitutes the Trust Indenture Act and constitutes a valid and legally binding instrument obligation of the Company, enforceable against the Company enforceable in accordance with its terms terms, except as that (A) the same enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by bankruptcy, insolvency, reorganization federal or other state securities laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;public policy considerations.
(ivg) The IndentureBased upon the representations, warranties and agreements of the Trust Company in Article 4 of this Agreement and of the Purchaser in Article 9 of this Agreement, it is not necessary in connection with the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuanceoffer, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior Notes to the issuance of the Purchased Preferred SecuritiesPurchaser under this Agreement, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion is expressed as to any approvals which may be required under the securities acts or Blue Sky laws subsequent resale of said state);any Note.
(vih) Neither the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents nor the sale, issuance, sale and execution or delivery of the Corresponding Debt Securities Notes will violate Regulation T, U or the Guarantee nor the execution, delivery and performance X promulgated by the Company Board of this Agreement, Governors of the Trust Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement has been duly authorized, executed and delivered by the CompanyFederal Reserve System.
(ci) You This Agreement, together with the Account Control Agreement, dated as of June 19, 2001 (the "Account Control Agreement"), between the Company and the Collateral Agent, is effective to create a valid, first priority security interest in the Collateral in favor of the Collateral Agent and the Holders and all proceeds thereof, securing the obligations evidenced by the Notes. No filing or other action will be necessary to perfect or protect such security interest.
8.2 The representations and warranties of the Company and the Preferred Issuer contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for the representations and warranties which were true and correct as of a certain specified date which shall continue to be true and correct as of such date). The statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date. The Company shall have complied in all material respects with all agreements and satisfied all conditions to be performed or satisfied hereunder at or prior to the Closing Date.
8.3 The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date, and no injunction or order shall have been issued that either (i) asserts that any of the transactions contemplated by the Transaction Documents is subject to the registration requirements of the Act or (ii) would prevent or suspend the issuance or sale of the Notes in any jurisdiction.
8.4 The Purchaser shall have received an opinioncertificates of the Company, dated the Closing Date, signed on behalf of S▇▇▇▇▇▇the Company by the Chairman of the Board, ▇▇▇▇▇ & D▇▇▇▇, P.C., Missouri counsel for the IssuersPresident or Chief Executive Officer and their Chief Financial Officer, to the effect that:
(ia) The Company has been duly incorporated the representations and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, warranties of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;
(iv) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Issuers, to the effect that no approval, authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Issuers, to the effect that:
(i) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate true and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, hereof and as of the Applicable Time, contained an untrue statement Closing Date (except for the representations and warranties which were true and correct as of a material fact certain specified date which shall continue to be true and correct as of such date), and the Company has performed all covenants and agreements and satisfied hereunder all conditions on their part to be performed or omitted satisfied hereunder at or prior to state a material fact necessary in order to make the statements therein, in Closing Date;
(b) the light sale of the circumstances under which they were made, Notes hereunder has not misleading been enjoined (it being understood that we express no comment with respect to the financial statements temporarily or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1permanently).”
(f) You shall have received an opinion, dated 8.5 On the Closing Date, of R▇▇▇▇▇▇▇the Purchaser shall have received the Account Control Agreement executed by the Company and such agreements shall be in full force and effect at all times from and after the Closing Date and the Purchaser shall have received confirmation that the Pledged Debentures have been deposited in the account set forth in the Account Control Agreement. On or before the Closing Date, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel the Purchaser and counsel for the IssuersPurchaser shall each have received such further documents, opinions, certificates, letters and schedules or instruments relating to the effect that:
(i) The Trust is a duly formed business, corporate, legal and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provision hereof only if they are reasonably satisfactory in all respects to the Purchaser and counsel for the EDE Trust TrusteesPurchaser. The Company shall furnish to the Purchaser such conformed copies of such documents, enforceable against the Company opinions, certificates, letters, schedules and the EDE Trust Trustees, instruments in accordance with its terms except such quantities as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorizePurchaser shall reasonably request.
Appears in 1 contract
Sources: Note Purchase and Security Agreement (New World Coffee Manhattan Bagel Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Securities Bonds shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇▇ & B▇▇▇▇, LLP, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, sale and delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities Resolution Supplemental Indenture, the Purchased Bonds, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of said state);
(viiii) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, , any Delayed Delivery Contracts, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of said state); and
(viiiv) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) The Purchased Bonds have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Bonds have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and (A) as to the Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. ▇▇▇▇▇▇ Light & Power Company) and the Company and of any other agreements by the Company relating to its interest in such facility, (B) as to the Company’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility, (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility and (D) as to the Company’s interest in the Plum Point Energy Station, except as the same may be limited by the terms of the Participation Agreement dated as of March 3, 2006 by and among the Company, Plum Point Energy Associates, LLC, East Texas Electric Cooperative, Inc. and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility (the agreements set forth in clauses (A), (B), (C) and (D), the “Plant Agreements”);
(iv) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and the Plant Agreements;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been taken by adverse possession or may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture; the Indenture will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company, subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances, liens existing or placed on such properties or assets at the time of such acquisition, and also subject to the provisions of Article 12 of the Indenture and to certain possible claims of a trustee in bankruptcy and possible claims and taxes of the federal government; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in each county in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), including, without limitation, the properties of the Company referred to in Item 2. Properties in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2009, in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Trust Agreement Supplemental Indenture or the Securities Resolution Purchased Bonds will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky “blue sky” laws of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the CompanyCompany (other than the lien of the Indenture);
(ivxi) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vixii) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas lawlaw covered therein, upon the opinion of A▇▇▇▇▇▇▇▇ & B▇▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that all approvals of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee Bonds or the execution, delivery and performance by the Issuers Company of the Securities ResolutionSupplemental Indenture, the Trust Purchased Bonds, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky “blue sky” laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Issuers, to the effect that:
(i) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorize
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchasers to purchase and pay for the Purchased Preferred Purchasers' Debt Securities shall be subject in their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers Company herein contained as of the date hereof and the Closing Date, to the performance by the Issuers Company of their its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission prior to the Closing Date.
(b) You shall have received an opinion, dated the Closing Date, of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇▇▇▇▇, Kansas counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
; (iii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreementthe Securities Resolution, the Trust Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(viivi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C., Missouri counsel for the IssuersCompany, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale and delivery of the Corresponding Purchased Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws law of any jurisdiction), conflict with or result in a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company;; and
(ivv) Such Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel has have no reason to believe that (a) either the Registration Statement, as of the Effective Time, Statement or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Packageany amendment or supplement thereto, as of the Applicable Timetheir respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package Statement and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the General Use Disclosure Package Registration Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP ▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the IssuersCompany, to the effect that no approval, authorization, consent or other order of any public board or body in the State States of ArkansasMissouri, Missouri Oklahoma or Oklahoma Arkansas is legally required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers Company of the Securities Resolution, the Trust Purchased Debt Securities, this Agreement or this Agreement any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for the IssuersCompany, to the effect that:
(i) The Corresponding Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee Indenture and the Corresponding Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry)counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein or omitted therefrom and the Forms Form T-1 of the TrusteesTrustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;; and
(vi) This Agreement has and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & B▇▇▇, LLP▇▇▇▇▇; B▇▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have that such counsel has participated in conferences with officers and other representatives of the IssuersCompany, counsel for the Company, representatives of the independent registered public accounting firm for accountants of the Issuers, representatives of counsel for the Purchasers Company and representatives of the Purchasers at which the contents of the Registration StatementStatement and Prospectus, the Prospectus and the General Use Disclosure Package any subsequent amendments or supplements thereto, and related matters were discussed. Although we have made certain inquiries discussed and, although such counsel is not passing upon and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in such documents. Subject the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (other than to the foregoingextent set forth in paragraph (iii) above), we advise you that on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to our the attention that of such counsel which would lead us such counsel to believe that (i) either the Registration StatementStatement or the Prospectus, at the Effective Timeand any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an 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 or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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 (it being understood that we express such counsel need make no comment with respect to the financial statements or and other financial data that is and statistical information included in or omitted from incorporated by reference in the Registration Statement, the Statement or Prospectus or the General Use Disclosure Package any such amendments or supplements or the Forms T-1Form T-1 of the Trustee).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇ & FingerLLP, P.A., special Delaware Counsel counsel for the IssuersPurchasers, to the effect that:
(i) The Trust is a Purchasers' Debt Securities have been duly formed authorized, executed, issued and validly existing statutory trust delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in good standing under the Delaware Statutory Trust Act accordance with the statutory trust power Indenture and authority delivered to enter into and perform its paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations under this Agreement and of the Trust AgreementCompany entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to issue or affecting the Purchased Preferred Securities and the Common Securities and to own property and conduct its business as described in the Prospectusenforcement of creditors' rights or by general principles of equity;
(ii) Under The Indenture has been duly authorized, executed and delivered by the Delaware Statutory Company, has been duly qualified under the Trust Indenture Act and the Trust Agreement, 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 statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and legally binding obligation instrument of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and or other laws relating to or affecting the enforcement of creditors’ ' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) The Common All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Form T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorizeauthorized, executed and delivered by the Company. In rendering such opinion ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii) and (iv) of the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with
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