The Empire District Electric Company Form of Purchase Agreement Unsecured Debt Securities (Date)
Exhibit
1(b)
The
Empire District Electric Company
Form of
Purchase Agreement
Unsecured
Debt Securities
(Date)
The
Empire District Electric Company
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▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
We refer
to the unsecured debt securities of The Empire District Electric Company (the
“Company”), a Kansas corporation, covered by Registration Statement No.
333-__________, which became effective on _______________ (the “Registration
Statement”). On the basis of the representations, warranties and
agreements contained in this Agreement, but subject to the terms and conditions
herein set forth, the purchaser or purchasers named in Schedule A
hereto (the “Purchasers”) agree to purchase, severally, and the Company agrees
to sell to the Purchasers, severally, the respective principal amounts of the
Company’s unsecured debt securities referred to below (the “Purchased Debt
Securities”) set forth opposite the name of each Purchaser on Schedule A
hereto.
The price
at which the Purchased Debt Securities shall be purchased from the Company by
the Purchasers shall be ______% of the principal amount thereof plus accrued
interest, if any, from ____________. The initial public offering
price shall be _____% of the principal amount thereof plus accrued interest, if
any, from ______________. The Purchased Debt Securities will be
offered as set forth in the Prospectus Supplement relating to such Purchased
Debt Securities.
The
Purchased Debt Securities will have the following terms:
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Title
of Debt Securities:
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Interest
Rate:
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% per annum
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Interest
Payment Dates:
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Maturity:
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Redemption
Provisions:
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Sinking
Fund:
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Conversion
Provisions:
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The
“Applicable Time” (as defined in Section 1 of the Company's Standard
Purchase Provisions — Unsecured Debt Securities) shall
be:
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[A.M./P.M.], New York City time on
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The
“Closing Date” (as defined in Section 2 of the Company’s Standard
Purchase Provisions—Unsecured Debt Securities) shall
be:
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The
closing of the purchase and sale of the Purchased Debt Securities shall
take place at:
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The
purchase price for the Purchased Debt Securities shall be paid
by:
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The
funds used to pay for the Purchased Debt Securities shall
be:
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Other:
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Delayed
Delivery Contracts:
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[Authorized]/[Not
authorized]
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[Delivery
Date
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___________________]
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Minimum
principal amount of Purchased Debt Securities to be sold pursuant to any
Delayed Delivery Contract:
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Maximum
aggregate principal amount of Purchased Debt Securities to be sold
pursuant to all Delayed Delivery Contracts:
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Compensation
to Purchasers:
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-2-
Notice to
the Purchasers shall be sent to the addresses as set forth on Schedule A
hereto.
If we are
acting as Representative(s) for the several Purchasers named in Schedule A hereto, we
represent that we are authorized to act for such several Purchasers in
connection with this financing, and that, if there are more than one of us, any
action under this Agreement taken by any of us will be binding upon all the
Purchasers.
All of
the provisions contained in the document entitled “The Empire District Electric
Company, Standard Purchase Provisions—Unsecured Debt Securities,” a copy of
which has been previously furnished to us (the “Standard Purchase Provisions”),
are hereby incorporated by reference in their entirety and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been set
forth in full herein.
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If the
foregoing is in accordance with your understanding of our agreement, kindly sign
and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Purchasers in accordance
with its terms.
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Very
truly yours,
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[NAME
OF PURCHASER]
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By:
________________________________________
Name:
Title:
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Acting
on behalf of itself and as Representative(s) of the several Purchasers
named in Schedule A hereto.2
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The
foregoing Purchase
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Agreement
is hereby confirmed
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as
of the date first above written.
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THE
EMPIRE DISTRICT ELECTRIC COMPANY
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By:
__________________________________
Name:
Title:
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2To be
deleted if the Purchase Agreement is not executed by one or more Purchasers
acting as Representative(s) of the Purchasers for purposes of this
Agreement.
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SCHEDULE A TO PURCHASE
AGREEMENT
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Name
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Address
and
Telecopier
Number
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Principal
Amount
of
Purchased Debt
Securities
to Be
Purchased
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Total
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$
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SCHEDULE B TO PURCHASE
AGREEMENT
-2-
THE
EMPIRE DISTRICT ELECTRIC COMPANY
STANDARD PURCHASE
PROVISIONS—UNSECURED DEBT SECURITIES
From time
to time, The Empire District Electric Company, a Kansas corporation (“Company”),
may enter into purchase agreements that provide for the sale of a designated
series of unsecured debt securities to the purchaser or purchasers named
therein. The standard provisions set forth herein may be incorporated
by reference in any such purchase agreement (“Purchase
Agreement”). The Purchase Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as “this
Agreement.” Unless otherwise defined herein, terms defined in the
Purchase Agreement are used herein as therein defined.
1. Introductory. The
Company proposes to issue and sell from time to time unsecured debt securities
registered under the registration statement referred to in Section 3(a)
(“Debt Securities”). The Debt Securities will be issued under an
Indenture, dated as of September 10, 1999 (“Original Indenture”), by and
between the Company and ▇▇▇▇▇ Fargo Bank, National Association (as successor by
merger to Norwest Bank Minnesota, National Association), as trustee (“Trustee”),
as supplemented and amended, including by a Securities Resolution (as defined in
the Indenture) pertaining to the particular series of Debt Securities involved
in the offering (the Original Indenture as so amended and supplemented, the
“Indenture”) and will have varying designations, interest rates and terms of
payment of interest, maturities, redemption and sinking fund provisions, if any,
and other terms, with all of such terms for any particular series of Debt
Securities being determined at the time of sale and being as set forth in the
Purchase Agreement and Securities Resolution relating to such series of Debt
Securities. The Debt Securities referred to in Schedule A of
the Purchase Agreement are hereinafter referred to as the “Purchased Debt
Securities.” The firm or firms, as the case may be, which agree to
purchase the Purchased Debt Securities are hereinafter referred to as the
“Purchasers” of such Purchased Debt Securities. The terms “you” and
“your” refer to those Purchasers (or the Purchaser) who sign the Purchase
Agreement either on behalf of themselves (or itself) only or on behalf of the
several Purchasers named in Schedule A
thereto, as the case may be. Any Purchased Debt Securities to be
purchased pursuant to Delayed Delivery Contracts (as defined below) as
hereinafter provided are herein referred to as “Contract Debt
Securities.”
Except
where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration
statement’s effectiveness for purposes of Section 11 of the Securities Act of
1933, as amended (the “Act”), as such section applies to the respective
Purchasers (the “Effective Time”), including (i) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein (other
than the Statements of Eligibility and Qualification of the trustees (the
“Forms T-1”)) and (ii) any information contained or incorporated by
reference in a prospectus filed with the Securities and Exchange Commission (the
“Commission”) pursuant to Rule 424(b) under the Act, to the extent such
information is deemed, pursuant to Rule 430A, Rule 430B or Rule 430C under the
Act, to be part of the Registration Statement at the Effective
Time.
The
Company has furnished to you, for use by the Purchasers and by dealers in
connection with the offering of the Purchased Debt Securities, copies of one or
more preliminary prospectus supplements, and the documents incorporated by
reference therein, relating to the Purchased Debt Securities. Except
where the context otherwise requires, “Pre-Pricing Prospectus,” as used herein,
means each such preliminary prospectus supplement, in the form so furnished,
together with any base prospectus (whether or not in preliminary form) included
in the Registration Statement furnished to you by the Company and
attached
to or used with such preliminary prospectus supplement. Except where
the context otherwise requires, “Base Prospectus,” as used herein, means any
such base prospectus and any base prospectus furnished to you by the Company and
attached to or used with the Prospectus Supplement (as defined
below).
Except
where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Purchased Debt
Securities, filed by the Company with the Commission pursuant to Rule 424(b)
under the Act on or before the second business day after the date hereof (or
such earlier time as may be required under the Act), in the form furnished by
the Company to you for use by the Purchasers and by dealers in connection with
the offering of the Purchased Debt Securities.
Except
where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Base Prospectus attached to or used with
the Prospectus Supplement.
“Permitted
Free Writing Prospectuses,” as used herein, means the documents listed on Schedule B to
the Purchase Agreement.
“Disclosure
Package,” as used herein, means the Pre-Pricing Prospectus most recently
furnished to the Purchasers prior to the Applicable Time, together with the
Permitted Free Writing Prospectuses.
“General
Use Disclosure Package,” as used herein, means the Disclosure Package, other
than each “road show” (as defined in Rule 433 under the Act), if any, related to
the offering of the Purchased Debt Securities contemplated hereby.
“Applicable
Time,” as used herein, means the time set forth in the Purchase Agreement, which
is the time when sales of the Purchased Debt Securities will first be
made.
Any
reference herein to the Registration Statement, any Base Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include the
documents, if any, incorporated by reference therein, as of the Effective Time
in the case of the Registration Statement and as of the date thereof in the case
of any other of such documents (the “Incorporated Documents”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such
Incorporated Documents. Any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus shall be deemed to refer to
and include the filing of any document under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), on or after the Effective Time, or the
date of such Base Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the
case may be.
As used
in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,”
“hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not to any particular
section, paragraph, sentence or other subdivision of this
Agreement. The term “or,” as used herein, is not
exclusive.
2. Sale and Delivery of the
Debt Securities. Subject to the terms and conditions set forth
in this Agreement, the Company will deliver the Purchaserd Debt Securities to
you for the account
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of the
Purchasers, at the place set forth in the Purchase Agreement against payment of
the purchase price therefor by wire transfer or certified or official bank check
or checks in immediately available funds or clearing house funds payable to the
order of the Company, all as set forth in the Purchase Agreement, at the time
set forth in the Purchase Agreement or at such other time not later than seven
full business days thereafter as you and the Company determine, such time being
herein referred to as the “Closing Date.” Except as otherwise
provided in this Agreement, the Company agrees to make available to you for
inspection and packaging at the place set forth in the Purchase Agreement, at
least one full business day prior to the Closing Date, the Purchased Debt
Securities so to be delivered in good delivery form and in such denominations
and registered in such names as you shall have requested, all such requests to
have been made in writing at least three full business days prior to the Closing
Date, or if no such request is made, registered in the names of the several
Purchasers as set forth in Schedule A to
the Purchase Agreement.
If any
Purchase Agreement provides for sales of Purchased Debt Securities pursuant to
delayed delivery contracts, the Company authorizes the Purchasers to solicit
offers to purchase Contract Debt Securities pursuant to delayed delivery
contracts substantially in the form of Schedule I
attached hereto (the “Delayed Delivery Contracts”) with such changes therein as
the Company may approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies, and educational and charitable
institutions. Each Delayed Delivery Contract shall provide for the
purchase and sale of a principal amount of Contract Debt Securities not less
than the amount set forth in the Purchase Agreement and the aggregate principal
amount of all Contract Debt Securities shall not exceed the amount set forth in
the Purchase Agreement. On the Closing Date, the Company will pay you
as compensation, for the accounts of the Purchasers, the compensation set forth
in such Purchase Agreement in respect of the principal amount of Contract Debt
Securities. The Purchasers will not have any responsibility in
respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Debt Securities shall be deducted from the Purchased
Debt Securities to be purchased by the several Purchasers and the aggregate
principal amount of Purchased Debt Securities to be purchased by each Purchaser
shall be reduced pro rata in proportion to the principal amount of
Purchased Debt Securities set forth opposite each Purchaser’s name in such
Purchase Agreement, except to the extent that you determine that such reduction
shall be otherwise allocated and so advise the Company.
3. Representations and
Warranties of the Company. The Company represents and
warrants, as of the date hereof, as of the Applicable Time and as of the Closing
Date (in each case, unless otherwise indicated below with respect to any
representation or warranty), to each Purchaser that:
(a) The
Registration Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any Base Prospectus,
any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose or pursuant to
Section 8A of the Act against the Company or related to the offering of the
Purchased Debt Securities contemplated hereby have been instituted or, to the
Company’s knowledge, are contemplated by the Commission.
(b) The
Registration Statement complied at the Effective Time, complies as of the date
hereof and will comply at the Closing Date, in all material respects, with the
requirements of the Act and the Trust Indenture Act of 1939, as amended (“Trust
Indenture Act”); the conditions to the use of Form S-3 in connection with
the offering and sale of the Purchased Debt Securities as contemplated hereby
have been satisfied; as of the eligibility determination date applicable
to
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the
Registration Statement (and any amendment thereof) and the offering contemplated
hereby, the Company is not an “ineligible issuer” (as defined in Rule 405 of the
rules and regulations under the Act (the “Rules and Regulations”)) at any such
date; the Registration Statement did not, as of the Effective Time, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
each Pre-Pricing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects with
the requirements of the Act; and, at the time such Pre-Pricing Prospectus was
filed with the Commission, as of the Applicable Time and at the Closing Date,
such Pre-Pricing Prospectus, as amended or supplemented through the Applicable
Time, together with the Permitted Free Writing Prospectuses, if any (considered
both with and without any “road show”), did not or will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; each Base Prospectus, as of its date and the
date it was filed with the Commission, complied, in all material respects, with
the requirements of the Act, and did not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; each of the Prospectus Supplement and the Prospectus, as
of the date that it is filed with the Commission, the date of the Prospectus
Supplement, the Closing Date complied, or will comply, in all material respects,
with the requirements of the Act (including, without limitation, Section 10(a)
of the Act) and did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided,
however, that the
Company makes no representation or warranty in this Section 3(b) with respect to
(i) any statement contained in the Registration Statement, any Pre-Pricing
Prospectus, the Prospectus, any Prospectus Supplement or any Permitted Free
Writing Prospectus in reliance upon and in conformity with information furnished
in writing by or on behalf of a Purchaser to the Company expressly for use in
the Registration Statement, such Pre-Pricing Prospectus, the Prospectus, any
Prospectus Supplement or such Permitted Free Writing Prospectus and (ii) that
part of the Registration Statement that constitutes the Forms T-1; each
Incorporated Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable, complied in all
material respects with the requirements of the Exchange Act and did not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The
General Use Disclosure Package, at the Applicable Time, did not contain any
untrue statement of material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(d) The
Company has an authorized capitalization as set forth in the Registration
Statement, the General Use Disclosure Package and the Prospectus. All
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, and are fully paid and
non-assessable.
(e) 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 full corporate power
and authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, the General Use Disclosure Package
and the Prospectus.
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(f) The
Empire District Gas Company (“Empire Gas”) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Kansas, with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement,
the General Use Disclosure Package and the Prospectus. Other than
Empire Gas, the Company has no “significant subsidiary,” as such term is defined
in Rule 405 of the Rules and Regulations.
(g) The
Company is duly qualified to do business as a foreign corporation and in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its businesses requires such qualification, except where the
failure to so qualify would not reasonably be expected to have a material
adverse effect on the business, properties, financial condition or results of
operation of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(h) Empire
Gas is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its properties
or the conduct of its businesses requires such qualification, except where the
failure to so qualify would not reasonably be expected to have a Material
Adverse Effect.
(i) Each of
the Company and Empire Gas (1) is not in violation of its charter or
by-laws, (2) is not in default in any respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject and (3) is not in violation in any respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject and has not failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the
conduct of its business, except, in the case of clause (2) or (3) above,
for any such default, violation or failure that would not reasonably be expected
to result in a Material Adverse Effect.
(j) The
execution, delivery and performance of this Agreement and the issuance of the
Purchased Debt Securities and consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of time, or
both would result in any breach of, or constitute a default under), (1) any
provisions of the charter or by-laws of the Company or Empire Gas, or (2) under
any provision of any license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or Empire Gas is a party or
by which it or its respective properties may be bound or affected, or (3) under
any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or Empire Gas, except, in the case
of clause (2) above, for any such conflict, breach or default which would not
reasonably be expected to result in a Material Adverse Effect.
(k) The
Indenture has been duly authorized by the Company; the Indenture has been duly
executed and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’
-5-
rights
generally and general principles of equity. The Indenture has been
duly qualified under the Trust Indenture Act.
(l) The
Purchased Debt Securities have been duly authorized by the Company and, at the
Closing Date, will have been duly executed by the Company; and, when the
Purchased Debt Securities have been (A) authenticated and delivered by the
Trustee under the Indenture and (B) issued and delivered by the Company against
payment therefor in accordance with this Agreement, the Purchased Debt
Securities will constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and general principles of
equity.
(m) This
Agreement has been duly authorized, executed and delivered by the
Company.
(n) The
Purchased Debt Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Registration Statement, the Disclosure
Package and the Prospectus.
(o) The
Company has obtained or made all approvals, authorizations, consents or orders
of or filings with any national, state or local governmental or regulatory
commission, board, body, authority or agency required in connection with the
issuance and sale of the Purchased Debt Securities or the consummation by the
Company of the transactions as contemplated hereby other than any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Purchased Debt Securities are being offered by the
Purchasers.
(p) There are
no actions, suits, claims, investigations or proceedings pending or threatened
to which the Company or Empire Gas or any of their officers is a party or of
which any of their properties is subject, at law, 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.
(q) The
audited financial statements incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus present fairly in all
material respects the consolidated financial position of the Company as of the
dates indicated and the consolidated results of operations and cash flows of the
Company for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved, except as otherwise set forth
therein. [The interim unaudited financial statements incorporated by
reference in the Registration Statement, the Disclosure Package and the
Prospectus present fairly in all material respects the consolidated financial
position of the Company as of the dates indicated and the consolidated results
of operations and cash flows of the Company for the periods specified subject to
year-end adjustments; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
during the periods involved, except as otherwise set forth
therein.] All disclosures contained in the Registration Statement,
the Disclosure Package or the Prospectus regarding “non-GAAP financial measures”
(as such term is
-6-
defined
by the Rules and Regulations) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Act, to the extent applicable.
(r) The
accountants who certified the audited financial statements of the Company and
supporting schedules and notes thereto incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus are an
independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable rules and regulations thereunder
adopted by the Commission and the Public Company Accounting Oversight Board (the
“PCAOB”).
(s) The
Company is not, and, as of the Closing Date after giving effect to the
application of the net proceeds as described in the Prospectus, will not be, an
“investment company” as defined in the Investment Company Act of 1940, as
amended.
(t) The
Company, and its directors and officers in their capacity as such, have each
complied, and currently are in compliance, in all material respects with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations of the Commission and
the NYSE issued or adopted in connection therewith.
(u) There has
been no storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or, to the
actual knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the Company or
its subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
reasonably be expected to have, singularly or in the aggregate with all such
violations and remedial actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or release
of any kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries have actual knowledge,
except for any such spill, discharge, leak, emission, injection, escape, dumping
or release which would not reasonably be expected to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect; and the terms
“hazardous wastes,” “toxic wastes,” “hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection.
(v) (A) The
Company has devised and established and maintains the following, among other,
internal controls (without duplication):
(1) a system
of “internal accounting controls” as contemplated in Section 13(b)(2)(B) of the
Exchange Act;
(2) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under the
Exchange Act; and
-7-
(3) “internal
control over financial reporting” (as such term is defined in Rule 13a-15(f)
under the Exchange Act) (the internal controls referred to in clauses (1) and
(2) above and this clause (3) being hereinafter called, collectively, the
“Internal Controls”).
(B) The
Internal Controls are evaluated by the Company’s senior management periodically
as appropriate and, in any event, as required by law.
(C) The
Internal Controls are, individually and in the aggregate, effective in all
material respects to perform the functions for which they were
established.
(D) Based
on the most recent evaluations of the Company’s internal control over financial
reporting, (1) there are no material weaknesses in the design or operation
of the Company’s internal control over financial reporting, whether considered
individually or collectively, and (2) all significant deficiencies, if any, in
the design or operation of the Company’s internal control over financial
reporting have been identified and reported to the Company’s independent
auditors and the audit committee of the Company’s board of
directors.
(w) Subsequent
to the respective dates as of which information is given in the General Use
Disclosure Package and the Prospectus, there has been no material adverse
change, or any development that is reasonably likely to result in a material
adverse change, in the business, properties, financial condition or results of
operations of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business (any such change or development, a
“Material Adverse Change”).
(x) All
material tax returns required to be filed by the Company have been filed in all
jurisdictions where such returns are required to be filed, except where valid
extensions have been obtained; and all taxes, including withholding, value added
and franchise taxes, penalties and interest, assessments, fees and other charges
that are due and payable have been paid (or, with respect to those based on good
faith estimates, have been paid to the extent of such estimates), other than
those being contested in good faith and for which reserves have been provided in
accordance with generally accepted accounting principles or those currently
payable without penalty or interest and except where the failure to make such
required filings or payments could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the
knowledge of the Company, there are no material proposed additional tax
assessments against the Company or its assets or property.
(y) The
Company maintains insurance covering its properties, operations, personnel and
businesses as the Company deems adequate; such insurance insures against such
losses and risks to an extent which is adequate, in the good faith judgment of
management, to protect the Company and its business.
(z) Any
statistical and market-related data included in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent
required.
-8-
(aa) Neither
the Company nor any of its subsidiaries nor, to the Company’s knowledge after
due inquiry, any employee or agent of the Company or its subsidiaries has made
any payment of funds of the Company or its subsidiaries or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement, the General Use Disclosure Package or the
Prospectus.
(bb) All
contracts or documents that are required to be described in the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described and filed as
required.
4. Agreements of the
Company. The Company agrees with the several Purchasers
that:
(a) The
Company will advise you promptly of any proposal to amend or supplement the
Registration Statement, any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus with respect to any Purchased Debt Securities,
and will furnish you a copy thereof prior to the filing thereof with the
Commission.
(b) The
Company will furnish to you copies of the registration statement relating to the
Debt Securities as originally filed and all amendments thereto (at least one of
which will be signed and will include all exhibits except those incorporated by
reference to previous filings with the Commission), each related Pre-Pricing
Prospectus, Permitted Free Writing Prospectus, Prospectus, and all amendments
and supplements to such documents (except amendments to exhibits and supplements
relating to Debt Securities that are not Purchased Debt Securities), in each
case as soon as available and in such quantities as you reasonably request for
the purposes contemplated by the Act.
(c) If at any
time prior to the filing of the Prospectus, with respect to each Pre-Pricing
Prospectus or, thereafter, with respect to the Prospectus, when a prospectus
relating to the Purchased Debt Securities is required to be conveyed under the
Act or the Rules and Regulations, any event occurs as a result of which such
Pre-Pricing Prospectus or the Prospectus, as applicable, as then amended or
supplemented would include any untrue statement of a material fact, or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which made, not misleading, or if it is necessary at any
time to amend or supplement such Pre-Pricing Prospectus or the Prospectus, as
applicable, to comply with the Act or the Rules and Regulations, the Company
will promptly notify the Purchasers and promptly prepare and file with the
Commission an amendment or supplement to the Registration Statement or any
appropriate filing pursuant to Section 13 or 14 of the Exchange Act which
will correct such statement or omission or an amendment which will effect such
compliance, and convey in connection therewith, such Pre-Pricing Prospectus or
Prospectus or amendments or supplements to the Purchasers in such quantity as
may be necessary to permit compliance with the requirements of the Act and the
Rules and Regulations; provided that the Company shall be so obligated only so
long as the Company is notified of unsold allotments (failure by the Purchasers
to so notify the Company cancels the Company’s obligation under this
Section 4(c)); provided further, that any such Pre-Pricing Prospectus or
Prospectus or amendment or supplement required later than nine months from the
date hereof shall be furnished at the Purchasers’ sole expense.
-9-
(d) The
Company will cooperate with the Purchasers in taking such action as may be
necessary to qualify the Purchased Debt Securities for offering and sale under
the securities laws of any state or jurisdiction of the United States as the
Purchasers may reasonably request and will use its best efforts to continue such
qualification in effect so long as required for the distribution of the
Purchased Debt Securities; provided, however, that the Company shall not be
required to qualify as a foreign corporation, or to file a general consent to
service of process, in any such state or jurisdiction or to comply with any
other requirement deemed by the Company to be unduly burdensome.
(e) The
Company will make generally available to its security holders as soon as
practicable an earning statement (as contemplated by Rule 158 under the Act)
covering a period of twelve months after the effective date of the Registration
Statement.
(f) For a
period of one year, the Company will furnish to you copies of any report or
definitive proxy statement which the Company shall file with the Commission
under the Exchange Act, and copies of all reports and communications which shall
be sent to stockholders generally, at or about the time such reports and other
information are first furnished to stockholders generally. For
purposes of this clause (f), any information filed by the Company on the
Commission’s ▇▇▇▇▇ system will be deemed furnished to you in satisfaction of
this clause (f).
(g) The
Company will apply the net proceeds from the offering of the Purchased Debt
Securities as set forth under the caption “Use of proceeds” in the Prospectus
Supplement.
(h) If a
public offering of the Purchased Debt Securities is to be made, the Company will
not offer or sell any of its other debt securities which are substantially
similar to the Purchased Debt Securities prior to ten business days after the
Closing Date without the consent of the Purchasers.
(i) The
Company will advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Base Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus,
or the effectiveness of the Registration Statement, of the suspension of the
qualification of the Purchased Debt Securities for offering or sale in any
jurisdiction or of the initiation or threatening of any proceeding for any such
purpose; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Base Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus, or the effectiveness of the Registration Statement, or
suspending any such qualification, promptly to use its reasonable best efforts
to obtain the prompt withdrawal of such order.
(j) The
Company represents that it has not made, and agrees that, unless it obtains the
prior written consent of [ ] on behalf of the Purchasers, it will not make, any
offer relating to the Purchased Debt Securities that would constitute an “issuer
free writing prospectus” (as defined in Rule 433 of the Act) or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the
Act) required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Act; provided that the prior written consent of [
] on behalf of the Purchasers shall be deemed to have been given in respect of
the Permitted Free Writing Prospectuses. The Company agrees that (i)
it has treated and will treat, as the case may
-10-
be, each
Permitted Free Writing Prospectus as an issuer free writing prospectus, and (ii)
has complied and will comply, as the case may be, with the requirements of Rules
164 and 433 of the Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
5. Expenses. The
Company and the Purchasers agree as follows:
(a) The
Company, whether or not the transactions contemplated hereunder are consummated,
will (except as provided in Section 4(c) hereof) pay all costs and expenses
incident to the performance of its obligations hereunder, including, without
limitation, all costs and expenses in connection with: (i) the
preparation and filing of the Registration Statement and each Pre-Pricing
Prospectus, Prospectus Supplement, Prospectus and Permitted Free Writing
Prospectus and Indenture and any supplements or amendments thereto;
(ii) the preparation, issuance and delivery to the Purchasers of the
Purchased Debt Securities and the preparation, issuance and delivery to the
purchasers thereof of the Contract Debt Securities; (iii) the reproduction
or printing and mailing in reasonable quantities of the Registration Statement,
the Securities Resolution, each Pre-Pricing Prospectus, the Prospectus, each
Permitted Free Writing Prospectus, if any, and any amendments or supplements
thereto, this Agreement and any Blue Sky memoranda delivered to the Purchasers;
(iv) reasonable filing fees and expenses (including legal fees and
disbursements, not in excess of $5,000) incurred in connection with the
qualification of the Purchased Debt Securities under the Blue Sky or securities
laws of the various states, and the preparation of Blue Sky memoranda and for
the offering; (v) the fees and expenses of the accountants and the counsel
for the Company; (vi) the fees of the Trustee and any agent of the Trustee
(including legal fees and disbursements, if any, of counsel to the Trustee);
(vii) any fees payable to investment rating agencies with respect to the
Purchased Debt Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
(b) The
Purchasers will pay (i) the fees and disbursements of their respective
counsel, except as set forth in Section 5(a) and in Section 9(b) and
(ii) their own out-of-pocket expenditures.
6. Conditions of the
Purchasers’ Obligations. The obligations of the Purchasers to
purchase and pay for the Purchased 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 Company herein contained as of the
date hereof and the Closing Date, to the performance by the Company of 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP,
Kansas counsel for the Company, 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;
-11-
(ii) The
Purchased Debt Securities have been duly authorized, executed, issued and
delivered by the Company and 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;
(iii) 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 and the 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 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
of Kansas is legally required for the issuance, sale and delivery of the
Purchased Debt Securities or the execution, delivery and performance by the
Company of the Securities 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 Purchased Debt Securities nor the
execution, delivery and performance by the Company of this Agreement, 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 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 Spencer, Scott, &
▇▇▇▇▇, P.C., Missouri counsel for the Company, 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
-12-
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 Purchased Debt Securities nor the
execution, delivery and performance by the Company of this Agreement, 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 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;
(v) 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; 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
-13-
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, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the
incorporation of the Company and all matters governed by Kansas law, upon the
opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP referred to in paragraph (b) above and, as
to all matters covered thereby, upon the opinion of Brydon,
▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph
(d) below.
(d) You shall
have received an opinion, dated the Closing Date, of Brydon, ▇▇▇▇▇▇▇▇▇▇ &
England, Professional Corporation, special regulatory counsel for the Company,
to the effect that no approval, authorization, consent or other order of any
public board or body in the States of Missouri, Oklahoma or Arkansas is legally
required for the issuance, sale and delivery of the Purchased Debt Securities or
the execution, delivery and performance by the Company of the Securities
Resolution, the Purchased Debt Securities, this Agreement or 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Company, to the effect that:
(i) The
Purchased Debt Securities have been duly authorized, executed, issued and
delivered by the Company and 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) 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 and the Purchased 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 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);
-14-
(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 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 (including the rules and
regulations) and the applicable Rules and Regulations; and
(vi) This
Agreement and any Delayed Delivery Contracts have been duly authorized, 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, Missouri, Arkansas and Oklahoma, and covered by their
respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP; ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above.
In
addition, such counsel shall state that: “We have participated in
conferences with officers and other representatives of the Company,
representatives of the independent registered public accounting firm for the
Company, 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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Purchasers, with respect to such matters as the Purchasers may
reasonably request and in form and substance satisfactory to the
Purchasers.
-15-
(g) You shall
have received from PricewaterhouseCoopers LLP letters dated, respectively, the
date of this Agreement and the Closing Date and addressed to the Purchasers in
form and substance reasonably acceptable to
[ ].
(h) On the
Closing Date, subsequent to the respective dates as of which information is
given in the General Use Disclosure Package and the Prospectus, there shall have
been no Material Adverse Change and there shall have been furnished to 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 except as
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) the
representations and warranties of the Company contained in Section 3 of
this Agreement are correct and the Company has complied with all the agreements
and satisfied all the conditions to be performed or satisfied on its part at or
prior to the Closing Date; and (iii) 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, to the knowledge of
the signer thereof, are contemplated under the Act.
(i) The
representations and warranties of the Company herein shall be true and correct
as of the Closing Date and all agreements herein contained to be performed on
the part of the Company at or prior to the Closing Date shall have been so
performed.
(j) You shall
have been furnished such additional certificates and other evidence as you or
your counsel may reasonably request showing fulfillment of the conditions
contained in this Section 6 and existence of the facts to which the
representations and warranties contained in Section 3 hereof
relate.
(k) The
Company shall have accepted Delayed Delivery Contracts in any case where sales
of Contract Debt Securities arranged by the Purchasers have been approved by the
Company.
7. Indemnification.
(a) The
Company will indemnify and hold harmless each Purchaser and each person, if any,
who controls any Purchaser within the meaning of the Act, each of the
Purchasers’ directors and officers, and the successors and assigns of all of the
foregoing persons, against the losses, claims, damages or liabilities, joint or
several, to which such Purchaser or such controlling person may become subject,
under the Act, the Exchange Act, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Pre-Pricing
Prospectus, any issuer free writing prospectus (as defined in Rule 433 under the
Act), the Prospectus, or any amendment or supplement to any thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse such Purchaser, and each such
controlling person for any legal or other expenses reasonably incurred by such
Purchaser or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or
-16-
liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by any
Purchaser specifically for use therein. The indemnification
obligation contained in this Section 7 will be in addition to any liability
which the Company may otherwise have.
(b) Each
Purchaser, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities to
which the Company or any such director, officer or controlling person may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or action in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Pre-Pricing Prospectus, any Permitted Free
Writing Prospectus, the Prospectus or any amendment or supplement to any
thereof, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Purchaser specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. The indemnification obligation contained in this
Section 7 will be in addition to any liability which the Purchasers may
otherwise have.
In addition to any other information
the Purchasers may furnish, the Purchasers hereby furnish to the Company
specifically for use in the Prospectus the information with respect to the
offering of the Purchased Debt Securities and the Purchasers set forth in
[ ] on the
cover page of the Prospectus Supplement and in
[ ] under
the heading “Underwriting”.3
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this
Section 7. In case any action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel selected by the indemnifying party
and acceptable to the indemnified party (the indemnified party shall not
unreasonably reject such counsel), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The
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indemnified
party shall have the right to employ its counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party has
been authorized by the indemnifying party, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense of
such action (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying party shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of one counsel representing all indemnified parties shall be at the expense of
the indemnifying party. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its
consent. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include an admission of
fault, culpability or a failure to act, by or on behalf of such indemnified
party, or (ii) be liable for any settlement of any action or claim effected
without its written consent (which consent shall not be unreasonably withheld),
but if settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment in accordance with the other
provisions of this Section 7.
8. Contribution. If
recovery is not available under the foregoing indemnification provisions of
Section 7 of this Agreement, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Act. In determining the
amount of contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the offering of
the Purchased Debt Securities (taking into account the portion of the proceeds
of the offering realized by each), the parties’ relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The
Company and the Purchasers agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation (even if
the Purchasers were treated as one entity for such purpose). No
Purchaser or any person controlling such Purchaser shall be obligated to make
contribution hereunder which in the aggregate exceeds the total public offering
price of the Purchased Debt Securities purchased by such Purchaser and any
Contract Debt Securities, less the aggregate amount of any damages which such
Purchaser and its controlling persons have otherwise been required to pay in
respect of the same claim or any substantially similar claim.
9. Termination.
(a) This
Agreement may be terminated at any time on or prior to the Closing Date by the
Purchasers, by written notice to the Company, if (i) a Material Adverse Change
has occurred since the respective dates as of which information is given in the
General Use Disclosure Package and the Prospectus, (ii) trading in securities on
the NYSE has been suspended or limited or minimum prices having been established
on such Exchange or a material disruption has occurred
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in
commercial banking, securities settlement or clearance services, (iii) a
suspension or material limitation in trading in the Company’s securities on the
NYSE has been imposed, (iv) a banking moratorium having been declared by the
United States, or by New York or Missouri state authorities, (v) (A) an outbreak
or substantial escalation of major hostilities between the United States and any
foreign power, or any other new insurrection or armed conflict involving the
United States having occurred, or (B) any material adverse change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in subclause (A) or (B) above in this clause
(v) in the Purchasers’ judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Purchased Debt Securities on the
terms and in the manner contemplated in the Registration Statement, the General
Use Disclosure Package and the Prospectus, or (vi) since the time of execution
of this Agreement, there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of (A) any intended or potential
downgrading or (B) any watch, review or possible change that does not indicate
an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the
Act.
(b) If the
sale to the Purchasers of the Purchased Debt Securities, as contemplated by this
Agreement, is not carried out by the Purchasers for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 5(a), 7 and 8 hereof), and the Purchasers shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Sections 7 and 8, and the last sentence of Section
11 hereof) or to one another hereunder.
10. Survival of Indemnities,
Representations and Warranties. The respective indemnities and
agreements for contribution of the Company and the Purchasers and the respective
representations and warranties of the Company and the Purchasers set forth in
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or the Purchasers or any of
their respective officers, directors, partners or any controlling person, and
will survive delivery of and payment for the Purchased Debt Securities or
termination of this Agreement.
11. Default of
Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Purchased Debt Securities hereunder and the aggregate
principal amount of Purchased Debt Securities which such defaulting Purchaser or
Purchasers agreed but failed to purchase is 10% of the principal amount of
Purchased Debt Securities or less, you may make arrangements satisfactory to the
Company for the purchase of such Purchased Debt Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Purchased
Debt Securities which such defaulting Purchasers agreed but failed to
purchase. If any Purchaser or Purchasers so default and the aggregate
principal amount of Purchased Debt Securities with respect to which such default
or defaults occur is more than the above percentage and arrangements
satisfactory to you and the Company for the purchase of such Purchased Debt
Securities by other persons are not made within thirty-six hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in
Section 9. In the event that any Purchaser or Purchasers default
in their obligation to purchase Purchased Debt Securities hereunder, the Company
may, by prompt written notice to the non-defaulting Purchasers, postpone the
Closing Date for a period of not more than seven full business days in order to
effect whatever changes
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may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents, and the Company will promptly file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term “Purchaser”
includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from
liability for its default.
12. Parties in
Interest. This Agreement shall inure to the benefit of the
Company, the Purchasers, the officers, directors and partners of such parties,
each controlling person referred to in Section 7 hereof, and their
respective successors. Nothing in this Agreement is intended or shall
be construed to give to any other person, firm or corporation (including,
without limitation, any purchaser of the Purchased Debt Securities from a
Purchaser or any subsequent holder thereof or any purchaser of any Contract Debt
Securities or any subsequent holder thereof) any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained.
The term
“successor” as used in this Agreement shall not include any purchaser, as such
purchaser, of any Purchased Debt Securities from any Purchaser or any subsequent
holder thereof or any purchaser, as such purchaser, of any Contract Debt
Securities or any subsequent holder thereof.
This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof, and supersedes any agreement previously entered
into.
-20-
13. Notices. All
communications, terminations and notices hereunder shall be in writing and, if
sent to any Purchaser, shall be mailed, delivered or telecopied and confirmed to
it by letter to the address set forth for such Purchaser in Schedule A to
the Purchase Agreement (or such other place as the Purchaser may specify in
writing); if sent to the Company shall be mailed, delivered or telecopied and
confirmed to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇ (Attn: Vice President - Finance) (or
such other place as the Company may specify in writing).
14. Counterparts. This
Agreement may be executed in any number of counterparts which, taken together,
shall constitute one and the same instrument.
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. Jurisdiction; Waiver of Jury
Trial. Except as set forth below, no claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in anyway relating to
this Agreement (“Claim”) may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against any Purchaser
or any indemnified party. Each Purchaser and the Company (on its
behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) each waive all right to trial by jury in any
action, proceeding or counterclaim (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
17. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Purchased Debt Securities pursuant to this Agreement,
including the determination of the terms of the Purchased Debt Securities and
any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Purchasers, on the other
hand, (b) in connection with the offering contemplated hereby and the process
leading to such transaction each Purchaser is and has been acting solely as a
principal and is not the agent or fiduciary of the Company, or its stockholders,
creditors, employees or any other party, (c) no Purchaser has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with
respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Purchaser has advised or is currently advising the
Company on other matters) and no Purchaser has any obligation to the Company
with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (d) the Purchasers and their respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (e) the Purchasers have not
provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
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Schedule
I
DELAYED
DELIVERY CONTRACT
Dated:
THE
EMPIRE DISTRICT ELECTRIC COMPANY
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Ladies
and Gentlemen:
The
undersigned hereby agrees to purchase from The Empire District Electric Company
(the “Company”), and the Company agrees to sell to the undersigned,
$___________________
principal
amount of the Company’s [state title of issue] (the “Debt Securities”) offered
by the Company’s Prospectus dated ________ and a Prospectus Supplement dated
________, receipt of copies of which is hereby acknowledged, at a purchase price
of ___% of the principal amount thereof plus accrued interest and on the further
terms and conditions set forth in this contract.
The
undersigned agrees to purchase such Debt Securities in the principal amounts and
on the delivery dates (the “Delivery Dates”) set forth below:
|
Delivery
Date
|
Principal
Amount
|
Plus
Accrued
Interest
From:
|
||
|
________________
|
$_______________
|
________________
|
||
|
________________
|
$_______________
|
________________
|
||
|
________________
|
$_______________
|
________________
|
Payment
for the Debt Securities which the undersigned has agreed to purchase on each
Delivery Date shall be made to the Company or its order by certified
or bank cashier’s check in [same day or New York Clearing House funds] at
___________ (or at such other place as the undersigned and the Company shall
agree) at [ ] [A.M./P.M.], New York City Time, on such
Delivery Date upon issuance and delivery to the undersigned of the Debt
Securities to be purchased by the undersigned on such Delivery Date in such
authorized denominations and, unless otherwise provided herein, registered in
such names as the undersigned may designate by written or telegraphic
communications addressed to the Company not less than five full business days
prior to such Delivery Date.
The
obligation of the Company to sell and deliver, and of the undersigned to take
delivery of and make payment for, Debt Securities on each Delivery Date shall be
subject to the conditions that (1) the purchase of Debt Securities to be
made by the undersigned shall not at the time of delivery be
prohibited
under the
laws of the jurisdiction to which the undersigned is subject, (2) the sale of
the Debt Securities by the Company pursuant to this contract shall not at the
time of delivery be prohibited under the laws of any jurisdiction to which the
Company is subject and (3) the Company shall have sold and delivered to the
Purchasers such principal amount of the Purchased Debt Securities as is to be
sold and delivered to them. In the event that Debt Securities are not sold to
the undersigned because one of the foregoing conditions is not met, the Company
shall not be liable to the undersigned for damages arising out of the
transactions covered by this contract.
Promptly
after completion of the sale and delivery to the Purchasers, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by copies of the opinions of counsel for the Company
delivered to the Purchasers.
Failure
to take delivery of and make payment for Debt Securities by any purchaser under
any other Delayed Delivery Contract shall not relieve the undersigned of its
obligations under this contract.
The
undersigned represents and warrants that (a) as of the date of this contract,
the undersigned is not prohibited under the laws of the jurisdictions to which
the undersigned is subject from purchasing the Debt Securities hereby agreed to
be purchased and (b) the undersigned does not contemplate selling the Debt
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefore.
This
contract will inure to the benefit of and be binding upon the parties hereto and
their respective successors, but will not be assignable by either party hereto
without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New
York. This contract may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
It is
understood that the acceptance of any Delayed Delivery Contract is in the
Company’s sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so signed.
-2-
|
Yours
very truly,
|
| __________________________________________ |
|
By:
_______________________________________
|
| __________________________________________ |
| __________________________________________ |
|
Address
|
Accepted,
as of the date first above written
The
Empire District Electric Company
By: ______________________________
-3-
PURCHASER
— PLEASE COMPLETE AT TIME OF SIGNING
The name
and telephone and department of the representative of the Purchaser with whom
details of delivery on the Delivery Date may be discussed are as
follows:
(Please
print.)
|
Name
|
Telephone
No.
(Including Area
Code)
|
Department
|
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