Kansas City Power & Light Company 5.85% Notes due 2017 UNDERWRITING AGREEMENT dated May 30, 2007 Banc of America Securities LLC Wachovia Capital Markets, LLC
Exhibit
1.1
Kansas
City Power & Light Company
$250,000,000
5.85%
Notes due 2017
dated
May
30, ▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Securities LLC
Wachovia
Capital Markets, LLC
May
30,
▇▇▇▇
▇▇▇▇
▇▇
▇▇▇▇▇▇▇ SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
As
Representatives of the several Underwriters
c/o
BANC
OF AMERICA SECURITIES LLC
Hearst
Tower
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▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
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and
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Ladies
and Gentlemen:
Kansas
City Power & Light Company, a Missouri corporation (the
“Company”), proposes to issue and sell to the several
underwriters named in Schedule A (the “Underwriters”), acting
severally and not jointly, the respective amounts set forth in such Schedule
A
of $250,000,000 aggregate principal amount of the Company’s 5.85% Notes due 2017
(the “Senior Notes”). Banc of America Securities LLC
and Wachovia Capital Markets, LLC have agreed to act as representatives of
the
several Underwriters (in such capacity, the “Representatives”)
in connection with the offering and sale of the Senior Notes.
The
Senior Notes will be issued pursuant to a senior indenture (the “Base
Indenture”), dated as of May 1, 2007 between the Company and The Bank
of New York Trust Company, N.A. (successor to The Bank of New York) as trustee
(the “Trustee”). Certain terms of the Senior Notes
will be established pursuant to a supplemental indenture (the
“Supplemental Indenture”) in accordance with Article Thirteen
of the Base Indenture (together with the Base Indenture, the
“Indenture”). The Senior Notes will be issued in
book-entry form in the name of Cede & Co., as nominee of The Depository
Trust Company (the “Depositary”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as defined in
Section 2(b) below) (the “DTC Agreement”), among the Company,
the Trustee and the Depositary.
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) a registration statement on Form S-3 (File No.
333-108215), to be used in connection with the public offering and sale of
debt
securities, including the Senior Notes, of the Company. Such
registration statement, including the financial statements, exhibits and
schedules
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thereto,
in the form in which it became effective under the Securities Act of 1933,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the
“Securities Act”), including any required information deemed to
be a part of the registration statement at the time of effectiveness pursuant
to
Rule 430B under the Securities Act, is called the “Registration
Statement”. The term “Base Prospectus”
shall mean the base prospectus dated May 30, 2007
relating to the Senior
Notes. The term “Preliminary Prospectus” shall mean
any preliminary prospectus supplement relating to the Senior Notes, together
with the Base Prospectus, that is first filed with the Commission pursuant
to
Rule 424(b). The term “Prospectus” shall mean
the final prospectus supplement relating to the Senior Notes, together with
the
Base Prospectus, that is first filed pursuant to Rule 424(b) after the date
and
time that this Agreement is executed (the “Execution Time”) and
delivered by the parties hereto. Any reference herein to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be
deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 1:00 p.m. (Eastern time) on May 30, 2007 (the
“Initial Sale Time”). All references in this
Agreement to the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System
(“▇▇▇▇▇”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” (or other references of
like import) in the Registration Statement, the Prospectus or any Preliminary
Prospectus shall be deemed to mean and include all such financial statements
and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or any Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all
references in this Agreement to amendments or supplements to the Registration
Statement, the Prospectus or any Preliminary Prospectus shall be deemed to
include the filing of any document under the Securities Exchange Act of 1934,
as
amended, and the rules and regulations promulgated thereunder (collectively,
the
“Exchange Act”), which is or is deemed to be incorporated by
reference in the Registration Statement, the Prospectus or any Preliminary
Prospectus, as the case may be, after the Initial Sale Time.
The
Company hereby confirms its agreements with the Underwriters as
follows:
SECTION
1. Representations and Warranties of the
Company.
The
Company hereby represents, warrants and covenants to each Underwriter as of
the
date hereof, as of the Initial Sale Time and as of the Closing Date (as defined
herein) (in each case, a
“RepresentationDate”), as
follows:
a) Compliance
with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities Act and no
stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
or threatened by the Commission, and any request on the part of the
Commission
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for
additional information has been complied with. In addition, the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the
“Trust Indenture Act”).
At
the
respective times the Registration Statement and any post-effective amendments
thereto became effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will comply in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act, and (ii) did not and will not contain an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Date, included or
will include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the representations and
warranties in this subsection shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility on Form
T-1 of the Trustee under the Trust Indenture Act or (ii) statements in or
omissions from the Registration Statement or any post-effective amendment or
the
Prospectus or any amendments or supplements thereto made in reliance upon and
in
conformity with information furnished to the Company in writing by any of the
Underwriters through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof.
Each
Preliminary Prospectus and the
Prospectus, at the time each was filed with the Commission, complied in all
material respects with the Securities Act, and each Preliminary Prospectus
and
the Prospectus delivered to the Underwriters for use in connection with the
offering of the Senior Notes will, at the time of such delivery, be identical
to
any electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
b) Disclosure
Package. The term “Disclosure Package” shall
mean (i) the Preliminary Prospectus dated May 30, 2007, (ii) each issuer free
writing prospectus as defined in Rule 433 of the Securities Act, if any,
identified in Annex I hereto (each, an “Issuer Free Writing
Prospectus”) and (iii) any other free writing prospectus that the
parties hereto shall hereafter expressly agree in writing to treat as part
of
the Disclosure Package. At the Initial Sale Time, the Disclosure
Package did not include any untrue statement of a 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. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 6(b)
hereof.
c) Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the
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Prospectus
(i) at the time they were or hereafter are filed with the Commission,
complied or will comply in all material respects with the requirements of the
Exchange Act and (ii) when read together with the other information in the
Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the
Closing Date, 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.
d) Not
an Ineligible Issuer. (i) At the earliest time after the filing
of the Registration Statement that the Company or another offering participant
makes a bona fide offer (within the meaning of Rule 164(h)(2) of the
Securities Act) of the Senior Notes and (ii) as of the Execution Time (with
such
date being used as the determination date for purposes of this clause
(ii)), the Company was not or is not an Ineligible Issuer (as defined
in Rule 405 of the Securities Act), without taking account of any determination
by the Commission pursuant to Rule 405 of the Securities Act that it is not
necessary that the Company be considered an Ineligible Issuer.
e) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus,
as of its issue date and at all subsequent times through the completion of
the
public offering and sale of Senior Notes or until any earlier date that the
Company notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement, any Preliminary Prospectus or the
Prospectus. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, the Company has promptly notified or will promptly
notify the Representatives and has promptly amended or supplemented or will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences
do
not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein,
it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 6(b)
hereof. No electronic roadshow has been prepared or used by the
Company in connection with the offering of the Senior Notes.
f) No
Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included
in
the offering contemplated by this Agreement, except for such rights as have
been
duly waived.
g) Due
Incorporation and Qualification. The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the
laws of the state of Missouri with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and to enter into and perform its
obligations under this Agreement, the Supplemental Indenture and the Senior
Notes and to perform its obligations under the Indenture; and the Company is
duly qualified as a foreign
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corporation
to transact business and is in good standing in each jurisdiction in which
such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
and
be in good standing would not result in a Material Adverse Change (as defined
herein).
h) Subsidiaries. Each
wholly-owned subsidiary of the Company (each, a “Subsidiary”
and, together, the “Subsidiaries”) has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its
jurisdiction of incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so
to
qualify or to be in good standing would not result in a Material Adverse Change;
except as otherwise disclosed in the Disclosure Package and the Prospectus,
all
of the issued and outstanding shares of capital stock owned directly or
indirectly by the Company of each such Subsidiary have been duly authorized
and
validly issued, are fully paid and non-assessable and are owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and none of the
outstanding shares of capital stock of any Subsidiary was issued in violation
of
the preemptive or similar rights of any securityholder of such
Subsidiary. The Company has no significant subsidiaries, as
“significant subsidiaries” is defined in Rule 405 of Regulation C under the
Securities Act.
i) Capitalization. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the Disclosure Package and the Prospectus in the column entitled “Actual”
under the caption “Capitalization.” The shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares
of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
j) Accountants. The
accountants who issued their reports on the financial statements of the Company
included or incorporated by reference in the Disclosure Package and the
Prospectus are an independent registered public accounting firm within the
meaning of the Securities Act.
k) Financial
Statements. The financial statements and any supporting
schedules of the Company included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus present
fairly, in all material respects, the financial position of the Company as
of
the dates indicated and the results of its operations and cash flows for the
periods specified; except as stated therein, said financial statements have
been
prepared in conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis; and any
supporting schedules included in the Registration Statement present fairly,
in
all material respects, the information required to be stated
therein. The selected financial data and the summary financial
information included or incorporated by reference in the Disclosure Package
and
the Prospectus present fairly, in accordance with GAAP, the information shown
therein and have been compiled on a basis consistent with that of the
audited
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financial
statements included or incorporated by reference in the Registration Statement,
the Disclosure Package and the Prospectus.
l) Authorization
of the Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
m) Authorization
of the Indenture. The Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed and delivered
by
the Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
n) Authorization
of the Senior Notes. The Senior Notes to be purchased by the
Underwriters from the Company are in the form contemplated by the Indenture,
have been duly authorized for issuance and sale pursuant to this Agreement
and
the Indenture and, at the Closing Date, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and
delivered against payment of the purchase price therefor, will constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law) and will be entitled to the
benefits of the Indenture.
o) Description
of the Senior Notes and the Indenture. The Senior Notes and the
Indenture conform in all material respects to the descriptions thereof contained
in the Disclosure Package and the Prospectus.
p) Material
Changes or Material Transactions. Since the respective dates as
of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus, except as may otherwise be stated therein or
contemplated thereby, (a) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
“Material Adverse Change”) and (b) there have been no
transactions entered into by the Company and its subsidiaries considered as
one
enterprise other than those in the ordinary course of business which are
material with respect to the Company and its subsidiaries considered as one
enterprise.
q) No
Defaults. Neither the Company nor any of the Subsidiaries is in
violation of its Articles of Incorporation, charter or
by-laws. Except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change, neither the
Company nor any of the Subsidiaries is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Subsidiaries is a
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party
or
by which it or any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject (each, an
“Agreement or Instrument” and, collectively, the
“Agreements and Instruments”). The execution and
delivery of this Agreement, the Supplemental Indenture and the Senior Notes
and
the consummation of the transactions contemplated herein, therein and in the
Indenture have been duly authorized by all necessary corporate action and do
not
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any
property or assets of the Company or any Subsidiary pursuant to, any material
Agreements and Instruments, nor will such action result in any violation of
the
provisions of the Articles of Incorporation or by-laws, of the Company or any
of
the Subsidiaries or any applicable law, administrative regulation or
administrative or court order or decree.
r) Regulatory
Approvals. The Company has made all necessary filings and
obtained all necessary consents, orders or approvals in connection with the
issuance and sale of the Senior Notes or will have done so by the time the
Senior Notes shall be issued and sold, and no consent, approval, authorization,
order or decree of any other court or governmental agency or body is required
for the consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under state securities
laws.
s) Legal
Proceedings; Contracts. Except as may be set forth, incorporated or deemed
incorporated by reference in the Disclosure Package and the Prospectus, there
is
no action, suit or proceeding before or by any court or governmental agency
or
body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or its subsidiaries which would
reasonably be expected to result in any Material Adverse Change, or might
materially and adversely affect its properties or assets or would reasonably
be
expected to materially and adversely affect the consummation of the transactions
contemplated by this Agreement; and there are no contracts or documents which
are required to be filed as exhibits to the Registration Statement by the
Securities Act which have not been so filed.
t) Franchises. The
Company and the Subsidiaries hold, to the extent required, valid and subsisting
franchises, licenses and permits authorizing them to carry on the regulated
utility businesses in which they are engaged in the territories from which
substantially all of the Company’s consolidated gross operating revenue is
derived, except where the failure to hold such franchises, licenses and permits
would not result in a Material Adverse Change.
u) Environmental
Laws. Except as described, incorporated or deemed incorporated
by reference in the Disclosure Package and the Prospectus, and except as would
not, individually or in the aggregate, reasonably be expected to result in
a
Material Adverse Change, (A) neither the Company nor any of the
Subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances,
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hazardous
substances, petroleum or petroleum products, asbestos-containing materials
or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of the Subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any
of
the Subsidiaries relating to Hazardous Materials or any Environmental
Laws.
v) Investment
Company Act. The Company is not and, upon the issuance and sale
of the Senior Notes as contemplated herein and the application of the net
proceeds thereof as described in the Disclosure Package and the Prospectus,
will
not be, required to register as an “investment company” under the Investment
Company Act of 1940, as amended.
w) ERISA. The
Company and the Subsidiaries are in compliance in all material respects with
all
presently applicable provisions of the Employee Retirement Income Security
Act
of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”); no “reportable event” (as defined in
ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for
which the Company or any of the Subsidiaries would have any material liability;
the Company and the Subsidiaries have not incurred and do not expect to incur
any material liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any “pension plan” or (ii) Section 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
“Code”); and each “pension plan” for which the Company or any
of the Subsidiaries would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
x) Insurance. The
Company and each of the Subsidiaries carry, or are covered by, insurance in
such
amounts and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties.
y) Taxes. The
Company and each of the Subsidiaries has filed all federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, except such as are being contested in good
faith by appropriate proceedings, and no tax deficiency has been determined
adversely to the Company or any of the Subsidiaries which has had, nor does
the
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of the Subsidiaries, would reasonably be expected to
result in, a Material Adverse Change.
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z) Internal
Controls. Each of the Company and the Subsidiaries (A) make
and keep accurate books and records and (B) maintain internal accounting
controls which provide reasonable assurance that (i) transactions are
executed in accordance with management’s authorization, (ii) transactions
are recorded as necessary to permit preparation of its financial statements
and
to maintain accountability for its assets, (iii) access to its assets is
permitted only in accordance with management’s authorization and (iv) the
reported accountability for its assets is compared with existing assets at
reasonable intervals. Except as described in the Disclosure Package
and the Prospectus, since the end of the Company’s most recent audited fiscal
year, there has been (I) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (II) no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
aa) ▇▇▇▇▇▇▇▇-▇▇▇▇▇. The
Company is in compliance, in all material respects, with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402 related to
loans, and the requirement that the Company and its consolidated subsidiaries
maintain the following, among other, controls and procedures:
(i) a
system of “internal accounting controls” as contemplated in
Section 13(b)(2)(B) of the Exchange Act;
(ii) “disclosure
controls and procedures” as such term is defined in Rule 13a-15(e) under
the Exchange Act; and
(iii) “internal
control over financial reporting” as such term is defined in Rule 13a-15(f)
under the Exchange Act.
bb) Pending
Proceedings and Examinations. The Registration Statement is not
the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Securities Act, and the Company is not the subject of a pending
proceeding under Section 8A of the Securities Act in connection with the
offering of the Senior Notes.
cc) Ratings. The
Senior Notes are rated A3 (Stable Outlook) by ▇▇▇▇▇’▇ Investors Services and BBB
(CreditWatch with Negative Implications) by Standard & Poor’s Ratings
Group.
Any
certificate signed by any director or officer of the Company and delivered
to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby on the date of such certificate and, unless subsequently amended
or supplemented, at each Representation Date subsequent thereto.
SECTION
2. Purchase, Sale and Delivery of the Senior
Notes.
a) The
Senior Notes. The Company agrees to issue and sell to
the several Underwriters, severally and not jointly, all of the Senior Notes
upon the terms herein set forth.
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On
the
basis of the representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the Underwriters
agree, severally and not jointly, to purchase from the Company the aggregate
principal amount of Senior Notes set forth opposite their names on Schedule
A,
plus any additional principal amount of Senior Notes which such Underwriter
may
become obligated to purchase pursuant to Section 8 hereof, at a purchase price
of 99.182% of the principal amount of the Senior Notes, payable on the Closing
Date.
b) The
Closing Date. Delivery of certificates for the Senior
Notes in global form to be purchased by the Underwriters and payment therefor
shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (or such other place as may be agreed to by the Company
and the Representatives) at 9:00 a.m., New York City time, on June 4, 2007,
or
such other time and date as the Underwriters and the Company shall mutually
agree (the time and date of such closing are called the “Closing
Date”).
c) Public
Offering of the Senior Notes. The Representatives hereby advise
the Company that the Underwriters intend to offer for sale to the public, as
described in the Disclosure Package and the Prospectus, their respective
portions of the Senior Notes as soon after this Agreement has been executed
as
the Representatives, in their sole judgment, have determined is advisable and
practicable.
d) Payment
for the Senior Notes. Payment for the Senior Notes shall be made
at the Closing Date by wire transfer of immediately available funds to the
order
of the Company.
It
is
understood that the Representatives have been authorized, for their own accounts
and for the accounts of the several Underwriters, to accept delivery of and
receipt for, and make payment of the purchase price for, the Senior Notes that
the Underwriters have agreed to purchase. The Representatives may
(but shall not be obligated to) make payment for any Senior Notes to be
purchased by any Underwriter whose funds shall not have been received by the
Representatives by the Closing Date for the account of such Underwriter, but
any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
e) Delivery
of the Senior Notes. The Company shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several Underwriters
through the facilities of the Depositary certificates for the Senior Notes
at
the Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The certificates for the Senior Notes shall be definitive
global certificates in book entry form for clearance through the
Depositary. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the obligations
of the Underwriters.
SECTION
3. Covenants of the
Company.
The
Company covenants and agrees with each Underwriter as follows:
a) Compliance
with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b)
hereof, will comply with the requirements of Rule 430B under
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the
Securities Act, and will promptly notify the Representatives, and confirm the
notice in writing, of (i) the effectiveness during the Prospectus Delivery
Period (as defined below) of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to any Preliminary
Prospectus or the Prospectus, (ii) the receipt of any comments from the
Commission during the Prospectus Delivery Period, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment
or
supplement to any Preliminary Prospectus or the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, or of the suspension of the qualification of the Senior Notes for
offering or sale in any jurisdiction, or of the initiation or threatening of
any
proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424 and will take such steps
as it deems necessary to ascertain promptly whether any Preliminary Prospectus
and the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file such document. The Company will use every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
b) Representatives’
Review of Proposed Amendments and Supplements. During
the period beginning on the date of this Agreement and ending on the later
of
the Closing Date or such date, as in the opinion of counsel for the
Underwriters, a prospectus relating to the Senior Notes is no longer required
by
law to be delivered in connection with sales of the Senior Notes by an
Underwriter or dealer, including in circumstances where such requirement may
be
satisfied pursuant to Rule 172 under the Securities Act (the “Prospectus
Delivery Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus (including any amendment
or
supplement through incorporation by reference of any report filed under the
Exchange Act), the Company shall furnish, within a reasonable time prior to
filing such amendment or supplement, to the Representatives for review a copy
of
each such proposed amendment or supplement, and the Company shall not file
or
use any such proposed amendment or supplement (except for any amendment or
supplement filed under the Exchange Act after the Closing Date) to which the
Representatives or counsel for the Underwriters shall reasonably
object.
c) Delivery
of Registration Statements. If requested, the Company
will furnish or deliver to the Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement as originally filed and
of
each amendment thereto (including exhibits filed therewith or incorporated
by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates of experts,
and
will also deliver to the Representatives, without charge, a conformed copy
of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
d) Delivery
of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each Preliminary Prospectus
as
such Underwriter may
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reasonably
request, and the Company hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Company will furnish to each
Underwriter, without charge, during the Prospectus Delivery Period, such number
of copies of the Prospectus as such Underwriter may reasonably
request. Each Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
e) Continued
Compliance with Securities Laws. The Company will comply with
the Securities Act and the Exchange Act so as to permit the completion of the
distribution of the Senior Notes as contemplated in this Agreement and the
Prospectus. If, at any time during the Prospectus Delivery Period,
any event shall occur or condition shall exist as a result of which it is
necessary to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Disclosure
Package or the Prospectus in order that the Disclosure Package or the
Prospectus, as the case may be, 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 existing at the Initial
Sale Time or at the time it is delivered or conveyed to a purchaser, not
misleading, or if it shall be necessary at any such time to amend the
Registration Statement or amend or supplement the Disclosure Package or the
Prospectus in order to comply with the requirements of the Securities Act,
the
Company will (1) notify the Representatives of any such event, development
or
condition, (2) promptly prepare and file with the Commission, subject to Section
3(b) hereof, such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement, the Disclosure
Package or the Prospectus comply with such requirements, and (3) the Company
will furnish to the Underwriters, without charge, such number of copies of
such
amendment or supplement to the Disclosure Package or the Prospectus as the
Underwriters may reasonably request.
f) Blue
Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the
Senior Notes for sale under (or obtain exemptions from the application of)
the
state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as required
for
the distribution of the Senior Notes. The Company shall not be
required to qualify to transact business or to take any action that would
subject it to general service of process in any such jurisdiction where it
is
not presently qualified or where it would be subject to taxation as a foreign
business. The Company will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption
relating to) the Senior Notes for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in
the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use every reasonable effort to obtain the
withdrawal thereof at the earliest possible moment.
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▇) Use
of Proceeds. The Company shall apply the net proceeds from the
sale of the Senior Notes sold by it in the manner described under the caption
“Use of Proceeds” in each of the Disclosure Package and the
Prospectus.
h) Depositary. The
Company will cooperate with the Underwriters and use every reasonable effort
to
permit the Senior Notes to be eligible for clearance and settlement through
the
facilities of the Depositary.
i) Periodic
Reporting Obligations. During the Prospectus Delivery Period and
subject to Section 3(b) hereof, the Company shall file, on a timely basis,
with
the Commission all reports and documents required to be filed under the Exchange
Act.
j) Agreement
Not to Offer or Sell Additional Securities. During the period
commencing on the date hereof and ending on the Closing Date, the Company will
not, without the prior written consent of the Representatives (which consent
may
be withheld at the sole discretion of the Representatives), directly or
indirectly, sell, offer, contract or grant any option to sell, transfer or
establish an open “put equivalent position” within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any debt securities of the Company similar to the Senior Notes
or
securities exchangeable for or convertible into debt securities similar to
the
Senior Notes (other than as contemplated by this Agreement with respect to
the
Senior Notes).
k) Final
Term Sheet. The Company will prepare a final term sheet
containing only a description of the Senior Notes, in substantially the form
attached hereto as Exhibit B, and will file such term sheet pursuant to Rule
433(d) under the Securities Act within the time required by such rule (such
term
sheet, the “Final Term Sheet”). The Final Term Sheet
is an Issuer Free Writing Prospectus for purposes of this
Agreement.
l) Permitted
Free Writing Prospectuses. The Company represents that it has
not made, and agrees that, unless it obtains the prior written consent of the
Representatives, and each Underwriter, severally and not jointly, represents
that it has not made, and agrees with the Company that, unless it obtains the
prior written consent of the Company, it will not make, any offer relating
to
the Senior Notes that would constitute an “issuer free writing prospectus” or
that would otherwise constitute a “free writing prospectus” (as those terms are
defined in Rule 405 of the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the Securities
Act; provided that the prior written consent of the Representatives shall be
deemed to have been given in respect of the Issuer Free Writing Prospectuses
included in Annex I hereto. Any such free writing prospectus
consented to by the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus”. The Company
agrees that (i) it has treated and will treat, as the case may 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 Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
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m) Filing
Fees. The Company agrees to pay the required Commission filing
fees relating to the Senior Notes within the time required by
Rule 456(b)(1) of the Securities Act without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) of the Securities
Act.
n) No
Manipulation of Price. The Company will not take,
directly or indirectly, any action designed to cause or result in, or that
has
constituted or might reasonably be expected to constitute, under the Exchange
Act or otherwise, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the Senior
Notes.
o) Earning
Statement. The Company will make generally available to the
Company’s security holders and to the Representatives as soon as practicable an
earning statement covering a period of at least twelve months beginning with
the
first fiscal quarter of the Company occurring after the date of this Agreement
that will satisfy the provisions of Section 11(a) of the Securities
Act.
The
Representatives, on behalf of the several Underwriters, may, in their sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or extend the time for their
performance.
SECTION
4. Payment of Expenses. The Company agrees
to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions
contemplated hereby, including without limitation (i) all expenses incident
to
the issuance and delivery of the Senior Notes (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes
in
connection with the issuance and sale of the Senior Notes to the Underwriters,
(iii) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors to the Company, (iv) all costs
and expenses incurred in connection with the preparation, printing, filing,
shipping and distribution of the Registration Statement (including financial
statements, exhibits, schedules, consents and certificates of experts), each
Issuer Free Writing Prospectus, each Preliminary Prospectus and the Prospectus,
and all amendments and supplements thereto, and this Agreement, the Indenture,
the DTC Agreement and the Senior Notes, (v) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Senior Notes for offer
and sale under the state securities or blue sky laws, and, if requested by
the
Representatives, preparing a “Blue Sky Survey” or memorandum, and any
supplements thereto, advising the Underwriters of such qualifications,
registrations and exemptions, (vi) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the Senior
Notes, (vii) the fees and expenses of the Trustee, including the reasonable
fees
and disbursements of counsel for the Trustee in connection with the Indenture
and the Senior Notes, (viii) any fees payable in connection with the rating
of
the Senior Notes with the ratings agencies, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company in connection
with approval of the Senior Notes by the Depositary for “book-entry” transfer,
(x) all other fees, costs and expenses referred to in Item 14 of Part II of
the
Registration Statement, (xi) all reasonable out-of-pocket expenses by
the
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Representatives
with respect to any roadshow, including expenses relating to slide production,
internet roadshow taping and travel, and (xii) all other fees, costs and
expenses incurred in connection with the performance of its obligations
hereunder for which provision is not otherwise made in this Section
4. Except as provided in this Section 4, Section 6 and Section 7
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section
5. Conditions of the Obligations of the
Underwriters. The obligations of the several Underwriters to
purchase and pay for the Senior Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the
part of the Company set forth in Section 1 hereof as of each Representation
Date
as though then made and to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following
additional conditions:
a) Effectiveness
of Registration Statement. The Registration Statement shall
remain effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
Securities Act and no proceedings for that purpose shall have been instituted
or
be pending or threatened by the Commission, any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters.
b) Filings
under Rule 424 and Rule 433. For the period from the Execution Time to the
Closing Date:
(i) the
Company shall have filed any Preliminary Prospectus not previously filed and
the
Prospectus with the Commission (including the information required by Rule
430B
under the Securities Act) in the manner and within the time period required
by
Rule 424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430B, and such post-effective amendment shall
have become effective; and
(ii) the
Final Term Sheet, and any other material required to be filed by the Company
pursuant to Rule 433(d) under the Securities Act, shall have been filed with
the
Commission within the applicable time periods prescribed for such filings under
such Rule 433.
c) Accountants’
Comfort Letter. On the date hereof, the Representatives
shall have received from Deloitte & Touche LLP, independent public or
certified public accountants for the Company, a letter dated the date hereof
addressed to the Underwriters, in form and substance satisfactory to the
Representatives with respect to the audited and unaudited consolidated financial
statements and certain financial information of the Company included or
incorporated in the Registration Statement, any Preliminary Prospectus and
the
Prospectus.
d) Bring-down
Comfort Letter. On the Closing Date, the Representatives shall
have received from Deloitte & Touche LLP, independent public or certified
public accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representatives, to
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the
effect that they reaffirm the statements made in the letter furnished by them
pursuant to subsection (c) of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more than
three business days prior to the Closing Date.
e) No
Material Adverse Change or Ratings Agency Change. For
the period from the Execution Time to the Closing Date:
(i) there
shall not have occurred any Material Adverse Change, except as reflected in
or
contemplated by the Disclosure Package; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of the Subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
f) Opinion
of Counsel for the Company. On the
Closing Date, the Representatives shall have received the favorable opinions
of
(i) Sidley Austin LLP, counsel for the Company, dated as of such Closing Date,
the form of which is attached as Exhibit A-1, and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇, the General
Counsel of the Parent, dated as of such Closing Date, the form of which is
attached as Exhibit A-2.
g) Opinion
of Counsel for the Underwriters. On the Closing Date,
the Representatives shall have received the favorable opinion of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated as of such Closing Date,
with respect to such matters as may be reasonably requested by the
Underwriters.
h) Officers’
Certificate. On the Closing Date, the Representatives
shall have received a written certificate executed by the Chief Executive
Officer, President or a Vice President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of such Closing
Date, to the effect that, to the best of their knowledge after reasonable
investigation:
(i) the
Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted
or threatened by the Commission;
(ii) there
has not occurred any downgrading, and the Company has not received any notice
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of the Subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
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(iii) for
the period from the Execution Time to the Closing Date, there has not occurred
any Material Adverse Change;
(iv) the
representations, warranties and covenants of the Company set forth in Section
1
of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(v) the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date.
i) Additional
Documents. On or before the Closing Date, the
Representatives and counsel for the Underwriters shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Senior
Notes
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions
or
agreements, herein contained.
If
any
condition specified in this Section 5 is not satisfied when and as required
to
be satisfied, this Agreement may be terminated by the Representatives by notice
to the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Section 4, Section 6, Section 7 and Section 15 hereof shall at
all times be effective and shall survive such termination.
Section
6. Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its directors, officers, employees and agents, and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which such Underwriter, director, officer, employee,
agent or controlling person may become subject, insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment or supplement thereto, including any information deemed to be a part
thereof pursuant to Rule 430B under the Securities Act, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or
necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact included in any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and to reimburse each Underwriter, its officers, directors, employees, agents
and controlling persons for any and all expenses (including the reasonable
fees
and disbursements of counsel chosen by the Representatives) as such expenses
are
reasonably incurred by such Underwriter, officer, director, employee, agent
or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided,
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however,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising
out
of or based upon any untrue statement or alleged untrue statement or omission
or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto). The indemnity agreement set forth
in this Section 6(a) shall be in addition to any liabilities that the Company
may otherwise have.
(b) Indemnification
of the Company, its Directors and Officers. Each Underwriter
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company, or any such director, officer or controlling
person may become subject, insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of
or
is based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading, in each case to the extent, and only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, such Preliminary Prospectus,
such Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use therein; and to reimburse the Company, such director, officer
or controlling person for any and all expenses (including the reasonable fees
and disbursements of counsel chosen by the Company) as such expenses are
reasonably incurred by the Company, such director, officer or controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information that the Underwriters
have
furnished to the Company expressly for use in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or
any amendment or supplement thereto) are the statements set forth in the third
paragraph and seventh paragraph under the caption “Underwriting” in the
Prospectus. The indemnity agreement set forth in this Section 6(b)
shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by
an indemnified party under this Section 6 of notice of the commencement of
any
action, such indemnified party will, if a claim in respect thereof is to be
made
against an indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure to so notify
the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or
(b) above unless and to the extent it did not otherwise learn of such action
and
such failure
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results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
liability other than the indemnification obligation provided in paragraph (a)
or
(b) above. In case any such action is brought against any indemnified
party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate
in,
and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified
party
promptly after receiving the aforesaid notice from such indemnified party,
to
assume the defense thereof with counsel satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to
employ its own counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party, unless: (i) the employment of such
counsel has been specifically authorized by the indemnifying party;
(ii) the indemnifying party has failed promptly to assume the defense and
employ counsel reasonably satisfactory to the indemnified party; or
(iii) the named parties to any such action (including any impleaded
parties) include both such indemnified party and the indemnifying party or
any
affiliate of the indemnifying party, and such indemnified party shall have
reasonably concluded that either (x) there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party or such affiliate of the indemnifying party
or (y) a conflict may exist between such indemnified party and the
indemnifying party or such affiliate of the indemnifying party (it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions
in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by (i) the
Representatives, in the case of indemnification pursuant to Section 6(a) hereof,
or (ii) the Company, in the case of indemnification pursuant to Section 6(b)
hereof, and that all such reasonable fees and expenses shall be reimbursed
as
they are incurred).
(d) Settlements. The
indemnifying party under this Section 6 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such
consent or if there is a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
6(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (i) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such
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action,
suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section
7. Contribution. If the indemnification provided
for in Section 6 hereof is for any reason unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable
by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one
hand, and the Underwriters, on the other hand, from the offering of the Senior
Notes pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as
well
as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, in connection with the offering of the Senior Notes pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Senior Notes pursuant to this Agreement
(before deducting expenses) received by the Company, and the total underwriting
discount received by the Underwriters, in each case as set forth on the front
cover page of the Prospectus bear to the aggregate initial public offering
price
of the Senior Notes as set forth on such cover. The relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, shall
be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact relates to information supplied by the Company, on the
one
hand, or the Underwriters, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 6(c) hereof, any legal or other fees
or
expenses reasonably incurred by such party in connection with investigating
or
defending any action or claim. The provisions set forth in Section
6(c) hereof with respect to notice of commencement of any action shall apply
if
a claim for contribution is to be made under this Section 7; provided, however,
that no additional notice shall be required with respect to any action for
which
notice has been given under Section 6(c) hereof for purposes of
indemnification.
The
Company and the Underwriters agree that it would not be just and equitable
if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 7.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the underwriting discount received by such Underwriter
in connection with the Senior Notes underwritten by it and distributed to the
public. No person
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guilty
of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 7 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 7, each
director, officer, employee and agent of an Underwriter and each person, if
any,
who controls an Underwriter within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as such Underwriter,
and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as the Company.
Section
8. Default of One or More of the Several
Underwriters. If, on the Closing Date, any one or more
of the several Underwriters shall fail or refuse to purchase Senior Notes that
it or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Senior Notes, which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of
the
aggregate principal amount of the Senior Notes, to be purchased on such date,
the other Underwriters shall be obligated, severally, in the proportion to
the
aggregate principal amounts of such Senior Notes set forth opposite their
respective names on Schedule A bears to the aggregate principal amount of such
Senior Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase
such Senior Notes which such defaulting Underwriter or Underwriters agreed
but
failed or refused to purchase on such date. If, on the Closing Date, any one
or
more of the Underwriters shall fail or refuse to purchase such Senior Notes
and
the aggregate principal amount of such Senior Notes with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Senior Notes
to
be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such Senior Notes are not made within 48
hours after such default, this Agreement shall terminate without liability
of
any party to any other party except that the provisions of Section 4, Section
6,
Section 7 and Section 15 hereof shall at all times be effective and
shall survive such termination. In any such case, either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days in order that the required
changes, if any, to the Registration Statement, each Issuer Free Writing
Prospectus, each Preliminary Prospectus or the Prospectus or any other documents
or arrangements may be effected.
As
used
in this Agreement, the term “Underwriter” shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
Section
9. Termination of this Agreement. Prior to
the Closing Date, this Agreement may be terminated by the Representatives by
notice given to the Company if at any time (i) trading or quotation in any
of
the Company’s securities shall have been suspended or materially limited by the
Commission, or trading in securities generally on the NASDAQ Global Market
or
the New York Stock Exchange shall have been suspended or materially limited,
or
minimum or
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maximum
prices shall have been generally established on either of such stock exchanges
by the Commission or the NASD; (ii) a general banking moratorium shall have
been
declared by any of federal or New York authorities; (iii) there shall have
occurred any outbreak or escalation of national or international hostilities
or
any crisis or calamity, or any material adverse change in the United States
or
international financial markets, or any change or development involving a
prospective substantial change in United States’ or international political,
financial or economic conditions, as in the judgment of the Representatives
makes it impracticable or inadvisable to market the Senior Notes in the manner
and on the terms described in the Disclosure Package or the Prospectus or to
enforce contracts for the sale of securities; (iv) there shall have occurred
any
Material Adverse Change; or (v) there shall have occurred a material disruption
in commercial banking or securities settlement or clearance services in the
United States. Any termination pursuant to this Section 9 shall be without
liability on the part of (a) the Company to any Underwriter, except that the
Company shall be obligated to reimburse the expenses of the Representatives
and
the Underwriters pursuant to Section 4 hereof, (b) any Underwriter to the
Company, or (c) any party hereto to any other party except that the provisions
of Section 6, Section 7 and Section 15 hereof shall at all times be
effective and shall survive such termination.
Section
10. No Fiduciary Duty. No Advisory or Fiduciary
Responsibility. The Company acknowledges and agrees
that: (i) the purchase and sale of the Senior Notes pursuant to this Agreement,
including the determination of the public offering price of the Senior Notes
and
any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the
other
hand; (ii) in connection with the offering contemplated hereby and the process
leading to such transaction each Underwriter is and has been acting solely
as a
principal and is not the financial advisor, agent or fiduciary of the Company
or
its affiliates, stockholders, creditors or employees or any other party; (iii)
no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may
be
engaged in a broad range of transactions that involve interests that differ
from
those of the Company; and (v) the Underwriters 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.
The
Company hereby waives and releases, to the fullest extent permitted by law,
any
claims that the Company may have against the several Underwriters with respect
to any breach or alleged breach of agency or fiduciary duty.
SECTION
11. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements,
representations, warranties and other statements of the Company, of its officers
and of the several Underwriters set forth in or made pursuant to this Agreement
(i) will remain operative and in full force and effect, regardless of (A) any
investigation, or statement as to the results thereof, made by or on behalf
of
any Underwriter, the officers or employees of any Underwriter, or any person
controlling the Underwriter, or the Company, the officers or
22
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employees
of the Company, or any person controlling the Company, as the case may be or
(B)
acceptance of the Senior Notes and payment for them hereunder and (ii) will
survive delivery of and payment for the Senior Notes sold hereunder and any
termination of this Agreement.
Section
12. Notices. All communications hereunder
shall be in writing and shall be mailed, hand delivered or faxed and confirmed
to the parties hereto as follows:
If
to the
Representatives:
Banc
of
America Securities LLC
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: High
Grade Transaction Management/Legal
and
Wachovia
Capital Markets, LLC
One
Wachovia Center,
DC-6
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
with
a
copy to:
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇
23
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If
to the
Company:
Kansas
City Power & Light Company
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇
with
a
copy to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇
Any
party
hereto may change the address for receipt of communications by giving written
notice to the others.
SECTION
13. Successors. This Agreement will inure
to the benefit of and be binding upon the parties hereto, including any
substitute Underwriters pursuant to Section 8 hereof, and to the benefit of
the
directors, officers, employees, agents and controlling persons referred to
in
Sections 6 and 7 hereof, and in each case their respective successors and
assigns, and no other person will have any right or obligation
hereunder. The term “successors and assigns” shall
not include any purchaser of the Senior Notes as such from any of the
Underwriters merely by reason of such purchase.
SECTION
14. Partial Unenforceability. The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
SECTION
15. Governing Law Provisions. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN THAT STATE.
SECTION
16. General Provisions. This Agreement
constitutes the entire agreement of the parties to this Agreement and supersedes
all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof. This Agreement may be executed in two or more counterparts,
each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This
Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party
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whom
the
condition is meant to benefit. The Section headings herein are for
the convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
Each
of
the parties hereto acknowledges that it is a sophisticated business person
who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 6 hereof and the contribution provisions of Section 7 hereof, and
is
fully informed regarding said provisions. Each of the parties hereto
further acknowledges that the provisions of Sections 6 and 7 hereof fairly
allocate the risks in light of the ability of the parties to investigate the
Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required
by
the Securities Act and the Exchange Act.
25
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If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to the Company the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in
accordance with its terms.
Very
truly
yours,
| KANSAS CITY POWER & LIGHT COMPANY | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Treasurer | |||
26
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The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
BANC
OF
AMERICA SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
Acting
as
Representatives of the
several
Underwriters named in
the
attached Schedule A.
|
By:
|
Banc
of America Securities LLC
|
|
By:
|
__/s/
▇▇▇▇▇ ▇. Carbone________
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
|
Title:
Vice President
|
|
By:
|
Wachovia
Capital Markets, LLC
|
|
By:
|
__/s/
▇▇▇
Williams_________________
|
|
|
Name:
▇▇▇ ▇▇▇▇▇▇▇▇
|
|
|
Title:
Managing Director
|
27
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SCHEDULE
A
|
Underwriters
|
Aggregate
Principal Amount of Senior Notes to be
Purchased
|
|
Banc
of America Securities
LLC
|
$71,250,000
|
|
Wachovia
Capital Markets,
LLC
|
71,250,000
|
|
BNP
Paribas Securities
Corp.
|
37,500,000
|
|
BNY
Capital Markets,
Inc.
|
17,500,000
|
|
Lazard
Capital Markets
LLC.
|
17,500,000
|
|
KeyBanc
Capital Markets
Inc.
|
17,500,000
|
|
Scotia
Capital (USA)
Inc.
|
17,500,000
|
|
Total
|
$250,000,000
|
i
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ANNEX I
LIST
OF
ISSUER FREE WRITING PROSPECTUSES
1. Final
Term Sheet dated May 30, 2007
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EXHIBIT
A-1
Form
of Opinion of Issuer’s Counsel
June
4,
▇▇▇▇
▇▇▇▇
▇▇
▇▇▇▇▇▇▇ SECURITIES LLC
WACHOVIA
CAPITAL MARKETS, LLC
As
Representatives of the several Underwriters
c/o Banc
of America Securities LLC
Hearst
Tower
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
and
Wachovia
Capital Markets,
LLC
One
Wachovia Center, DC-5
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Re:
|
Kansas
City Power & Light Company
|
|
|
[●]%
Notes due 2017
|
Ladies
and Gentlemen:
As
special counsel for Kansas City Power & Light Company, a Missouri
corporation (the “Company”), we address this letter to you individually
and as the representatives of the several Underwriters (the
“Underwriters”) named in Schedule A to the Underwriting Agreement dated
May 30, 2007 (the “Underwriting Agreement”) between you, as
representatives of the Underwriters, and the Company, with respect to the
issuance and sale pursuant thereto of $250,000,000 aggregate principal amount
of
the Company’s [●]% Notes due 2017 (the “Senior Notes”). The
Senior Notes are being issued under a senior indenture dated as of May 1, 2007
(the “Indenture”) between the Company and The Bank of New York Trust
Company, N.A., as trustee (the “Trustee”), as supplemented by
Supplemental Indenture No. 1 dated as of June 4, 2007 between the Company and
the Trustee (the “Supplemental Indenture”).
The
Company filed with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”):
(i)
on
August 26, 2003, a Registration Statement on Form S-3 (Registration No.
333-108215), and on August 29, 2003, Amendment No. 1 thereto, which registration
statement, as so amended, became effective on September 4, 2003; as used in
this
letter, the term “Registration Statement” shall mean, as of any time
referred to herein, such registration
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statement,
as amended at such time, including all exhibits thereto (but excluding Form
T-1)
and the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act and any prospectus
supplement relating to the Senior Notes that was filed with the Commission
and
deemed to be part of and included in the Registration Statement pursuant to
Rule
430B(f)(1) under the Securities Act;
(ii)
on
May 30, 2007, pursuant to Rule 424(b) under the Securities Act
(“Rule 424(b)”), the Company’s preliminary prospectus supplement
dated May 30, 2007 (the “Preliminary Prospectus Supplement”) specifically
relating to the Senior Notes and the prospectus dated May 30, 2007 relating
to
the Company’s debt securities included in the Registration Statement (including
the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, the “Base
Prospectus”); as used in this letter, the term “Preliminary
Prospectus” shall mean the Preliminary Prospectus Supplement together with
the Base Prospectus;
(iii)
on
May 30, 2007, pursuant to Rule 433 under the Securities Act
(“Rule 433”), a final term sheet, dated May 30, 2007 (the “Final
Term Sheet”), relating to the Senior Notes; and
(iv)
on
May [●], 2007, pursuant to Rule 424(b), the Company’s prospectus supplement
dated May 30, 2007 (the “Prospectus Supplement”) specifically relating to
the Senior Notes and the Base Prospectus; as used in this letter, the term
“Prospectus” shall mean the Prospectus Supplement together with the Base
Prospectus.
As
used
in this letter, the term “Initial Sale Time” means [·]
[p.m.] (Eastern
time) on May 30, 2007.
Pursuant
to the requirement of Section 5(f)(i) of the Underwriting Agreement, this
will advise you that in the opinion of the undersigned:
1. The
Registration Statement has become effective under the Securities Act; each
of
the Preliminary Prospectus and the Prospectus has been filed pursuant to Rule
424(b) in accordance with Rule 424(b); the Final Term Sheet [and each
other Issuer Free Writing Prospectus required to be filed with the
Commission]1 has been filed
pursuant to Rule 433 in accordance with Rule 433; and, to our knowledge, no
stop
order suspending the effectiveness of the Registration Statement is in effect
nor are any proceedings for such purpose pending before or threatened by the
Commission.
2. The
Registration Statement (other than the financial statements, financial data,
statistical data and supporting schedules included therein or omitted therefrom
and other than the documents incorporated by reference therein, as to none
of
which we express any opinion pursuant to this paragraph 2), as of the “new
effective date” (as defined herein), the Preliminary Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included therein or omitted therefrom and other than the documents incorporated
by
______________________________
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reference
therein, as to none of which we express any opinion pursuant to this paragraph
2), at the Initial Sale Time, and the Prospectus (other than the financial
statements, financial data, statistical data and supporting schedules included
therein or omitted therefrom and other than the documents incorporated by
reference therein, as to none of which we express any opinion pursuant to this
paragraph 2), as of the date of the Prospectus Supplement and as of the date
hereof, each complied as to form in all material respects with the requirements
of the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”), the Securities Act and the rules and regulations of the Commission
promulgated thereunder.
3. The
documents incorporated by reference in the Preliminary Prospectus and the
Prospectus (other than the financial statements, financial data, statistical
data and supporting schedules included therein or omitted therefrom, as to
which
we express no opinion), at the respective times such documents were filed with
the Commission, complied as to form in all material respects with the applicable
requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations of the Commission
promulgated thereunder.
4. The
Indenture has been duly qualified under the Trust Indenture Act and constitutes
a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent enforceability may
be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a
proceeding in equity or at law).
5. The
execution, delivery and performance by the Company of this Agreement, the
Indenture and the Senior Notes and the consummation by the Company of the
transactions contemplated thereby (including the issuance and sale of the Senior
Notes and the use of the proceeds from the sale of the Senior Notes as described
in the Disclosure Package and the Prospectus under the caption “Use Of
Proceeds”) and compliance by the Company with its obligations under this
Agreement, the Indenture and the Senior Notes do not and will not violate any
provision of New York law that, in our experience and without independent
investigation, is normally applicable to transactions of the type contemplated
by this Agreement and the Indenture (provided no opinion is expressed with
respect to state securities or blue sky laws).
6. The
Senior Notes, when duly authorized and executed by the Company, authenticated
by
the Trustee in accordance with the terms of the Indenture and delivered against
payment therefor pursuant to the terms of the Underwriting Agreement, will
constitute a legal, valid and binding obligation of the Company, entitled to
the
benefits of the Indenture and enforceable against the Company in accordance
with
the terms of the Senior Notes, except to the extent enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights and by the effect of general
principles of equity (regardless of whether enforceability is considered in
a
proceeding in equity or at law).
7. To
our knowledge, no consent, approval, authorization or order of, or registration
or filing with, any court or other governmental or regulatory authority or
agency is required
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under
Applicable Laws for the execution and delivery by the Company of, or the
performance of the Company’s obligations under, the Underwriting Agreement, the
Indenture or the Supplemental Indenture, or for the issue and sale of the Senior
Notes. As used in this paragraph 7, the term “Applicable Laws” means
the laws of the State of New York and the federal laws of the United States
of
America which, in our experience and without independent investigation, are
normally applicable to transactions of the type contemplated by the Underwriting
Agreement, the Indenture, the Supplemental Indenture (provided that the term
“Applicable Laws” shall not include federal or state securities or blue sky
laws, including, without limitation, the Securities Act, the Exchange Act,
the
Trust Indenture Act and the Investment Company Act of 1940, as amended (the
“Investment Company Act”), and the respective rules and regulations
thereunder).
8. The
statements set forth in the Disclosure Package and the Prospectus under the
headings “Description of the Notes” (insofar as such statements purport to
summarize certain provisions of the Senior Notes, the Indenture and the
Supplemental Indenture) fairly summarize in all material respects the matters
therein described.
9. The
Company is not, and after receipt of payment for the Senior Notes and
application of the proceeds as described in the Prospectus, will not be,
required to register as an “investment company” within the meaning of the
Investment Company Act.
In
acting
as special counsel for the Company in connection with the transactions described
in the first paragraph above, we have participated in conferences with officers
and other representatives of the Company, including its independent registered
public accountants and representatives of the Underwriters and representatives
of counsel for the Underwriters, at which conferences the contents of the
Disclosure Package (as such term is defined in Annex A hereto), the
Prospectus and the Registration Statement and related matters were
discussed. We have not participated in the preparation of the
documents incorporated by reference in the Registration Statement, the
Disclosure Package or the Prospectus, however, we have reviewed such
documents. Except as stated in numbered paragraph 8 above, we have
not independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and do not assume responsibility
for, the accuracy, completeness or fairness of statements contained in the
Registration Statement, the Disclosure Package or the
Prospectus. However, as a result of such consideration and
participation, no facts have come to our attention that have caused us to
believe that:
(a) the
Registration Statement, as of each “new effective date” with respect to the
Senior Notes pursuant to, and within the meaning of, Rule 430B(f)(2) under
the
Securities Act, 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;
(b) the
Disclosure Package, at the Initial Sale Time, included 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; or
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(c) the Prospectus, as of the date of the Prospectus Supplement and on the date hereof, included or includes 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;
except
in
each case we express no belief, and make no statement with respect to, the
financial statements, financial data, statistical data and supporting schedules
included or incorporated or deemed to be incorporated by reference therein
or
omitted therefrom.
Insofar
as the opinions and statements set forth in numbered paragraph 2 and paragraph
(a) above address the Registration Statement at a “new effective date” with
respect to the Senior Notes:
(i) we
have been informed by you, as the representative of the Underwriters, that
the
date of first use of the Preliminary Prospectus was May 30, 2007 and that we
may
assume that such use occurred prior to the date and time of the first contract
of sale of the Senior Notes for the purposes of Rule 430B(f)(1) under the
Securities Act; and, therefore, we assume that a “new effective date” was May
30, 2007, and we have assumed, with your permission and without independent
investigation or verification, the accuracy of such information;
and
(ii) we
have been informed by you, as the representative of the Underwriters, that
the
Initial Sale Time was immediately prior to the earlier of the date that the
Prospectus was first used or the date and time of the first contract of sale
of
the Senior Notes for the purposes of Rule 430B(f)(1) under the Securities Act;
and, therefore, we assume that a “new effective date” was the Initial Sale Time,
and we have assumed, with your permission and without independent investigation
or verification, the accuracy of such information.
For
the
purpose of rendering the foregoing opinions and making the foregoing statements,
we have relied to the extent we have deemed appropriate, as to various questions
of fact material to such opinions and statements, upon the representations
made
by the Company in the Underwriting Agreement and upon certificates of officers
of the Company. We also have examined originals, or copies of
originals certified to our satisfaction, of such agreements, documents,
certificates and other statements of governmental officials and other
instruments, have examined such questions of law and have satisfied ourselves
as
to such matters of fact as we have considered relevant and necessary as a basis
for this letter. We have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals and the conformity with the original documents
of
all documents submitted to us as certified or photostatic copies or by facsimile
or other means of electronic transmission or which we obtained from the
Commission’s Electronic Data Gathering, Analysis and Retrieval System
(“▇▇▇▇▇”). In rendering our opinion set forth in numbered
paragraph 1 above with respect to the effectiveness of the Registration
Statement and the absence of stop orders or proceedings, we have relied solely
upon the oral advice of the staff of the Commission via a telephonic call on
the
date hereof. In rendering our opinion set forth in numbered paragraph
1 above with respect to the filing of the Preliminary Prospectus, the Final
Term
Sheet and the Prospectus, we have relied solely upon our review of the ▇▇▇▇▇
website of the Commission. With respect to any instrument or
agreement executed or to be executed by any party, we have assumed, to the
extent relevant to the opinions set forth herein, that (i) such
party
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(if
not a
natural person) has been duly organized and is validly existing and in good
standing under the laws of its jurisdiction of organization and (ii) such party
has or had full right, power and authority to execute, deliver and perform
its
obligations under each instrument or agreement to which it is a party and each
such instrument or agreement has been duly authorized (if applicable), executed
and delivered by, and, with respect to any party other than the Company, is
a
valid, binding and enforceable agreement or obligation, as the case may be,
of,
such party.
In
rendering our opinion set forth in numbered paragraph 9 above, we have relied
exclusively, as to all factual matters, on the certificate, dated as of the
date
of this letter, of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer of the
Company.
Any
opinion or statement herein which is expressed to be “to our knowledge” or is
otherwise qualified by words of like import means that the lawyers currently
practicing law with the Firm who have had active involvement in representing
the
Company have no current conscious awareness of any facts or information contrary
to such opinion or statement. Except to the extent expressly set
forth in this letter, we have not undertaken any independent investigation
to
determine the existence or absence of any fact, and no inference as to our
knowledge of the existence or absence of any fact should be drawn from our
representation of the Company or the rendering of this letter.
This
letter is limited to the federal laws of the United States of America and the
laws of the State of New York. We express no opinion as to matters
relating to securities or blue sky laws of any jurisdiction or any rules or
regulations thereunder (other than federal securities laws). This
letter is based on the law in effect, and the facts and circumstances existing,
on the date of this letter. We assume no obligation to update or
supplement this letter to reflect any facts or circumstances which may hereafter
come to our attention with respect to the opinions and statements expressed
above, including any changes in applicable law which may hereafter
occur.
This
letter is being rendered and delivered solely to and for the benefit of the
persons to whom it is addressed; accordingly, it may not be delivered to or
relied upon by any other person (including, without limitation, any person
who
acquires the Senior Notes from or through the Underwriters), quoted or filed
with any governmental authority or other regulatory agency or otherwise
circulated or utilized for any other purpose without our prior written
consent.
Very
truly yours,
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ANNEX
A
DISCLOSURE
PACKAGE
1. The
Preliminary Prospectus.
2. The
Final Term Sheet.
For
purposes of determining the “Disclosure Package,” the information contained in
the foregoing documents shall be considered together.
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EXHIBIT
A-2
Form
of Opinion of Company’s General Counsel
|
a)
|
The
Company is a validly organized and existing corporation in good standing
under the laws of the State of Missouri and is duly qualified as
a foreign
corporation to do business in the State of Kansas with corporate
power and
authority to own, lease and operate its properties and to conduct
its
business as set forth in the Disclosure Package and the Prospectus
and to
enter into and perform its obligations under this
Agreement.
|
|
b)
|
This
Agreement has been duly authorized, executed and delivered by the
Company.
|
|
c)
|
The
Indenture has been duly authorized, executed and delivered by the
Company.
|
|
d)
|
The
Senior Notes have been duly authorized, executed and delivered by
the
Company.
|
|
e)
|
Each
Subsidiary has been duly organized or formed and is validly existing
as a
corporation in good standing under the laws of the jurisdiction of
its
incorporation, has the corporate power and authority to own, lease
and
operate its properties and to conduct its business as described in
the
Disclosure Package and the Prospectus and is duly qualified as a
foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of
the ownership or leasing of property or the conduct of business,
except
where the failure so to qualify or to be in good standing would not
result
in a Material Adverse Change; except as otherwise disclosed in the
Disclosure Package and the Prospectus, all of the issued and outstanding
capital stock owned directly or indirectly by the Company of each
Subsidiary have been duly authorized and validly issued, are fully
paid
and non-assessable and, to the best of such counsel’s knowledge, such
capital stock owned by the Company, are owned by the Company, directly
or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim; and none of the outstanding shares
of
capital stock of any Subsidiary was issued in violation of preemptive
or
similar rights of any securityholder of such
Subsidiary.
|
|
f)
|
|
No
approval, authorization, consent, certificate or order of any state
or
federal commission or regulatory authority (other than (i) as may
be
required under securities or blue sky laws of the various states,
as to
which such counsel need express no opinion, and (ii) as may have
already
been obtained or made and shall be in full force and effect on the
date
hereof) is necessary with respect to the issue and sale of the Senior
Notes as contemplated in this Agreement and the
Indenture.
|
|
g)
|
The
Company and the Subsidiaries hold, to the extent required, valid
and
subsisting franchises, licenses and permits authorizing them to carry
on
the regulated utility businesses in which they are engaged, in the
territories from which substantially all of the Company’s consolidated
gross operating revenue is derived, except where the failure to hold
such
franchises, licenses and permits would not reasonably be expected
to
result in a Material Adverse
Change.
|
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|
h)
|
To
the best of such counsel’s knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed
in
the Disclosure Package and the Prospectus, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the
Company or any of its subsidiaries is a party or of which any of
their
property is the subject which are not described in the Disclosure
Package
and the Prospectus, including ordinary routine litigation incidental
to
the business of the Company, are, considered in the aggregate, not
material to the consolidated financial condition of the Company and
its
subsidiaries, taken as a whole.
|
|
i)
|
|
To
the best of such counsel’s knowledge, the Company is not in violation of
its Restated Articles of Consolidation, as amended, or in default
in the
performance or observance of any material obligation, agreement,
covenant
or condition contained in any material Agreement or
Instrument.
|
|
j)
|
|
The
execution, delivery and performance of this Agreement, the Indenture,
the
Supplemental Indenture and the Senior Notes and the consummation
of the
transactions contemplated therein (including the issuance and sale
of the
Senior Notes and the use of the proceeds received by the Company
from the
sale of the Senior Notes as described in the Disclosure Package and
the
Prospectus under the caption “Use Of Proceeds”) and compliance by the
Company with its obligations under this Agreement, the Indenture,
the
Supplemental Indenture and the Senior Notes do not and will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to any
material Agreement or Instrument, or any law, administrative regulation
or
administrative or court order or decree known to such counsel to
be
applicable to the Company of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company; nor
will
such action result in any violation of the provisions of the Restated
Articles of Consolidation, as amended, or by-laws of the
Company.
|
|
k)
|
To
the best of such counsel’s knowledge, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments or
documents required to be described or referred to in the Disclosure
Package or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed
or
incorporated by reference as exhibits to the Registration Statement,
the
descriptions thereof or references thereto are correct in all material
respects, and no default exists in the due performance or observance
of
any material obligation, agreement, covenant or condition contained
in any
Agreement or Instrument described, referred to, filed or incorporated
by
reference therein.
|
In
rendering such opinion, such counsel may state that he expresses no opinion
as
to the laws of any jurisdiction other than the laws of the States of Missouri
and Kansas and the federal laws of the United States of America. Such
opinion shall not state that it is to be governed or qualified by, or that
it is
otherwise subject to, any treatise, written policy or other document relating
to
legal opinions, including, without limitation, the Legal Opinion Accord of
the
ABA Section of Business Law (1991).
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EXHIBIT
B
Final
Term Sheet
May 30,
2007
|
Issuer:
|
Kansas
City Power & Light Company
|
|
Ratings:
|
▇▇▇▇▇’▇
Investor Services: A3 (Stable Outlook)
Standard
& Poor’s Ratings Group: BBB (CreditWatch with Negative
Implications)
|
|
Principal
Amount:
|
$250,000,000
|
|
Title
of Securities:
|
5.850%
Notes due 2017
|
|
Maturity:
|
June
15, 2017
|
|
Coupon
(Interest Rate):
|
5.850%
|
|
Yield
to Maturity:
|
5.872%
|
|
Benchmark
Treasury:
|
4.500%
due May 15, 2017
|
|
Spread
to Benchmark Treasury:
|
100
basis points
|
|
Benchmark
Treasury Price and Yield:
|
97.03
/ 4.872%
|
|
Interest
Payment Dates:
|
Semi-annually
on June 15 and December 15, commencing on December 15, 2007
|
|
Redemption
Provision:
|
Callable
at any time at a make-whole price of the greater of (i) 100% of the
principal amount or (ii) discounted present value at Treasury Rate
plus 15
basis points
|
|
Price
to Public:
|
99.832%
of the principal amount, plus accrued interest, if any, from June
4,
2007
|
|
Settlement
Date:
|
June
4, 2007
|
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at
▇▇▇.▇▇▇.▇▇▇. Alternatively, Banc of America Securities LLC or
Wachovia Capital Markets, LLC can arrange to send you the prospectus if you
request it by calling or e-mailing Banc of America Securities LLC at
1-800-294-1322 or ▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by calling
Wachovia Capital Markets, LLC at ▇-▇▇▇-▇▇▇-▇▇▇▇.
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