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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) October 5, 1999
(September 29, 1999) ---------------
- --------------------
UtiliCorp United Inc. Delaware 44-0541877
UCU Capital Trust I Delaware Applied For
(Exact name of each (State or other jurisdiction (IRS Employer
registrant as specified of incorporation) Identification Nos.)
in its charter)
1-3562 0-27413
(Commission File Number (Commission File Number
for UtiliCorp United Inc.) for UCU Capital Trust I)
20 West Ninth Street, Kansas City, Missouri 64105
- -----------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (816) 421-6600
---------------------------
Not applicable
- -----------------------------------------------------------------------------
(Former name or former address, if changed since last report)
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ITEM 5: OTHER EVENTS.
On September 29, 1999, UtiliCorp United Inc. and UCU Capital Trust I
closed a public offering of 10,000,000 9 3/4 PEPS Units.
Filed as exhibits to this report are the Underwriting Agreement, the
Remarketing Agreement and the Twelfth Supplemental Indenture entered into in
connection with this offering.
ITEM 7: FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS. THE FOLLOWING EXHIBITS ARE FILED HEREWITH:
(1) (A) UNDERWRITING AGREEMENT, DATED AS OF SEPTEMBER 23, 1999,
BY AND AMONG UTILICORP CAPITAL TRUST I, UTILICORP UNITED INC.,
MORGAN STANLEY & CO. INCORPORATED, MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, AND PAINEWEBBER INCORPORATED.
(1) (B) REMARKETING AGREEMENT, DATED AS OF SEPTEMBER 29, 1999,
BY AND AMONG UTILICORP UNITED INC., UCU CAPITAL TRUST I, AND
MORGAN STANLEY & CO. INCORPORATED.
(4) (D)(14) TWELFTH SUPPLEMENTAL INDENTURE, DATED AS OF
SEPTEMBER 29, 1999, BY AND BETWEEN UTILICORP UNITED INC. AND
BANK ONE TRUST COMPANY, NA (FORMERLY, THE FIRST NATIONAL BANK
OF CHICAGO).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 5, 1999
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
----------------------------
Name: Dale J. Wolf
Title: Vice President, Finance,
Treasurer and
Corporate Secretary
UCU CAPITAL TRUST I
By: /s/ Dale J. Wolf
--------------------------
Name: Dale J. Wolf
Title: Regular Trustee
(Duly authorized representative)
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S>
(1) (a) Underwriting Agreement, dated as of September 23, 1999, by and
among UtiliCorp Capital Trust I, UtiliCorp United Inc.,
Morgan Stanley & Co. Incorporated, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and PaineWebber Incorporated.
(1) (b) Remarketing Agreement, dated as of September 29, 1999, by
and among UtiliCorp United Inc., UCU Capital Trust I,
and Morgan Stanley & Co. Incorporated.
(4) (d)(14) Twelfth Supplemental Indenture, dated as of September 29,
1999, by and between UtiliCorp United Inc. and Bank One
Trust Company, NA (formerly, The First National Bank of
Chicago).
</TABLE>
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EXHIBIT 1(a)
UTILICORP UNITED INC.
UTILICORP CAPITAL TRUST I
9 3/4% PREMIUM EQUITY PARTICIPATING
SECURITY UNITS--PEPS-SM- UNITS
UNDERWRITING AGREEMENT
----------------------
September 23, 1999
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the
several Underwriters
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
From time to time UtiliCorp Capital Trust I, a Delaware statutory
business trust formed under the laws of the State of Delaware (the "Trust"),
and UtiliCorp United Inc., a Delaware corporation (the "Company"), propose to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions stated herein
and therein, whereby the Trust and the Company will issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) an aggregate of 9,000,000 __% Premium
Equity Participating Security Units--PEPS-SM- Units (the "PEPS Units"),
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Firm Securities") and, if set forth in the applicable
Pricing Agreement and solely for the purpose of covering over-allotments, an
additional number of PEPS Units specified in Schedule II to such Pricing
Agreement (the "Option Securities"). Each PEPS Units will initially consist
of (a) a stock purchase contract (a "Purchase Contract") under which (i) the
holder of a PEPS Units will purchase from the Company on November 16, 2002,
for an amount in cash equal to the stated amount per Security of $25 (the
"Stated Amount"), a number of shares of common stock, par value $1.00 per
share, of the Company, (the "Common Stock"), as set forth in such Purchase
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Contract and (ii) the Company will pay contract fees as set forth in such
Purchase Contract (the "Contract Fees") to the holder of PEPS Units, and (b)
a Trust Preferred Security (a "Trust Preferred Security") having a stated
liquidation amount of $25. per Trust Preferred Security, representing an
undivided beneficial ownership interest in the assets of the Trust and
guaranteed by the Company as to the payment of cash distributions, out of
moneys held by the Trust, and as to payments on liquidation or redemption and
described in any Prospectus (as defined in Section 2(a) hereof). In
accordance with the terms of a Purchase Contract Agreement (the "Purchase
Contract Agreement") to be entered into between the Company and Bank One
Trust Company, NA, as Purchase Contract Agent (the "Purchase Contract
Agent"), the holders of the PEPS Units will pledge the Trust Preferred
Securities to Chase Manhattan Trust Company, National Association, as
Collateral Agent (the "Collateral Agent"), pursuant to a Pledge Agreement
(the "Pledge Agreement") to be entered into between the Company and the
Collateral Agent, to secure the holders' obligations to purchase Common Stock
under the Purchase Contracts. In the event any Option Securities are
purchased, the holders will pledge to the Collateral Agent the additional
Trust Preferred Securities having an aggregate principal amount equal to the
aggregate Stated Amount times the number of Option Securities to be purchased
by the Underwriters upon the exercise of such option. The Firm Securities
and the Option Securities, if any, which the Underwriters elect to purchase
pursuant to Section 4 hereof will collectively be referred to herein as the
"Designated Securities". The Common Stock will have attached thereto rights
(the "Rights") issued pursuant to a Rights Agreement (the "Rights Agreement")
dated as of December 31, 1996 between the Company and First Chicago Trust
Company of New York, as Rights Agent. The Purchase Contracts, the Purchase
Contract Agreement and the Pledge Agreement are herein collectively referred
to as the "PEPS Agreements".
The Company will own all of the beneficial ownership interests
represented by the common securities (the "Common Securities" and, together
with the Trust Preferred Securities, the "Trust Securities") of the Trust.
Concurrently with the issuance of the Trust Preferred Securities and the
Company's purchase of all of the Common Securities, the Trust will invest the
proceeds of each thereof in the Company's Senior Deferrable Notes due
November 16, 2004 (the "Senior Deferrable Notes") to be issued pursuant to an
Indenture, dated as of November 1, 1990 as supplemented by a Twelfth
Supplemental Indenture dated as of the Closing Date (the "Indenture"),
between the Company and Bank One Trust Company, NA (formerly The First
National Bank of Chicago), as trustee (the "Indenture Trustee"). The Company
will guarantee (the "Guarantee") the Trust Securities to the extent set forth
in a Guarantee Agreement (the "Guarantee Agreement") to be entered into
between the Company and Bank One Trust Company, NA, as trustee (the
"Guarantee Trustee"), for the benefit of the holders from time to time of the
Trust Securities. The Trust Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust (the "Amended
Declaration"), among the Company, as Sponsor, Dale J. Wolf, Ellen E.
Fairchild and Kenneth C. Jones, as trustees (the "Regular Trustees"), Bank
One Trust Company, NA, as property trustee (the "Property Trustee"), Bank One
Delaware, Inc. as the Delaware Trustee (the "Delaware Trustee" and, together
with the Property Trustee and the Regular Trustees, the "Trustees"), and the
holders from time to time of the undivided beneficial ownership interests in
the assets of the Trust. The Company together with the Trust shall be
hereinafter referred to as the "Issuers".
1. Particular sales of Designated Securities may be made from time to
time to the
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Underwriters of such Designated Securities, for whom the firms designated as
representatives of the Underwriters of such Designated Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Issuers to sell any
of the PEPS Units or as an obligation of any of the Underwriters to purchase
any of the PEPS Units. The obligation of the Issuers to issue and sell any
of the PEPS Units and the obligation of any of the Underwriters to purchase
any of the PEPS Units shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each Pricing
Agreement shall specify the aggregate number of Firm Securities, the
aggregate numbers of Option Securities, if any, the initial public offering
price of such Firm and Option Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased by
each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Firm and Option Securities and payment therefor. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts),
and may be evidenced by an exchange of telegraphic communications or any
other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. Each of the Issuers jointly and severally represents and
warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement or registration statements relating
to the registration of certain securities of the Issuers including the
PEPS Units, the Purchase Contracts, the Trust Preferred Securities, the
Guarantee, the Senior Deferrable Notes (as hereafter defined) and the
Common Stock has been filed with the Securities and Exchange Commission
(the "Commission") on Form S-3; such registration statement or
registration statements and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement
or registration statements, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives
for each of the other Underwriters have been declared effective by the
Commission in such form and the Indenture, the Amended Declaration and
the Guarantee Agreement were qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); except for the Form 8-K
filed with the Commission on September 23, 1999, no other document with
respect to such registration statement or registration statements or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order suspending
the effectiveness of such registration statement or registration
statements has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or registration statements or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
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Prospectus"); the various parts of such registration statement or
registration statements, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained therein
at the time such part of the registration statement or registration
statements became effective, each as amended at the time such part of
registration statement or registration statements became effective,
being hereinafter called the "Registration Statement"; the prospectus
relating to the PEPS Units, the Purchase Contracts, the Trust Preferred
Securities, the Senior Deferrable Notes, the Guarantee and the Common
Stock, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus, as amended
or supplemented, shall be deemed to refer to the Prospectus, as amended
or supplemented, in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
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; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
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; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Issuers by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus, as amended or supplemented, relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further
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amendments of supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder, and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Issuers by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus, as amended or supplemented, relating to such Designated
Securities;
(d) The Trust has no subsidiaries. Neither the Trust nor the
Company (including all of its subsidiaries taken as a whole, each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Trust or the Company and its Subsidiaries taken as a whole, or
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the capital stock, or material increase in the short-term debt or
long-term debt, of the Company or any of its Subsidiaries or any
material adverse change, or any development involving, or which may
reasonably be expected to involve, a prospective material adverse change
in or affecting the condition (financial or other), results of
operations, business, prospects, net worth or assets of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) This Agreement and any applicable Pricing Agreement have been
duly authorized, executed and delivered by the Trust and the Company and
conform in all material respects to the descriptions thereof in the
Prospectus, as amended or supplemented, with respect to such Designated
Securities;
(g) The Designated Securities and the PEPS Agreements have been
duly authorized and, at the Closing Date or, in the case of Purchase
Contracts constituting part of the Option Securities, the Option Closing
Date, will have been duly executed and delivered by the Company, and, as
of the Closing Date or the Option Closing Date, as the case may be,
assuming due authorization, execution and delivery by parties other than
the Company thereunder, the PEPS Agreements will be valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency or
similar laws relating to or affecting creditors' rights generally and
general principles of equity. The Designated Securities and the PEPS
Agreements conform in all material respects to the descriptions thereof
contained in the Prospectus;
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(h) The shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts upon settlement thereof have
been duly and validly authorized and reserved for issuance. Such Common
Stock, when issued and delivered in accordance with the provisions of
the PEPS Agreements, will be duly authorized, validly issued, fully paid
and non-assessable, and the issuance of such Common Stock will not be
subject to any preemptive or similar rights;
(i) The shares of Common Stock outstanding prior to the issuance
of the Designated Securities have been duly authorized and are validly
issued, fully paid and non-assessable;
(j) The authorized capital stock of the Company conforms as to
legal matters as to the description thereof contained in the Prospectus;
(k) The Rights Agreement has been duly authorized, executed and
delivered by the Company;
(l) The Remarketing Agreement (the "Remarketing Agreement") to be
entered into by and among the Company, the Trust and Morgan, Stanley &
Co. Incorporated, as Remarketing Agent, has been duly authorized by the
Company and when validly executed and delivered by the Company will
constitute a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights and remedies generally,
as from time to time in effect, and by applicable principles of equity
and considerations of public policy (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
the Remarketing Agreement will conform to the description thereof in the
Prospectus;
(m) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full power
and authority (corporate and other) to own or lease its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business and is in good standing in each jurisdiction in
which the character of the business conducted by it or the location of
the properties owned or leased by it makes such qualification necessary.
All of the shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable. All of
the outstanding shares of capital stock of each Subsidiary are owned
directly or indirectly by the Company (except for United Networks
Limited, of which the Company owns 79% of the outstanding shares of
capital stock), free and clear of any claim, lien, encumbrance or
security interest except as otherwise disclosed in writing to the
Representatives;
(n) The Indenture and the Senior Deferrable Notes to be issued
thereunder, have been duly authorized and, at the Closing Date, will have
been duly executed and delivered and will constitute,
and the Senior Deferrable Notes, when duly executed and authenticated in
accordance with the Indenture and issued and delivered under the
circumstances provided in the Prospectus, as amended or supplemented,
will constitute,
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valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights and remedies generally,
as from time to time in effect, and by applicable principles of equity
and considerations of public policy (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
the Indenture and the Senior Deferrable Notes will conform to the
description thereof in the Prospectus;
(o) The Amended Declaration has been duly authorized by the
Company, and when duly executed by the proper officers of the Company
and the Regular Trustees (assuming due execution and delivery by the
Property Trustee and the Delaware Trustee) and delivered by the Company,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general principles of equity
(whether considered in a proceeding in equity or at law);
(p) Each of the Guarantee and the Guarantee Agreement has been
duly authorized and when validly executed and delivered by the Company
will constitute a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally or any Pricing
Agreement and general principles of equity (regardless of whether
enforceability is sought in a proceeding in equity or at law); and the
Guarantee will conform to the description thereof in the Prospectus;
(q) Neither the Company nor any of its Subsidiaries is, nor with the
giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution, delivery and performance by the
Company of its obligations under, this Agreement or any Pricing Agreement,
the PEPS Agreements, the Amended Declaration, the Guarantee Agreement, the
Indenture and the Remarketing Agreement and the consummation of the
transactions (the "Transactions") contemplated in this Agreement or any
Pricing Agreement, the PEPS Agreements, the Amended Declaration, the
Guarantee Agreement, the Indenture and the Remarketing Agreement, nor will
compliance by the Company with its obligations under this Agreement, the
PEPS Agreements, the Amended Declaration and the Remarketing Agreement, the
issuance and delivery of the PEPS Units, the Guarantee, the Senior
Deferrable Notes and the Common Stock, result in a violation of, or
constitute a default under, (1) the certificate of incorporation, by-laws
or other governing documents of the Company or any of its Subsidiaries,
(2) any agreement, indenture or other instrument to which the Company or
any of its Subsidiaries is a party or by which any of them is bound, or to
which any of their properties is subject, or (3) any law, rule,
administrative regulation or decree of any court or any governmental agency
or body having jurisdiction over the Company, its Subsidiaries or any of
their properties, or result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of the Company or
any of its Subsidiaries which
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would be material to the Company and its Subsidiaries taken as a whole.
Except for permits and similar authorizations required under the Act,
the Trust Indenture Act, the Federal Power Act, the laws of the States
of Colorado and West Virginia and the securities or Blue Sky laws of
certain jurisdictions, and except for such permits and authorizations as
have been obtained, no consent, approval, authorization or order of any
court, governmental agency or body or financial institution is required
for the issuance of the PEPS Units, the Guarantee, the Senior Deferrable
Notes or the Common Stock or the consummation of the Transactions;
(r) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act
of the State of Delaware (the "Delaware Trust Act") with the trust power
and authority to own property and conduct its business as described in
the Prospectus, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument and after the Trust executes the Amended Declaration, the
Trust will not be a party to or bound by any agreement or instrument
other than this Agreement, the Remarketing Agreement, the Amended
Declaration and the other agreements entered into in connection with the
transactions contemplated hereby; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement, the Remarketing Agreement and the
Amended Declaration and described in the Prospectus; and the Trust is
not a party to or subject to any action, suit or proceeding of any
nature;
(s) The Amended Declaration has been duly authorized by the
Company, as Sponsor, and, when duly executed and delivered by the
Company, as Sponsor, and the Regular Trustees (assuming due
authorization, execution and delivery by the Property Trustee and the
Delaware Trustee), will constitute a legal, valid and binding obligation
of the Trust, enforceable against the Trust in accordance with its
terms, except as the enforceability thereof may be limited by the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general principles of equity
(whether considered in a proceeding in equity or at law), and will
conform to the description thereof contained in the Prospectus;
(t) The Trust Securities, upon issuance and delivery and payment
therefor in the manner described herein, will be duly authorized,
validly issued, fully paid and, in the case of the Trust Preferred
Securities, non-assessable and will conform to the descriptions
contained in the Prospectus;
(u) The Remarketing Agreement has been duly authorized by the
Trust and will be, when delivered by the Trust, duly executed and
delivered by the Trust;
(v) The Trust is not, nor with the giving of notice or lapse of time
or both would be, in violation of or in default under, nor will the
execution, delivery and performance by the Trust of its obligations under
this Agreement or any Pricing Agreement; the Amended Declaration, the
Remarketing Agreement and the Trust Securities by the Trust, the purchase
of the Senior Deferrable Notes by the Trust from the Company, the
distribution of the Senior Deferrable Notes upon the liquidation of the
Trust in the circumstances
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contemplated by the Amended Declaration, and the consummation by the
Trust of the transactions contemplated herein and in the Amended
Declaration and the Remarketing Agreement (the "Trust Transactions"),
result in a violation of any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Trust
or any of its assets. Except for permits and similar authorizations
required under the Act, the qualification of the Amended Declaration
under the Trust Indenture Act, the Exchange Act, the Federal Power Act,
the laws of the States of Colorado and West Virginia and the securities
or Blue Sky laws of certain jurisdictions, and except for such permits
and authorizations as have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required for the consummation of the Trust
Transactions;
(w) The Trust, the Company and its Subsidiaries have good and
marketable title to all material real and personal property owned by
them, in each case free and clear of all mortgages, liens, encumbrances
and defects, except such as are described or referred to in the
Prospectus, as amended or supplemented, or such as do not materially
affect the values of such property and do not interfere with the use
made or proposed to be made of such property by the Trust or the Company
or such Subsidiaries; and any real property and buildings held under
lease by the Trust and the Company and its Subsidiaries are held by them
under valid, existing and enforceable leases with such exceptions as are
not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Trust and the Company or such
Subsidiaries;
(x) Except as described in the Prospectus, as amended or
supplemented, there is no litigation or governmental proceeding to which
the Trust or the Company or any of its Subsidiaries is a party or to
which any property of the Trust, or the Company or any of its
Subsidiaries is subject or which is pending or, to the knowledge of the
Trust or the Company, contemplated against the Trust or the Company or
any of its Subsidiaries which might result in any material adverse
change in the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Trust and the Company
and its Subsidiaries taken as a whole;
(y) The Trust, the Company and its Subsidiaries are not in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it is subject which violation would have a
material adverse effect on the condition (financial or other), results
of operations, business, prospects, net worth or assets of the Trust and
the Company and its Subsidiaries taken as a whole;
(z) The Issuers have not distributed and will not distribute prior
to the Closing Date or the Option Closing Date (each as defined herein)
any offering material in connection with the offering and sale of the
Designated Securities other than the Registration Statement, the
Prospectus, the Prospectus Supplement, or other materials, if any,
permitted by the Act;
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
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accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(bb) The accountants who have audited and reported upon the
financial statements filed with the Commission as part of the
Registration Statement and the Prospectus, as amended or supplemented,
are independent accountants as required by the Act and the regulations
thereunder. The consolidated financial statements and schedules
(including the related notes) included or incorporated by reference in
the Registration Statement or Prospectus, as amended or supplemented,
fairly present the consolidated financial position, the results of
operations and changes in financial condition of the entity or entities
to which such statements relate at the respective dates and for the
respective periods to which they apply. Such financial statements have
been prepared in accordance with generally accepted accounting
principles consistently applied, except as set forth in the Registration
Statement and Prospectus, as amended or supplemented. The other
financial and statistical information and data set forth in the
Registration Statement and the Prospectus, as amended or supplemented,
are fairly presented and have been prepared on a basis consistent with
such financial statements and the books and records of the entities
purported to be shown thereby;
(cc) Neither the Trust nor the Company is an "investment company"
required to register under, or an "affiliated person" of, or "promoter"
or "principal underwriter" for, an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended, nor will
be required to so register, nor will be such after giving effect to the
transactions contemplated hereby; and
(dd) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries will be affected by the Year
2000 Problem (that is, any significant risk that computer hardware or
software applications used by the Company and its subsidiaries will not,
in the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000); as a result of such review, (i) the
Company has no reason to believe, and does not believe, that (A) there
are any issues related to the Company's preparedness to address the Year
2000 Problem that are of a character required to be described or
referred to in the Registration Statement or Prospectus which have not
been accurately described in the Registration Statement or Prospectus
and (B) the Year 2000 Problem will have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, or result in any material loss or interference with the business
or operations of the Company and its subsidiaries, taken as a whole; and
(ii) the Company reasonably believes, after due inquiry, that the
suppliers, vendors, customers or other material third parties used or
served by the Company and such subsidiaries are addressing or will
address the Year 2000 Problem in a timely manner, except to the extent
that a failure to address the Year 2000 Problem by any supplier, vendor,
customer or material third party would not have a material adverse
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effect on the condition, financial or otherwise, or on the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
4. Delivery to the Underwriters of and payment for the Firm
Securities shall be made at the place and time and date specified in the
applicable Pricing Agreement or at such other place and time and date as the
Representatives and the Issuers may agree upon in writing (the "Closing
Date").
Delivery to the Underwriters of and payment for any Option
Securities shall be made at the place specified in the applicable Pricing
Agreement at such time and date (the "Option Closing Date"), which may be the
same as the Closing Date but shall in no event be earlier than the Closing
Date nor earlier than three nor later than ten business days after the giving
of the notice hereinafter referred to, as shall be specified in a written
notice from the Representatives on behalf of the Underwriters to the Issuers
of the determination of the Underwriters to purchase a number, specified in
such notice, of Option Securities. Such notice may be given to the Issuers
within 30 days after the date of the applicable Pricing Agreement.
Except as set forth in the Pricing Agreement, one or more
fully-registered global certificates for the Firm Securities and Option
Securities to be purchased by each Underwriter pursuant to the Pricing
Agreement relating thereto, in definitive form registered in the name of the
nominee of The Depository Trust Company, shall be delivered by or on behalf
of the Issuers to The Depository Trust Company, which shall release such Firm
Securities and Option Securities to the accounts of the Representatives for
the account of such Underwriter, at Closing Date or the Option Closing Date,
as the case may be, against payment by such Underwriter or on its behalf of
the purchase price therefor by certified or official bank check or checks,
payable to the order of the Issuer in the funds specified in such Pricing
Agreement.
The Trust Preferred Securities underlying the PEPS Units will be
pledged with the Collateral Agent to secure the holders' obligations to
purchase Common Stock under the Purchase Contracts. Such pledge shall be
effected by the transfer to the Securities Intermediary of the Trust
Preferred Securities to be pledged to the Collateral Agent in accordance with
the Pledge Agreement.
5. Each of the Issuers jointly and severally agrees with each of
the Underwriters of any Designated Securities:
(a) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any
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supplement to the Registration Statement or Prospectus, as amended or
supplemented, after the date of the Pricing Agreement relating to such
Designated Securities and prior to the later of the Closing Date or the
Option Closing Date, if any, for the Designated Securities which shall
be disapproved by the Representatives for the Designated Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after the Closing Date, if
any, and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Designated Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof of
the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the PEPS Units, the Common Stock,
the Preferred Securities and the Guarantee, of the suspension of the
qualification of such Preferred Securities or the Guarantee for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such sto order or of any such order preventing or
suspending the use of any prospectus relating to the PEPS Units, the
Common Stock, the Preferred Securities and the Guarantee or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the PEPS Units, the
Common Stock, the Preferred Securities and the Guarantee for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such PEPS
Units, Common Stock, Preferred Securities, the Guarantee and the Senior
Deferrable Notes provided that in connection therewith neither the Trust
nor the Company shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus, as
amended or supplemented, in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the PEPS
Units, the Common Stock, the Preferred Securities and the Guarantee and if
at such time any event shall have occurred as a result of which the
Prospectus, as then amended or supplemented, would include an 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 when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to
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<PAGE>
comply with the Act or the Exchange Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance;
(d) In the case of the Company, to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c)), an earnings statement of the Company and
its Subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158);
(e) The Issuers hereby agree that, without the prior written
consent of Morgan Stanley & Co. Incorporated on behalf of the
Underwriters, they will not, during the period beginning from the date
of the Pricing Agreement for such Designated Securities and continuing
to and including the earlier of (i) the date, after the later of the
Closing Date or the Option Closing Date, if any, on which the
distribution of the Designated Securities ceases as determined by Morgan
Stanley & Co. Incorporated and (ii) the date which is 90 days after the
later of the Closing Date or the Option Closing Date, if any, for the
Designated Securities, (i) register, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Designated
Securities, Purchase Contracts or shares of Common Stock or any
securities convertible into or exercisable or exchangeable for
Designated Securities, Purchase Contract or Common Stock or (ii) enter
into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the
Designated Securities, Purchase Contracts or Common Stock, whether any
such transaction described in clause (i) or (ii) above is to be settled
by delivery of Designated Securities, Purchase Contracts or Common Stock
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Designated Securities to be sold hereunder,
(B) the issuance by the Company of shares of Common Stock pursuant to,
or the grant of options under the Company's existing stock option,
employee benefit, director benefit or dividend reinvestment plans or (C)
the issuance of shares of Common Stock by the Company in connection with
future acquisitions provided that the recipients of such shares agree to
be bound by the transfer restrictions set forth herein;
(f) To the extent necessary to comply with New York Stock Exchange
rules and regulations or the rules and regulations of any other exchange
on which the PEPS Units are listed, to furnish to the holders of PEPS
Units as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries audited by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the first such fiscal quarter ending after
the effective date of the Registration Statement), consolidated summary
financial information of the Company and its Subsidiaries for such
quarter in reasonable detail;
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<PAGE>
(g) To cause the Designated Securities and the Common Stock, to be
issued and sold pursuant to the Purchase Contracts, to be approved for
listing subject only to official notice of issuance on the New York
Stock Exchange;
(h) The Issuers will apply the net proceeds of the sale of the
Designated Securities as set forth in the Prospectus, as amended or
supplemented.
6. The Issuers jointly and severally covenant and agree with the
several Underwriters that the Issuers will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Trust's and the
Company's counsel and accountants in connection with the registration of the
PEPS Units, the Common Stock, the Preferred Securities, the Guarantee and the
Senior Deferrable Notes under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters
and dealers; (ii) the costs incident to the authorization, issuance, sale and
delivery of the Senior Deferrable Notes, Trust Securities, Guarantees,
Purchase Contracts, Common Stock to be issued and sold pursuant to the
Purchase Contracts and PEPS Units and any taxes payable in connection
therewith; (iii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Blue Sky and/or
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Designated Securities; (iv) all
expenses in connection with the qualification of the PEPS Units, the Common
Stock, the Preferred Securities, the Purchase Contracts, the Guarantee and
the Senior Deferrable Notes for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and/or legal investment surveys; (v) any filing
fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Designated
Securities; (vi) the cost of preparing certificates for the Designated
Securities, including all taxes on the transfer and sale of the Designated
Securities; (vii) the fees and expenses of any transfer agent and registrant
for the Designated Securities; (viii) any fees charged by securities services
for rating the Designated Securities; (ix) all costs and expenses incident to
listing the Designated Securities on the New York Stock Exchange and the cost
of registering the Designated Securities under Section 12 of the Exchange
Act; (x) the cost of qualifying the Designated Securities with The Depository
Trust Company; and (xi) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 12 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Designated Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Issuers
in or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Closing Date or the Option
Closing Date for the Designated Securities, true and correct, the condition
that the Issuers shall have performed all of their obligations hereunder
theretofore to be performed, and the following additional conditions:
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(a) The Prospectus, as amended or supplemented, in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof or
suspending the qualification of the Indenture, the Guarantee Agreement
or the Amended Declaration shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Milbank, Tweed, Hadley & McCloy LLP, counsel for the
Underwriters, shall have furnished to the Representatives such opinion
or opinions, dated the Closing Date for such Designated Securities, with
respect to the validity of the Designated Securities, the Registration
Statement, the Prospectus, as amended or supplemented, and other related
matters as the Representatives may reasonably request, such counsel
being able to rely on the opinions, dated the Closing Date for the
Designated Securities of Blackwell Sanders Pepper Martin LLP, of
Richards, Layton & Finger, P.A. or of local counsel, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Blackwell Sanders Pepper Martin LLP, counsel for the Issuers,
shall have furnished to the Representatives their written opinion, dated
the Closing Date for the Designated Securities, in form and substance
satisfactory to the Representatives and their counsel, to the effect
that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, has duly obtained or has succeeded to and holds all
material franchises and other governmental and corporate authority
necessary to carry on the public utility business in which it is
engaged and to own, lease and operate the properties in use in such
business and the maintenance of such franchises and other authority
is not subject to any burdensome restriction or condition of an
unusual character (except as described in the Registration
Statement);
(ii) Each Subsidiary of the Company (other than the Company's
foreign subsidiaries) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure so to qualify would have a materially adverse effect on the
condition (financial or other), results of operations, business,
prospects, net worth or assets of the Company and its Subsidiaries
taken as a whole;
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer
of, (A) any shares of Common Stock issuable pursuant to the
Purchase Contracts or (B) the Senior
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Deferrable Notes pursuant to the Company's charter or by-laws or
any agreement or other instrument known to such counsel;
(iv) The Designated Securities and the PEPS Agreements have
been duly authorized and, at the Closing Date or, in the case of
Purchase Contracts constituting part of the Option Securities, the
Option Closing Date, will have been duly executed and delivered by
the Company, and, as of the Closing Date or the Option Closing
Date, as the case may be, assuming due authorization, execution and
delivery by parties other than the Company thereunder, the PEPS
Agreements will be valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms,
subject to applicable bankruptcy, insolvency or similar laws
relating to or affecting creditors' rights generally and general
principles of equity. The Designated Securities and the PEPS
Agreements conform in all material respects to the descriptions
thereof contained in the Prospectus;
(v) The shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts upon settlement thereof
have been duly and validly authorized and reserved for issuance.
Such Common Stock, when issued and delivered in accordance with the
provisions of the PEPS Agreements, will be duly authorized, validly
issued, fully paid and non-assessable, and the issuance of such
Common Stock will not be subject to any preemptive or similar
rights;
(vi) Each of the Guarantee Agreement and the Guarantee has
been duly authorized and when validly executed and delivered by the
Company will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law);
and the Guarantee Agreement and the Guarantee conform to the
description thereof in the Prospectus, as amended or supplemented;
(vii) The Amended Declaration has been duly authorized by the
Company, and when duly executed by the proper officers of the
Company and the Regular Trustees (assuming due execution and
delivery by the Property Trustee and the Delaware Trustee) and
delivered by the Company, will constitute a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law); and the Amended
Declaration conforms to the description thereof in the Prospectus;
(viii) The Indenture and the Senior Deferrable Notes to be
issued
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thereunder, have been duly authorized by the Company; the Indenture
has been duly qualified under the Trust Indenture Act, and, at the
Closing Date will have been duly executed and delivered and will
constitute, and the Senior Deferrable Notes, when duly executed and
authenticated in accordance with the Indenture and issued and
delivered under the circumstances provided in the Prospectus, as
amended or supplemented, will constitute, valid and binding
obligations of the Company enforceable in accordance with their
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law);
and the Indenture and the Senior Deferrable Notes conform to the
descriptions thereof in the Prospectus;
(ix) The Purchase Contract Agreement, the Pledge Agreement
and the Purchase Contracts constituting a part of the Designated
Securities being delivered at the Closing Date or Option Closing
Date, as the case may be, and the Designated Securities have been
duly authorized, executed and delivered by the Company, and each is
a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principals of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
provided, however, that based on a review of applicable case law,
upon the occurrence of a Termination Event, Section 365(e)(1) of
the Bankruptcy Code (11 U.S.C. Sections 101-1330, as amended)
should not substantively limit the provisions of Section 3.16 and
5.8 of the Purchase Contract Agreement and Section 5.4 of the
Pledge Agreement that require termination of the Purchase Contracts
and release of the Collateral Agent's security interest in the
Trust Preferred Securities or the Treasury Securities;
(x) The Pledge Agreement creates in favor of the Collateral
Agent for the benefit of the Company to secure the obligations of
the holder under the Purchase Contracts, a valid and perfected
security interest under the New York Uniform Commercial Code as in
effect on the date hereof in the State of New York in the Pledged
Trust Preferred Securities (as defined in the Pledge Agreement) and
the Pledged Treasury Securities (as defined in the Pledge
Agreement) from time to time credited to the Collateral Account;
(xi) The Company has full corporate power and corporate
authority to enter into and perform its obligations under this
Agreement, the PEPS Units, the Common Stock and the Pricing
Agreement with respect to the Designated Securities and to issue
the Senior Deferrable Notes and the Guarantee;
(xii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized, executed
and delivered by each of the Trust and the Company;
(xiii) The orders of the Federal Energy Regulatory Commission,
the State
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Corporation Commission and the Public Utilities Commission of the
State of Colorado and the Public Service Commission of West
Virginia authorizing the issuance and sale of the Designated
Securities, the Senior Deferrable Note, the Guarantee and the
Purchase Contracts are in effect at the Closing Date and no other
approval, authorization, consent or order of any federal, state or
local commission or governmental authority (other than under state
securities or Blue Sky laws as to which such counsel is not called
upon to express an opinion) is required for the issuance and sale
of the Designated Securities, the Senior Deferrable Note, the
Guarantee and the Purchase Contracts, the performance by the Trust
or the Company of its other obligations under this Agreement or any
applicable Pricing Agreement, the issuance and sale of the Senior
Deferrable Note, the capital contribution by the Company to the
Trust (the "Contribution"), the issuance and sale of the Designated
Securities, the issuance and sale of the Senior Deferrable Note and
the issuance and sale of the Guarantee, are in conformity with each
such approval, authorization, consent and order;
(xiv) After due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the
Issuer or the Company or its Subsidiaries is a party or to which
any of the properties of the Issuer or the Company is subject that
is required to be described in the Registration Statement or the
Prospectus, as amended or supplemented, and is not so described or
of any contract or other document that is required to be described
in the Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as an exhibit to the Registration
Statement that is not described or filed as required;
(xv) The statements made in the Registration Statement and
the Prospectus, as amended or supplemented, under the captions,
"Prospectus Supplement Summary", "Description of the PEPS Units",
"Description of the Purchase Contracts", "Certain Provisions of the
Purchase Contracts, the Purchase Contract Agreement and the Pledge
Agreement", "Description of the Trust Preferred Securities",
"Description of the Senior Deferrable Notes", "Description of the
Guarantee", "Underwriting", "ERISA Considerations", "The Trust",
"Description of Common Stock", "Description of Debt Securities",
"Description of Subordinated Debentures", "Description of Trust
Preferred Securities", "Description of the Guarantee", "Description
of Stock Purchase Contracts And Stock Purchase Units", insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings;
(xvi) The execution, delivery and performance by the Trust and
the Company of this Agreement and the Pricing Agreement with respect
to the Designated Securities, the performance and consummation by the
Company of the Transactions, the execution, delivery and performance
by the Company of the Guarantee Agreement, the Indenture, the PEPS
Agreements and the Remarketing Agreement, and the issuance of the
Guarantee, the Senior Deferrable Note, the
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Common Stock and the PEPS Units will not violate any provision of
applicable law or the charter or the by-laws of the Company or any
agreement or other instrument binding upon the Trust or the Company
known to such counsel;
(xvii) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus, as amended or supplemented;
(xviii) The shares of Common Stock outstanding prior to the
issuance of the Designated Securities have been duly authorized and
are validly issued, fully paid and non-assessable;
(ix) The unissued shares of Common Stock to be issued and
sold by the Company pursuant to the Purchase Contracts have been
duly and validly authorized and reserved for issuance and when
issued and delivered in accordance with the provisions of the
Purchase Contracts, will be duly and validly issued, fully paid and
non-assessable.
(xx) The issuance and sale of the PEPS Units do not
contravene the Commodity Exchange Act or the regulations of the
Commodity Futures Trading Commission.
(xxi) The documents incorporated by reference in the
Prospectus, as amended or supplemented (except the financial
statements and related schedules and other financial information
and data therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and they have no reason to believe that any of such
documents (except for the financial statements and related
schedules and other financial information and data therein, as to
which such counsel need express no opinion), when they became
effective or were so filed, as the case may be, contained in the
case of a registration statement which became effective under the
Act, 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, or, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, 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 when such documents were so filed, not misleading;
(xxii) The Registration Statement has become effective under
the Act, and the Indenture, the Amended Declaration and the
Guarantee Agreement were qualified under the Trust Indenture Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending before or contemplated by the
Commission and all filings required by Rule 424 under the Act have
been made; the Registration Statement and the Prospectus, as
amended or supplemented, and
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any further amendments and supplements thereto made by either the
Trust or the Company prior to the Closing Date for the Designated
Securities (except for the financial statements and related
schedules and the other financial information and data therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder; they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by
either the Trust or the Company prior to the Closing Date for the
Designated Securities (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) 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 or that, as
of its date, the Prospectus, as amended or supplemented, or any
further amendment or supplement thereto made by either the Trust or
the Company prior to the Closing Date for the Designated Securities
(except for the financial statements and related schedules and the
other financial information and data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
ere made, not misleading or that, as of the Closing Date for the
Designated Securities, either the Registration Statement or the
Prospectus, as amended or supplemented, or any further amendment or
supplement thereto made by either the Trust or the Company prior to
the Closing Date for the Designated Securities (except for the
financial statements and related schedules and the other financial
information and data therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated by
reference into the Prospectus, as amended or supplemented, or
required to be described in the Registration Statement or the
Prospectus, as amended or supplemented, which are not filed or
incorporated by reference or described as required; and
(xxiii) Under current law and interpretations of current law
issued by the Commission, neither the Trust nor the Company is an
"investment company" required to register under, or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended, nor will be required to so
register, nor will be such after giving effect to the transactions
contemplated hereby.
In giving the foregoing opinions, such counsel may rely on (1) the
opinion of Richards, Layton & Finger, with respect to all matters of
Delaware law, (2) the opinions of local counsel, with respect to the
opinion set forth in paragraph (i) above, (3) the opinions heretofore
rendered by Gary J. Brouillette, Esq. and Messrs. Gage & Tucker with
respect to the opinions set forth in paragraphs (iii), (v) and (xviii)
above and (4) the
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opinions of local counsel and the opinion of Hogan & Hartson L.L.P.,
with respect to the opinion set forth in paragraph (xiii) above. Such
counsel shall state that you and they are justified in relying on such
opinions, policies and certificates.
(d) Richards, Layton & Finger, P.A. shall have furnished to the
Underwriters its written opinion, as special Delaware counsel to the
Issuers, addressed to the Underwriters and dated such Closing Date, in
form and substance satisfactory to the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Trust Act.
Under the Delaware Trust Act and the Amended Declaration, the Trust
has the business trust power and authority to own property and to
conduct its business as described in the Prospectus, as amended and
supplemented, and to enter into and perform its obligations under
this Agreement and the Trust Securities.
(ii) The Common Securities have been duly authorized by the
Amended Declaration and, when issued and delivered by the Trust to
the Company against payment therefor in accordance with the terms
of the Amended Declaration and as described in the Prospectus, will
be validly issued and (subject to the terms in this paragraph)
fully paid undivided beneficial interests in the assets of the
Trust (such counsel may note that the holders of Common Securities
will be subject to the withholding provisions of Section 10.4 of
the Amended Declaration, will be required to make payment or
provide indemnity or security as set forth in the Amended
Declaration and will be liable for the debts and obligations of the
Trust to the extent provided in Section 9.1(b) of the Amended
Declaration); under the Delaware Trust Act and the Amended
Declaration, the issuance of the Common Securities is not subject
to preemptive rights.
(iii) The Trust Preferred Securities have been duly
authorized by the Amended Declaration and, when issued and
delivered in accordance with the terms of the Amended Declaration
against payment therefor as set forth herein, the Trust Preferred
Securities will be validly issued and (subject to the terms in this
paragraph) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, the Holders of the Trust
Preferred Securities will be entitled to the benefits of the
Amended Declaration (subject to the limitations set forth in clause
(v) below) and will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware (such counsel may note that the holders of Trust Preferred
Securities will be subject to the withholding provisions of Section
10.4 of the Amended Declaration and will be required to make
payment or provide indemnity or security as set forth in the
Amended Declaration); under the Delaware Trust Act and the Amended
Declaration, the issuance of the Trust Preferred Securities is not
subject to preemptive rights.
(iv) Under the Delaware Trust Act and the Amended Declaration,
all necessary trust action has been taken to duly authorize the
execution, delivery and
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performance by the Trust of the Underwriting Agreement and the
Remarketing Agreement.
(v) Assuming the Amended Declaration has been duly authorized
by the Company and has been duly executed and delivered by the
Company and the Regular Trustees, and assuming due authorization,
execution and delivery of the Amended Declaration by the Property
Trustee and the Delaware Trustee, the Amended Declaration
constitutes a valid and binding obligation of the Company and the
Regular Trustees, enforceable against the Company and the Regular
Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution.
(vi) The issuance and sale by the Trust of the Trust
Securities, the purchase by the Trust of the Senior Deferrable
Notes, the execution, delivery and performance by the Trust of the
Underwriting Agreement and the Pricing Agreement, the consummation
by the Trust of the transactions contemplated by the Underwriting
Agreement and compliance by the Trust with its obligations
thereunder do not violate any of the provisions of the Certificate
of Trust or the Amended Declaration or any applicable Delaware law
or administrative regulation.
(vii) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware Trustee as
required by the Delaware Trust Act and the filing of documents with
the Secretary of State of Delaware) or employees in the State of
Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any
Delaware court or Delaware governmental authority or agency (other
that as may be required under the securities or blue sky laws of
the state of Delaware, as to which such counsel need express no
opinion) is necessary or required to be obtained by the Trust
solely in connection with the due authorization, execution and
delivery by the Trust of the Underwriting Agreement or the
offering, issuance, sale or delivery of the Trust Preferred
Securities.
(e) A written opinion of counsel shall have been furnished to the
Underwriters by counsel to Bank One Trust Company, NA, as Property Trustee
and Guarantee Trustee, addressed to the Underwriters and dated such Closing
Date, in form and substance satisfactory to the Underwriters, to the effect
that:
(i) Each of the Property Trustee and the Guarantee Trustee is a
national banking association with all necessary power and authority
to execute and deliver and perform their respective obligations under
the terms of the Amended
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Declaration and the Guarantee Agreement.
(ii) The execution, delivery and performance by the Property
Trustee of the Amended Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Guarantee Agreement
have been duly authorized by all necessary corporate action on the
part of the Property Trustee and the Guarantee Trustee,
respectively. The Amended Declaration has been duly executed and
delivered by the Property Trustee and the Guarantee Agreement has
been duly executed and delivered by the Guarantee Trustee and each
constitutes the valid and binding agreement of the Property Trustee
and the Guarantee Trustee, respectively, enforceable against the
Property Trustee and the Guarantee Trustee, respectively, in
accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(iii) The execution, delivery and performance of the Amended
Declaration and the Guarantee Agreement by the Property Trustee and
the Guarantee Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the Property
Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal banking authority is
required for the execution, delivery or performance by the Property
Trustee and the Guarantee Trustee of the Amended Declaration and
the Guarantee Agreement, respectively.
(f) A written opinion of counsel shall have been furnished to the
Underwriters by counsel to Bank One Delaware, Inc., as Delaware Trustee,
addressed to the Underwriters and dated such Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) The Delaware Trustee has been duly incorporated and is
validly existing as a Delaware corporation in good standing under
the laws of the State of Delaware with all necessary power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of the Amended Declaration.
(ii) The execution, delivery and performance by the Delaware
Trustee of the Amended Declaration has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee. The
Amended Declaration has been duly executed and delivered by the
Delaware Trustee and constitutes the valid and binding agreement of
the Delaware Trustee enforceable against the Delaware Trustee in
accordance with its terms, subject to bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or
affecting the rights and remedies of creditors generally,
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the
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enforceability of provisions relating to indemnification or
contribution.
(v) The execution, delivery and performance of the Amended
Declaration by the Delaware Trustee do not conflict with or
constitute a breach of the charter or by-laws of the Delaware
Trustee.
(vi) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking
authority is required for the execution, delivery or performance by
the Delaware Trustee of the Amended Declaration.
(g) A written opinion of counsel shall have been furnished to
the Underwriters by counsel to Bank One Trust Company, NA, as Purchase
Contract Agent, addressed to the Underwriters and dated such Closing Date,
in form and substance satisfactory to the Underwriters, to the effect that:
(i) The Purchase Contract Agent is duly incorporated as a New
York banking corporation with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase
Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the PEPS Units
and the Treasury PEPS Units have been duly authorized by all
necessary corporate action on the part of the Purchase Contract
Agent. The Purchase Contract Agreement and the Pledge Agreement
have been duly executed and delivered by the Purchase Contract
Agent, and constitute the valid and binding agreements of the
Purchase Contract Agent, enforceable against the Purchase Contract
Agent in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase
Contract Agent does not conflict with or constitute a breach of the
charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal governmental
authority or agency is required for the execution, delivery or
performance by the Purchase Contract Agent of the Purchase Contract
Agreement and the Pledge Agreement.
(h) A written opinion of counsel shall have been furnished to the
Underwriters by counsel to Chase Manhattan Trust Company, National
Association, NA, as Collateral Agent and Securities Intermediary, addressed
to the Underwriters and dated such Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
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<PAGE>
(i) The Collateral Agent and Securities Intermediary are duly
incorporated as a New York banking corporation with all necessary
power and authority to execute, deliver and perform its obligations
under the Pledge Agreement.
(ii) The execution, delivery and performance by the
Collateral Agent and Securities Intermediary of the Pledge
Agreement have been duly authorized by all necessary corporate
action on the part of the Collateral Agent and Securities
Intermediary. The Pledge Agreement has been duly executed and
delivered by the Collateral Agent and Securities Intermediary, and
constitute the valid and binding agreements of the Collateral Agent
and Securities Intermediary, enforceable against the Collateral
Agent and Securities Intermediary in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Pledge
Agreement by the Collateral Agent and Securities Intermediary does
not conflict with or constitute a breach of the charter or by-laws
of the Collateral Agent and Securities Intermediary.
(iv) No consent, approval or authorization of, or
registration with or notice to, any state or federal governmental
authority or agency is required for the execution, delivery or
performance by the Collateral Agent and Securities Intermediary of
the Pledge Agreement.
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preference stock by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implication, its
rating of any of the Company's debt securities or preference stock;
(j) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market or in the over-the-counter market,
or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) there
shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse (iv) there shall have occurred such a
material adverse change in general economic, political or financial
conditions as to make it, in the judgment of a majority in interest of
the several Underwriters, impracticable or inadvisable to proceed with
the public offering
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or delivery of the PEPS Units being delivered on such Closing Date on
the terms and in the manner contemplated in the Prospectus.
(k) Blackwell Sanders Peper Martin LLP, special tax counsel for
the Issuers, shall have furnished to the Representatives at each Closing
Date their written opinion to the effect that: (i) the Trust will be
classified as a grantor trust for United States federal income tax
purposes and not as an association taxable as a corporation; (ii)
although the issues are not free from doubt, the Senior Deferrable Notes
should be classified as indebtedness of the Company and deductions for
interest on the Senior Deferrable Notes should not be disallowed under
section 163(l) of the Internal Revenue Code and (iii) the statements set
forth in the Prospectus under the caption "Certain United States Federal
Income Tax Consequences" insofar as they purport to constitute summaries
of matters of United States federal tax laws and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects.
(l) On the date of the Pricing Agreement for such Designated
Securities and at the Closing Date for the Designated Securities, Arthur
Andersen LLP and any of the other independent accountants of the Company
or the Subsidiaries who have certified the financial statements of the
Company and/or the Subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter, dated the date of the Pricing Agreement, and a letter, dated
such Closing Date, respectively, to the effect set forth in Annex II
hereto, and as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives.
(m) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture,
the Amended Declaration, the Guarantee Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Senior
Deferrable Note, the Trust Securities, the Guarantee, the Purchase
Contracts, the Common Stock to be issued and sold pursuant to the
Purchase Contracts, the Registration Statement, any Prospectus, as
amended or supplemented, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriters,
and the Issuers shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(n) (i) The Trust, the Company or any of the Subsidiaries shall
not have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, as
amended or supplemented, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, as amended or supplemented, and (ii) since the respective
dates as of which information is given in the Prospectus, as amended or
supplemented, there shall not have been any material change in the
capital stock, or material increase in the short-term debt or long-term
debt, of the
26
<PAGE>
Company or any of its Subsidiaries or any change, or any development
involving, or which may reasonably be expected to involve, a prospective
change in or affecting the condition (financial or other), results of
operations, business, prospects, net worth or assets of the Company and
its Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented, the effect
of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented.
(o) The Federal Energy Regulatory Commission, the Public Utilities
Commission of Colorado, the Public Service Commission of West Virginia
and any other commission or governmental authority having jurisdiction
over any of the Company's public utility businesses shall have issued
all approvals, authorizations, consents and orders (the "Regulatory
Actions") required thereby for the issuance and sale of the PEPS Units,
the Guaranty, the Debenture, the Common Stock, the Purchase Contracts
and the Trust Preferred Securities, the performance by the Trust and the
Company of its other obligations under this Agreement and the Pricing
Agreement relating to such Designated Securities, the issuance and sale
by the Company of the Senior Deferrable Note, the Contribution, the
Purchase Contracts and the Guarantee; each Regulatory Action shall be in
effect; no proceedings to suspend the effectiveness of any Regulatory
Actions shall be pending or threatened; no Regulatory Action shall
contain any provision or condition that is unacceptable to the
Underwriters; and the issuance and sale of the Designated Securities to
the Underwriters hereunder, the issuance and sale of the Senior
Deferrable Notes, the Contribution, the Guarantee and the Purchase
Contracts shall be in conformity with each Regulatory Action.
(p) The Company shall have furnished or caused to be furnished to
the Representatives at the Closing Date for the Designated Securities a
certificate or certificates of the Regular Trustees of the Trust and of
the chief executive officer or the chief financial officer of the
Company (or such other officer as is acceptable to you) satisfactory to
the Representatives as to the accuracy of the representations and
warranties of the Trust and the Company herein at and as of such Closing
Date, as to the performance by the Trust and the Company of all of their
obligations hereunder to be performed at or prior to such Closing Date,
as to the matters set forth in subsections (a), (n) and (o) of this
Section with respect to the Company and (a) and (n) of this Section with
respect to the Trust and as to such other matters as the Representatives
may reasonably request.
(q) The PEPS Units shall have been approved for listing, subject
only to official notice of issuance, on the New York Stock Exchange.
The several obligations of the Underwriters to purchase Option
Securities pursuant to a Pricing Agreement are subject to the satisfaction on
and as of the Option Closing Date specified therein of the conditions set
forth in this Section 7, except that, if the Option Closing Date is other
than the Closing Date, the certificates, opinions and
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letters referred to in paragraphs (b)-(h) and (k) shall be dated the Option
Closing Date and the opinions called for by paragraphs (b) and (c) shall be
revised to reflect the sale of the Option Securities.
8. (a) The Trust and the Company will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus, as
amended or supplemented, and any other prospectus relating to the
Designated Securities, the Senior Deferrable Notes, the Trust Preferred
Securities and the Guarantee, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
neither the Trust nor the Company shall be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus, as amended or supplemented, and any other prospectus
relating to the Designated Securities, the Senior Deferrable Notes and
the Guarantee, or any such amendment or supplement in reliance upon and
in conformity with written information relating to the Underwriters
furnished to the Trust and the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus, as amended or supplemented, relating to such Designated
Securities.
(b) Each Underwriter will indemnify and hold harmless the Trust
and the Company against any losses, claims, damages or liabilities to
which the Trust and the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus, as amended or supplemented, and
any other prospectus relating to the Designated Securities, the Senior
Deferrable Notes and the Guarantee, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Securities, the Senior
Deferrable Notes and the Guarantee, or any such amendment or supplement
in reliance upon and in conformity with written information relating to
the Underwriters furnished to the Trust
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and the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Trust and the Company
for any legal or other expenses reasonably incurred by the Trust and the
Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Trust and the Company on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Trust and the Company on the one hand and such Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the
Trust and the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or
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the omission or alleged omission to state a material fact relates to
information supplied by the Trust and the Company on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, the Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this subsection (d) 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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Designated Securities and not joint.
(e) The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability 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, 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 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) 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 of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(f) The obligations of the Trust and the Company under this
Section 8 shall be in addition to any liability which the Trust and the
Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under
30
<PAGE>
this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Trust and
the Company and to each person, if any, who controls the Trust and the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Securities or Option Securities which it has agreed to
purchase under the Pricing Agreement relating to the Designated
Securities, the Representatives may in their discretion arrange for
themselves or another party or other parties, to purchase such Firm
Securities or Option Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Firm Securities
or Option Securities, then the Trust and the Company shall be entitled
to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase
such Firm Securities or Option Securities on such terms. In the event
that, within the respective prescribed period, the Representatives
notify the Trust and the Company that they have so arranged for the
purchase of such Firm Securities or Option Securities, or the Trust or
the Company notifies the Representatives that it has so arranged for the
purchase of such Firm Securities or Option Securities, the
Representatives or the Trust or the Company shall have the right to
postpone the Closing Date or the Option Closing Date, as the case may
be, for such Firm Securities or Option Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, as
amended or supplemented, or in any other documents or arrangements, and
the Trust and the Company agree to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to the
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Securities or Option Securities of a defaulting Underwriter
or Underwriters by the Representatives and the Trust and the Company as
provided in subsection (a) above, the aggregate number of shares of such
Firm Securities or Option Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of Firm Securities or the
Option Securities, as such case may be, then the Trust and the Company
shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Securities or Option Securities which such
Underwriter agreed to purchase under the Pricing Agreement relating to
the Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of shares of the Firm Securities or Option Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm
Securities or the Option Securities, as such case may be, of such
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Securities or Option Securities of a defaulting Underwriter or
Underwriters by the
31
<PAGE>
Representatives and the Trust and the Company as provided in subsection
(a) above, the aggregate number of Firm Securities or Option Securities
which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Firm Securities or the Option Securities, as the
case may be, as referred to in subsection (b) above, or if the Issuer
and the Company shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Firm Securities
or Option Securities, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm or Option
Securities shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Trust or the Company, except for
the expenses to be borne by the Trust, the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. This Agreement and any applicable Pricing Agreement shall be
subject to termination in the absolute discretion of the Representatives,
without liability on the part of any Underwriter of the Designated Securities
relating to such Pricing Agreement by notice to the Issuer and the Company,
if prior to the Closing Date for the Designated Securities or the Option
Closing Date (if different from the Closing Date and then only as to the
Option Securities), as the case may be, there shall have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York or Missouri declared by either
Federal or New York State or Missouri State authorities; or (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war if the effect
of any such event specified in this Clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as amended or supplemented.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Trust and the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Trust, the Company, or any officer or director or
controlling person of the Issuer or the Company, and shall survive delivery
of and payment for the Designated Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Trust and the Company shall not then be under any liability to any
Underwriter with respect to the Firm Securities or Option Securities covered by
such Pricing Agreement except as provided in Section 6 and Section 8 hereof;
but, if for any other reason Designated Securities are not delivered by or on
behalf of the Trust (or the Guarantee is not concurrently issued by the Company)
as provided herein, the Trust and the Company will reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Trust and the Company shall then
be under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and
32
<PAGE>
Section 8 hereof.
13. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by such Representatives jointly or by such of the Representatives,
if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Representatives as set
forth in the Pricing Agreement; and if to the Trust, shall be delivered to
the address of the Trust set forth in the Registration Statement, and if to
the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Trust set forth in the Registration
Statement; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Trust or the Company by the Representatives
upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Trust and the
Company and, to the extent provided in Section 8 and Section 11 hereof the
officers and directors of the Company and each person who controls the Trust
or the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Designated Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original but all such
respective counterparts shall together constitute one and the same instrument.
33
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us five (6) counterparts hereof.
Very truly yours,
UTILICORP CAPITAL TRUST I
By: UTILICORP UNITED INC.,
as Sponsor
By: /s/ Dale J. Wolf
------------------------------
Name: Dale J. Wolf
Title: Regular Trustee
UTILICORP UNITED INC.
By: /s/ Dwayne L. Hart
------------------------------
Name: Dwayne L. Hart
Title: Chief Financial Officer
Confirmed as of the date first above mentioned.
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the
several Underwriters
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ William H. Wright II
---------------------------
Name: William H. Wright II
Title: Managing Director
34
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
[Date]
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the
several Underwriters
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broad Street
New York, New York 10036
Ladies and Gentlemen:
UtiliCorp Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and UtiliCorp United Inc., a
Delaware corporation (the "Company", and together with the Trust, the
"Issuers"), propose, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated September __, 1999 (the "Underwriting
Agreement"), between the Trust and the Company on the one hand and Morgan
Stanley & Co. Incorporated, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, PaineWebber Incorporated, as representatives of the several
underwriters on the other hand, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the PEPS Units (including the
Guarantee) specified in Schedule II hereto (the "Firm Securities"). In
addition, solely for the purpose of covering over-allotments, the Issuers
propose to issue and sell to the Underwriters, subject to the terms and
conditions stated herein and in the Underwriting Agreement, the PEPS Units
(including the Guarantee) specified in Schedule II hereto (the "Option
Securities"). The Firm Securities, the Option Securities and the Guarantee
are hereinafter collectively called the "Designated Securities". Each of the
provisions of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus
(as therein defined), and also a representation and warranty as of the date
of this Pricing Agreement in relation to the Prospectus, as amended or
supplemented, relating to the Designated Securities which are the subject of
this Pricing Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms
defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 13 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 13 are set forth at the end of
Schedule II hereto.
35
<PAGE>
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Issuers agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Issuers, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the number of Firm Securities set forth opposite the names of such
Underwriter in Schedule I hereto. Subject to the terms and conditions set
forth herein and in the Underwriting Agreement incorporated herein by
reference, the Issuers also agrees to issue and sell to each of the
Underwriters, and the Underwriters shall have the right to purchase from the
Issuers, up to the number of Option Securities set forth in Schedule II
hereto. The Option Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. If any Option Securities are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Issuers the number of
Option Securities (subject to such adjustments as you may determine in order
to avoid fractional shares) which bears the same proportion to the number of
Option Securities to be sold by the Issuers as the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I hereto (or such
number of Firm Securities increased as set forth in Section 9 of the
Underwriting Agreement) bears to the total number of Firm Securities.
The Company hereby guarantees the timely performance by the Trust
of its obligations under this Pricing Agreement and the Underwriting
Agreement. As compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds of the sale of the Trust
Preferred Securities will be invested in Senior Deferrable Notes, the Company
hereby agrees to pay at the Closing Date of the Designated Securities to the
Representatives for the accounts of the several Underwriters an amount or
amounts set forth in Schedule II hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us five (6) counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement
between each of the Underwriters, the Trust and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Trust and the Company for examination upon request, but without warranty on
the part of the Representatives as to the authority of the signers thereof.
36
<PAGE>
Very truly yours,
UTILICORP CAPITAL TRUST I
By: UTILICORP UNITED INC.
as Sponsor
By:______________________________
Name:
Title:
UTILICORP UNITED INC.
By:______________________________
Name:
Title:
Confirmed as of the date
first above mentioned on
behalf of themselves and
the other several Underwriters
named in Schedule I hereto.
MORGAN STANLEY & CO. INCORPORATED
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the
several Underwriters
By: MORGAN STANLEY & CO. INCORPORATED
By:___________________________________
Name:
Title:
37
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Maximum Number
of Option
Securities to be
Number of Purchased if
Firm Securities Maximum Option
Underwriter Purchased to Be Purchased Exercised
--------------------- --------------- --------------
<S> <C> <C>
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PaineWebber Incorporated
Total 9,000,000 1,000,000
</TABLE>
38
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
REGISTRATION STATEMENT:
Registration Statement No. 333-
NUMBER OF FIRM SECURITIES:
NUMBER OF OPTION SECURITIES:
GUARANTEE:
PRICE TO PUBLIC:
PURCHASE PRICE BY UNDERWRITERS:
COMMISSION PAYABLE TO UNDERWRITERS:
$____ Per Designated Security
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
DIVIDEND RATE:
__% of the stated liquidation preference of $25 per Designated Security per
annum
DIVIDEND PAYMENT DATES:
DIVIDEND RIGHTS:
VOTING RIGHTS:
LIQUIDATION RIGHTS:
REDEMPTION PROVISIONS:
STOCK EXCHANGE LISTING:
New York Stock Exchange
CLOSING DATE:
CLOSING LOCATION:
39
<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVES:
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
PaineWebber Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
[OTHER TERMS]:
40
<PAGE>
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, each of the
independent accountants shall furnish letters to the Underwriters to the
effect that, severally:
(i) They are independent certified public accountants with
respect to the Company and/or its Subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and/or the Subsidiaries audited
and reported upon by such accountants and incorporated by reference in
the Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the Act and the
regulations thereunder with respect to registration statements on Form
S-3 and the Exchange Act and the regulations thereunder;
(iii) With respect to the entity and entities for which such
accountants have certified the financial statements of the Company
and/or the Subsidiaries included or incorporated by reference in the
Registration Statement (hereinafter, with respect to each of such
accountants severally referred to as an "Audited Entity"), they have
performed specified procedures, not constituting an audit, including a
reading of all of the available interim consolidated financial
statements of the Audited Entity since the end of the most recent fiscal
year with respect to which an audit report has been issued, inquiries of
and discussions with certain officials of the Audited Entity and certain
of its subsidiaries responsible for financial and accounting matters
with respect to the unaudited consolidated financial statements
incorporated by reference in the Registration Statement and Prospectus,
as amended or supplemented, and all of the available interim unaudited
consolidated financial statements of the Audited Entity since the end of
the most recent fiscal year, and such other inquiries and procedures as
may be specified in such letter, and on the basis of such inquiries and
procedures nothing came to such accountants' attention that caused them
to believe that: (A) the unaudited consolidated financial statements of
the Audited Entity incorporated by reference in the Registration
Statement and Prospectus, as amended or supplemented, do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the rules and regulations
thereunder or were not fairly presented on a basis substantially
consistent with that of the corresponding audited financial statements
incorporated by reference therein, or (B) at a specified date not more
than five days prior to the date of such letter, there was any change in
the outstanding capital stock (in the case of a corporation) of the
Audited Entity or consolidated long-term debt of the Audited Entity, or
any increase in preferred stock of the Audited Entity, in each case as
compared with the amounts shown on the most recent consolidated balance
sheet of the Audited Entity incorporated by reference in the
Registration Statement and Prospectus, as amended or supplemented,
except in each such case as set forth in or contemplated by the
Registration Statement and Prospectus, as amended or supplemented, or
except for such exceptions enumerated in
41
<PAGE>
such letter as shall have been agreed to by the Underwriters, the Issuer
and the Company; and
(iv) In addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and
the Prospectus, as amended or supplemented, and the limited procedures
referred to in clause (iii) above, such accountants have carried out
certain other specified procedures, not constituting an audit, with
respect to certain financial information which is included or
incorporated by reference in the Registration Statement and Prospectus,
as amended or supplemented, which are specified by the Underwriters or
their counsel, and have found such financial information to be in
agreement with the relevant accounting, financial and other records of
the Audited Entity identified in such letter.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the
letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus, as amended or supplemented (including the
documents incorporated by reference therein), in relation to the applicable
Designated Securities for purposes of the letter delivered at the Closing
Date for such Designated Securities.
42
<PAGE>
EXHIBIT 1(b)
UtiliCorp United Inc.
Trust Preferred Securities
REMARKETING AGREEMENT
September 29, 1999
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Morgan Stanley & Co. Incorporated (the "Remarketing Agent") is
undertaking to remarket the 7.35% Trust Preferred Securities due November 16,
2004 (the "Trust Preferred Securities"), issued by UCU Capital Trust I, a
Delaware business trust (the "Trust"), pursuant to Amended and Restated
Declaration of Trust ("Declaration"), dated as of September 29, 1999 by and
among UtiliCorp United Inc., a Delaware corporation (the "Company"), as
Sponsor, Dale J. Wolf, Ellen E. Fairchild, and Kenneth C. Jones, as the
initial Regular Trustees, Bank One Trust Company, NA, as the initial Property
Trustee, and Bank One Delaware, Inc., as the initial Delaware Trustee, not in
their individual capacities but solely as Trustees, and the Holders, from
time to time, of the Securities representing undivided beneficial ownership
interests in the assets of the Trust to be issued pursuant to the
Declaration.
The Remarketing (as defined below) of the Trust Preferred
Securities is provided for in the Declaration, the Pledge Agreement and the
Purchase Contract Agreement (as defined below).
If a liquidation and dissolution of the Trust shall have occurred
prior to the Purchase Contract Settlement Date and the Senior Deferrable
Notes have been distributed to the holders of the Trust Preferred Securities
all references herein to "Trust Preferred Securities" shall instead be
references to "Senior Deferrable Notes" and references to "Remarketed Trust
Preferred Securities" shall instead be references to "Remarketed Senior
Deferrable Notes", unless the context otherwise requires.
1
<PAGE>
Section 1. DEFINITIONS.
(a) Capitalized terms used and not defined in this Agreement shall
have the meanings set forth in the Purchase Contract Agreement, dated as of
September 29, 1999 (the "Purchase Contract Agreement"), between the Company
and Bank One Trust Company, NA, as Purchase Contract Agent (the "Purchase
Contract Agent").
(b) As used in this Agreement, the following terms have the
following meanings:
"Remarketed Trust Preferred Securities" means the Trust Preferred
Securities subject to the Remarketing, as identified to the Remarketing Agent
by the Purchase Contract Agent after 11:00 a.m. on the fifth Business Day
immediately preceding November 16, 2002;
"Remarketing Procedures" means the procedures in connection with
the Remarketing of the Trust Preferred Securities described in the Purchase
Contract Agreement, the Pledge Agreement and the Declaration, as the case may
be; and
"Remarketing" means the remarketing of the Remarketed Trust
Preferred Securities pursuant to the Remarketing Procedures.
Section 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
(a) The Company hereby appoints Morgan Stanley & Co. Incorporated
as exclusive remarketing agent (the "Remarketing Agent"), and Morgan Stanley
& Co. Incorporated hereby (A) accepts appointment as Remarketing Agent, for
the purpose of (1) Remarketing Remarketed Trust Preferred Securities on
behalf of the holders thereof and (2) performing such other duties as are
assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures, and (B) accepts
and will perform all obligations set forth in the Declaration, the Pledge
Agreement and the Purchase Contract Agreement.
(b) The Remarketing Agent agrees to (1) use reasonable efforts to
remarket the Remarketed Trust Preferred Securities tendered or deemed
tendered to the Remarketing Agent in the Remarketing, (2) notify the Company,
the Depository and the Indenture Trustee promptly of the Reset Rate and (3)
carry out such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with the provisions of the
Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent
shall use commercially reasonable efforts to remarket, the Trust Preferred
Securities tendered or deemed tendered for purchase at a price at least equal
to 100.25% of the aggregate stated liquidation amount thereof.
2
<PAGE>
(d) If, as a result of the efforts described in 2(c), the
Remarketing Agent has determined that it will be able to remarket all of the
Preferred Securities tendered or deemed tendered for purchase at a price of
100.25% of the aggregate stated liquidation amount of such Preferred
Securities, the Remarketing Agent shall determine the Reset Rate, which shall
be the rate per annum (rounded to the nearest one-thousandth (0.001) of one
percent per annum) sufficient to cause the then current aggregate market
value of the Preferred Securities to be at least equal to 100.25% of the
aggregate stated liquidation amount of such Preferred Securities, that the
Remarketing Agent determines, in its sole reasonable judgment, to be the
lowest rate per annum that will enable it to remarket all of the Preferred
Securities tendered or deemed tendered for Remarketing.
(e) If none of the Holders of the Preferred Securities or the
holders of the PEPS Units elect to have Preferred Securities remarketed in
the Remarketing, the Reset Rate shall be the rate determined by the
Remarketing Agent, in its sole reasonable discretion, as the rate that would
have been established had a Remarketing been held on the Remarketing Date.
(f) Upon receipt of the proceeds from the Remarketing, the
Remarketing Agent shall: (1) retain $.0625 per Remarketed Trust Preferred
Security for the performance of its services as Remarketing Agent hereunder;
and (2) remit to the Collateral Agent all excess proceeds of the Remarketed
Trust Preferred Securities subject to the Pledge Agreement.
(g) The Remarketing Agent shall submit at least one Trust
Preferred Security to the Remarketing to ensure that there is a Remarketing.
(h) If, by 4:00 p.m., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all of the Trust Preferred
Securities tendered or deemed tendered for purchase, a Failed Remarketing
shall be deemed to have occurred, and the Remarketing Agent shall so advise
by telephone the Depository, the Property Trustee, the Trust and the Company.
In the event of a Failed Remarketing, the Reset Rate shall equal the Two
Year Benchmark Treasury Rate plus the Applicable Margin.
(i) By approximately 4:30 p.m. New York City time on the
Remarketing Date (provided there has not been a Failed Remarketing), the
Remarketing Agent shall advise, by telephone:
(1) the Depository, the Property Trustee, the Indenture Trustee,
the Trust and the Company of the Reset Rate determined in the
Remarketing and the number of Remarketed Trust Preferred Securities
sold in the Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of
Remarketed Trust Preferred Securities of the Reset Rate and the number
of Remarketed Trust Preferred Securities such purchaser is to purchase;
and
(3) each purchaser to give instructions to its Depositary
Participant to pay
3
<PAGE>
the purchase price on the Purchase Contract Settlement Date in same day
funds against delivery of the Remarketed Trust Preferred Securities
purchased through the facilities of the Depository.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
TRUST.
The Company and the Trust jointly and severally represent and
warrant (i) on and as of the date hereof, (ii) on and as of the date the
Prospectus or other Remarketing Materials (each as defined in Section 3(a)
below) are first distributed in connection with the Remarketing (the
"Commencement Date"), (iii) on and as of the Remarketing Date, and (iv) on
and as of the Purchase Contract Settlement Date that:
(a) A registration statement (File No. 333-86299) in respect of
the initial offering of the Trust Preferred Securities has been filed with
the Securities and Exchange Commission (the "Commission") on Form S-3; a
registration statement on Form S-3, if required in connection with the
Remarketing also may be prepared by the Company; the last of such
registration statement including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement at the time such part of such registration statement became
effective but excluding each Form T-1 filed in connection therewith, and any
post-effective amendment thereto is referred to herein as the "Registration
Statement"; the Registration Statement, in the form heretofore delivered or
to be delivered to the Remarketing Agent, excluding exhibits, but including
all documents incorporated by reference in the prospectus contained therein,
has been declared effective by the Commission in such form; and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission; any preliminary prospectus included in the Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), being hereinafter called a "Preliminary Prospectus"; the
prospectus relating to the Trust Preferred Securities, in the form in which
first filed, or transmitted for filing, with the Commission after the
effective date of the Registration Statement pursuant to Rule 424(b), being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented
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in relation to the applicable Trust Preferred Securities in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing.
Reference made herein to any Preliminary Prospectus, the Prospectus
or any other information furnished by the Company to the Remarketing Agent
for distribution to investors in connection with the Remarketing (the
"Remarketing Materials") shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, or, in the case of Remarketing Materials,
referred to as incorporated by reference therein, and any reference to any
amendment or supplement to any Preliminary Prospectus, the Prospectus or the
Remarketing Materials shall be deemed to refer to and include any document
filed under the Exchange Act, after the date of such Preliminary Prospectus
or the Prospectus incorporated by reference therein pursuant to Item 12 of
Form S-3 or, if so incorporated, the Remarketing Materials, as the case may
be;
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to the Company by the Remarketing Agent or the Underwriter of Trust Preferred
Securities expressly for use in the Prospectus;
(c) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as the
case may be, will conform) in all material respects to the requirements of the
Act and the rules and regulations promulgated thereunder, and the Registration
Statement, the Prospectus and the Remarketing Materials (and any amendment or
supplement thereto) as of their respective effective or filing dates and as of
the Commencement Date, Remarketing Date and Purchase Contract Settlement Date do
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
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<PAGE>
statements therein not misleading; PROVIDED that no representation and
warranty is made as to any statement of eligibility on Form T-1 filed or
incorporated by reference as part of the Registration Statement, the
Prospectus or the Remarketing Materials, or as to information contained in or
omitted from the Registration Statement, the Prospectus or the Remarketing
Materials in reliance upon and in conformity with written information
furnished to the Company by the Remarketing Agent;
(d) The Trust has no subsidiaries. Neither the Trust nor the
Company (including all of its subsidiaries taken as a whole, each a
"Subsidiary" and, collectively, the "Subsidiaries") has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to the
Trust or the Company and its Subsidiaries taken as a whole, or sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material change in the capital stock, or material increase in the short-term
debt or long-term debt, of the Company or any of its Subsidiaries or any
material adverse change, or any development involving, or which may
reasonably be expected to involve, a prospective material adverse change in
or affecting the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Company and its Subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights and remedies
generally, as from time to time in effect, and by applicable principles of
equity and considerations of public policy (regardless of whether
enforceability is considered in a proceeding in equity or at law); and this
Agreement conforms to the description thereof in the Remarketing Materials;
(f) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full power and authority
(corporate and other) to own or lease its properties and conduct its business as
described in the Remarketing Materials, and is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the business
conducted by it or the location of the properties owned or leased by it makes
such qualification necessary. All of the shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable. Except as set forth in the Remarketing Materials, all of the
outstanding shares of capital stock of each Subsidiary are owned directly or
indirectly by the
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Company, free and clear of any claim, lien, encumbrance or security interest;
(g) The Indenture and the Senior Deferrable Notes issued
thereunder, have been duly authorized, executed and delivered and constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights and remedies generally, as from time to time in effect, and
by applicable principles of equity and considerations of public policy
(regardless of whether enforceability is considered in a proceeding in equity
or at law); and the Indenture and the Senior Deferrable Notes conform to the
description thereof in the Remarketing Materials;
(h) Each of the Guarantee and the Guarantee Agreement has been
duly authorized, executed and delivered by the Company constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and general principles of equity and considerations of public
policy (regardless of whether enforceability is sought in a proceeding in
equity or at law); and the Guarantee conforms to the description thereof in
the Remarketing Materials;
(i) Neither the Company nor any of its Subsidiaries is, nor with
the giving of notice or lapse of time or both would be, in violation of or in
default under, nor will the execution, delivery and performance by the
Company of its obligations under, this Agreement, the Amended Declaration,
the Guarantee Agreement and the Indenture and the consummation of the
transactions (the "Transactions") contemplated in this Agreement, the Amended
Declaration, the Guarantee, the Indenture, nor will compliance by the Company
with its obligations under this Agreement, the Amended Declaration, the
Guarantee Agreement and the Indenture, result in a violation of, or
constitute a default under, (1) the certificate of incorporation, by-laws or
other governing documents of the Company or any of its Subsidiaries, (2) any
agreement, indenture or other instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or to which any of
their properties is subject, or (3) any law, rule, administrative regulation
or decree of any court or any governmental agency or body having jurisdiction
over the Company, its Subsidiaries or any of their properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries which would be
material to the Company and its Subsidiaries taken as a whole. Except for
permits and similar authorizations required under the Act, the Trust
Indenture Act, the Federal Power Act, the laws of the States of Colorado and
West Virginia and the securities or Blue Sky laws of certain jurisdictions,
and except for such permits and authorizations as have been obtained, no
consent, approval, authorization or order of any court, governmental agency
or body or financial institution is required for the Guarantee or the
consummation of the Transactions;
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<PAGE>
(j) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Trust Act") with the trust power and
authority to own property and conduct its business as described in the
Remarketing Materials, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Remarketing Materials; the Trust is not a party to or bound by any agreement
or instrument other than this Agreement, the Amended Declaration and the
other agreements entered into in connection with the transactions
contemplated hereby; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement and the
Amended Declaration and described in the Remarketing Materials; and the Trust
is not a party to or subject to any action, suit or proceeding of any nature;
(k) The Amended Declaration has been duly authorized by the
Company, as Sponsor, and executed and delivered by the Company, as Sponsor,
and the Regular Trustees (assuming due authorization, execution and delivery
by the Property Trustee and the Delaware Trustee), and constitutes a legal,
valid and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, except as the enforceability thereof may be
limited by the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general principles of equity and considerations
of public policy (regardless of whether considered in a proceeding in equity
or at law), and conforms to the description thereof contained in the
Remarketing Materials;
(l) The Trust Securities have been duly authorized, validly
issued, fully paid and are non-assessable and conform to the descriptions
contained in the Remarketing Materials;
(m) This Agreement has been duly authorized by the Trust and will
be, when delivered by the Trust, duly executed and delivered by the Trust;
(n) The Trust is not, nor with the giving of notice or lapse of
time or both would be, in violation of or in default under, nor will the
execution, delivery and performance by the Trust of its obligations under
this Agreement, and the consummation by the Trust of the transactions
contemplated herein and in the Amended Declaration (the "Trust
Transactions"), result in a violation of any statute or order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Trust or any of its assets. Except for permits and similar
authorizations required under the Act, the qualification of the Amended
Declaration under the Trust Indenture Act, the Exchange Act, the Federal
Power Act, the laws of the States of Colorado and West Virginia and the
securities or Blue Sky laws of certain jurisdictions, and except for such
permits and authorizations as have been obtained, no consent, approval,
authorization or order of any court, governmental agency or body or financial
institution is required for the consummation of the Trust Transactions;
8
<PAGE>
(o) The Trust, the Company and its Subsidiaries have good and
marketable title to all material real and personal property owned by them, in
each case free and clear of all mortgages, liens, encumbrances and defects,
except such as are described or referred to in the Remarketing Materials, or
such as do not materially affect the values of such property and do not
interfere with the use made or proposed to be made of such property by the
Trust or the Company or such Subsidiaries; and any real property and
buildings held under lease by the Trust and the Company and its Subsidiaries
are held by them under valid, existing and enforceable leases with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Trust and the
Company or such Subsidiaries;
(p) Except as described in the Remarketing Materials, there is no
litigation or governmental proceeding to which the Trust or the Company or
any of its Subsidiaries is a party or to which any property of the Trust, or
the Company or any of its Subsidiaries is subject or which is pending or, to
the knowledge of the Trust or the Company, contemplated against the Trust or
the Company or any of its Subsidiaries which might result in any material
adverse change in the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Trust and the Company and its
Subsidiaries taken as a whole;
(q) The Trust, the Company and its Subsidiaries are not in
violation of any law, ordinance, governmental rule or regulation or court
decree to which it is subject which violation would have a material adverse
effect on the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Trust and the Company and its
Subsidiaries taken as a whole;
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(s) The accountants who have audited and reported upon the
financial statements filed most recently with the Commission are independent
accountants as required by the Act and the regulations thereunder. The
consolidated financial statements and schedules (including the related notes)
included or incorporated by reference in the Remarketing Materials, fairly
present the consolidated financial position, the results of operations and
changes in financial condition of the entity or entities to which such
statements relate at the respective dates and for the respective periods to
which they apply. Such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied, except as
set forth in the
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Remarketing Materials. The other financial and statistical information and
data set forth in the Remarketing Materials, are fairly presented and have
been prepared on a basis consistent with such financial statements and the
books and records of the entities purported to be shown thereby;
(t) Neither the Trust nor the Company is an "investment company"
required to register under, or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended, nor will be
required to so register, nor will be such after giving effect to the
transactions contemplated hereby; and
(u) The certificate delivered pursuant to paragraph (e) of Section
6 hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Remarketed
Trust Preferred Securities were on the dates on which they were delivered, or
will be on the dates on which they are to be delivered, in all material
respects true and complete.
Section 4. FEES.
For the performance of its services as Remarketing Agent hereunder,
the Remarketing Agent shall retain from the proceeds of the Remarketing an
amount equal to .25% of the $25 Stated Amount of all Remarketed Trust
Preferred Securities.
Section 5. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or the Prospectus,
if required in connection with the Remarketing, in a form approved by
the Remarketing Agent and to file any such prospectus pursuant to the
Securities Act within the period required by the Act and the rules and
regulations thereunder;
(2) to advise the Remarketing Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Remarketed Trust Preferred Securities;
(4) to advise the Remarketing Agent, promptly after it receives
notice
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<PAGE>
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any of the Remarketed Trust Preferred
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information, and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel to
the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith.
(c) To furnish to the Remarketing Agent in New York City such
copies of the following documents as the Remarketing Agent shall
reasonably request (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each
case excluding exhibits); (ii) the Prospectus and any amended or
supplemented Prospectus; (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto); and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any time
in connection with the Remarketing and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would 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 when such Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the Remarketing
Agent and, upon its request, to file such document and to prepare and
furnish without charge to the Remarketing Agent and to any dealer in
securities as many copies as the Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the
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<PAGE>
Remarketing Agent and counsel to the Remarketing Agent; and not to file
any such amendment or supplement which shall be reasonably disapproved
by the Remarketing Agent promptly after reasonable notice.
(f) As soon as practicable, but in any event not later than
eighteen months, after the Effective Date of the Registration Statement,
to make "generally available to its security holders" an "earnings
statement" of the Company and its Subsidiaries complying with (which
need not be audited) Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158).
The terms "generally available to its security holders" and "earnings
statement" shall have the meanings set forth in Rule 158 of the Rules
and Regulations.
(g) To take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Trust Preferred Securities
for offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Remarketing Agent may reasonably request; provided
that in no event shall the Company be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(h) To pay (1) the costs incident to the preparation and printing
of the Registration Statement, Prospectus and any Remarketing Materials
and any amendments or supplements thereto; (2) the costs of distributing
the Registration Statement, Prospectus and any Remarketing Materials and
any amendments or supplements thereto; (3) the fees and expenses of
qualifying the Remarketed Trust Preferred Securities under the
securities laws of the several jurisdictions as provided in Section 5(g)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Remarketing
Agent); (4) all other costs and expenses incident to the performance of
the obligations of the Company, hereunder; and (5) the reasonable fees
and expenses of counsel to the Remarketing Agent in connection with
their duties hereunder.
Section 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent hereunder are subject to
the following conditions:
(a) The Prospectus shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the
Registration Statement or any part thereof or suspending the
qualification of the Indenture shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed to
the
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Company prior to or on the Remarketing Date that the Prospectus, the
Registration Statement, or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Since the respective dates as of which information is given in
the Remarketing Materials (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National
Market or in the over-the-counter market, or trading in any securities of
the Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions so as in each case described in (i), (ii), (iii) and
(iv) above to make it, in the judgment of the Remarketing Agent,
impracticable or materially inadvisable to proceed with the Remarketing at
the times and on the terms and in the manner contemplated in the Prospectus
and in the Remarketing Materials.
(d) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of
the Remarketing Date, and the Company shall have performed in all
material respects all covenants and agreements herein contained to be
performed on its part at or prior to the Remarketing Date.
(e) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of the Chief Executive Officer
and the Treasurer satisfactory to the Remarketing Agent stating that:
(i) no order suspending the effectiveness of the Registration Statement
or prohibiting the sale of the Remarketed Trust Preferred Securities is
in effect, and no proceedings for such purpose are pending before or, to
the knowledge of such officers, threatened by the Commission; (ii) the
representations and warranties of the Company in Section 3 are true and
correct in all material respects on and as of the Remarketing Date and
the Company has performed in all material respects all covenants and
agreements contained herein to be performed on its part at or prior to
the Remarketing Date; (iii) the Registration Statement, as of its
Effective Date, and the Prospectus and the Remarketing Materials, as of
their respective dates, did not contain any untrue statement of a
material fact and did not omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
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(f) On the Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such
date, in form and substance satisfactory to the Remarketing Agent, of
Arthur Andersen LLP, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to
certain financial information contained in the Prospectus and in the
Remarketing Materials.
(g) Blackwell Sanders Peper Martin LLP, counsel to the Company,
shall have furnished to the Remarketing Agent its opinion letter or
opinion letters, as the case may be, addressed to the Remarketing Agent
and dated the Remarketing Date, in form and substance satisfactory to
the Remarketing Agent addressing such matters as are set forth in such
counsel's opinion furnished pursuant to Section 7(c) of the Underwriting
Agreement dated September 23, 1999 among the Company, the Trust and the
Underwriters named herein relating to 10,000,000 9 3/4% Premium Equity
Participating Securities Units--PEPS-SM- Units, adapted as necessary to
relate to the securities being remarketed hereunder and to the
Remarketing Materials;
(h) Milbank, Tweed, Hadley & McCloy LLP, counsel for the
Remarketing Agent, shall have furnished to the Remarketing Agent its
opinion, addressed to the Remarketing Agent and dated the Remarketing
Date, in form and substance satisfactory to the Remarketing Agent;
(i) On or after the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preference stock by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act.
Section 7. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Remarketing
Agent and each person, if any, who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act against any losses, claims,
damages or liabilities, joint or several, (including any investigative, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
they may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Remarketing Materials,
the Prospectus as amended or supplemented and any other prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided, however, that the Company shall not be liable in any such case to
the extent that any such
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loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
(1) in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Remarketing Materials, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Remarketing Agent
for use in the Prospectus as amended or supplemented relating to such
Securities or the Registration Statement.
(b) The Remarketing Agent will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended
or supplemented and any other prospectus, or any amendment or supplement
thereto or any Remarketing Materials, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Remarketing Agent; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under Section
7(a) or 7(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
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<PAGE>
(d) The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability 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, 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 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) 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 of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
Section 8. CONTRIBUTION.
(a) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other from the Remarketing to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Remarketing Agent on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Remarketing Agent on the
other shall be deemed to be in the same proportion as the total principal
amount of Remarketed Trust Preferred Securities less the fee to be paid to
the Remarketing Agent pursuant to Section 4 on the other hand, bear to the
total principal amount of the Remarketed Trust Preferred Securities. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Remarketing Agent on the
16
<PAGE>
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Remarketing Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Remarketing Agent shall not be
required to contribute any amount in excess of the amount by which the fees
received by it under Section 4 exceeds the amount of any damages which such
Remarketing Agent has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(b) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Remarketing Agent within the meaning of the Act; and the
obligations of the Remarketing Agent under this Section 8 shall be in
addition to any liability which the Remarketing Agent may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any who controls the Company
within the meaning of the Act.
Section 9. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
The Remarketing Agent may resign and be discharged from its duties
and obligations hereunder, and the Company or the Trust may remove the
Remarketing Agent, by giving 60 days' prior written notice, in the case of a
resignation, to the Company, the Depository, the Property Trustee, the Trust
and the Indenture Trustee and, in the case of a removal, the removed
Remarketing Agent, the Depository, the Property Trustee, the Trust and the
Indenture Trustee; provided, however, that:
(i) the Company may not remove the Remarketing Agent unless (A)
the Remarketing Agent becomes involved as a debtor in a bankruptcy,
insolvency or similar proceeding, (B) the Remarketing Agent shall not be
among the 15 underwriters with the largest volume underwritten in
dollars, on a lead or co-managed basis, of U.S. domestic debt securities
during the twelve-month period ended as of the last calendar quarter
preceding the Remarketing Date, (C) the Remarketing Agent shall be
subject to one or more legal restrictions preventing the performance of
its obligations hereunder, or (D) the Remarketing Agent shall determine
that (I) the Company has not met its obligation under Section 6(c) or
(II) using its reasonable efforts, the Remarketing Agent would be
17
<PAGE>
unable to consummate the Remarketing on the terms and in the manner
contemplated in the Prospectus and the Remarketing Materials; and
(ii) no such resignation nor any such removal shall become
effective until the Company shall have appointed at least one nationally
recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a remarketing
agreement with the Company, in which it shall have agreed to conduct the
Remarketing in accordance with the Remarketing Procedures in all
material respects.
In any such case, the Company will use its reasonable efforts to appoint a
successor Remarketing Agent and enter into such a remarketing agreement with
such person as soon as reasonably practicable. The provisions of Sections 7
and 8 shall survive the resignation or removal of any Remarketing Agent
pursuant to this Agreement.
Section 10. DEALING IN THE REMARKETED TRUST PREFERRED SECURITIES.
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Trust Preferred Securities. The
Remarketing Agent may exercise any vote or join in any action which any
beneficial owner of Remarketed Trust Preferred Securities may be entitled to
exercise or take pursuant to the Declaration with like effect as if it did
not act in any capacity hereunder. The Remarketing Agent, in its individual
capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as
if it did not act in any capacity hereunder.
Section 11. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement, the
Declaration, the Pledge Agreement and the Purchase Contract Agreement. No
implied covenants or obligations of or against the Remarketing Agent shall be
read into this Agreement, the Declaration, the Pledge Agreement or the
Purchase Contract Agreement. In the absence of bad faith on the part of the
Remarketing Agent, the Remarketing Agent may conclusively rely upon any
document furnished to it, as to the truth of the statements expressed in any
of such documents. The Remarketing Agent shall be protected in acting upon
any document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties except as otherwise set
forth herein. The Remarketing Agent, acting under this Agreement, shall
incur no liability to the Company, the Trust or to any holder of Remarketed
Trust Preferred Securities in its individual capacity or as Remarketing Agent
for any action or failure to act, on its part in connection with a
Remarketing or otherwise, except if such liability is judicially determined
to have resulted from the negligence or willful misconduct on its part.
Section 12. TERMINATION.
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<PAGE>
This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 9. In addition, this Agreement may be terminated (A) by
the Company or the Trust by notifying the Remarketing Agent at any time
before the time when the Remarketed Trust Preferred Securities are first
generally offered by the Remarketing Agent to dealers by letter or telegram,
or (B) by the Remarketing Agent by notifying the Company and the Trust at or
prior to 10:00 a.m. (New York City time) on the Remarketing Date by letter or
telegram if any of the conditions described in Section 6 are not satisfied.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under
any liability to the Remarketing Agent and the Remarketing Agent shall not be
under any liability to the Company, except that (a) if this Agreement is
terminated by the Remarketing Agent because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company will reimburse the Remarking Agent
for all of its out-of-pocket expenses (including the fees and disbursements
of its counsel) reasonably incurred by it, and (b) if the Remarketing Agent
failed or refused to purchase the Remarketed Trust Preferred Securities
hereunder, without some reason sufficient hereunder to justify the
cancellation or termination of if obligations hereunder, the Remarketing
Agent shall not be relieved of liability to the Company for damages
occasioned by its default.
Section 13. NOTICES.
All statements, requests, notices and agreements hereunder shall be
in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, New York 10036, Attention: David
Ballard (fax: 212-761-0538);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to 20 W. Ninth Street, Kansas City, Missouri
64105, Attention: Treasurer. (Fax: 816-467-3591).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon the
Remarketing Agent, the Company, the Trust and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the
19
<PAGE>
Remarketing Agent and the person or persons, if any, who control the
Remarketing Agent within the meaning of Section 15 of the Securities Act and
(y) the indemnity agreement of the Remarketing Agent contained in Section
7(b) of this Agreement shall be deemed to be for the benefit of the Company's
and the Trust's directors, officers and Trustees who sign the Registration
Statement and any person controlling the Company or the Trust within the
meaning of Section 15 of the Securities Act. Nothing contained in this
Agreement is intended or shall be construed to give any person, other than
the persons referred to herein, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
Section 15. SURVIVAL.
The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
Section 16. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance
with, the laws of New York.
Section 17. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
Section 18. HEADINGS.
The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company, the Trust and the Remarketing Agent, please indicate your acceptance
in the space provided for that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
20
<PAGE>
Very truly yours,
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
------------------------------
Name: Dale J. Wolf
Title: Vice President, Finance,
Secretary and Treasurer
UCU CAPITAL TRUST I
By: /s/ Dale J. Wolf
------------------------------
Name: Dale J. Wolf
Title: Regular Trustee
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ William H. Wright II
---------------------------
Name: William H. Wright II
Title: Managing Director
21
<PAGE>
EXHIBIT 4D(14)
EXECUTION COPY
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- -------------------------------------------------------------------------------
UTILICORP UNITED INC.
And
BANK ONE TRUST COMPANY, NA
(formerly, The First National Bank of Chicago),
as Trustee
--------------------
7.35% Senior Deferrable Notes due 2004
--------------------
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of September 29, 1999
--------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TWELFTH SUPPLEMENTAL INDENTURE, dated as of September 29, 1999,
(herein called the "Twelfth Supplemental Indenture"), between UTILICORP
UNITED INC., a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), party of the first
part, and Bank One Trust Company, NA (formerly known as The First National
Bank of Chicago), a national banking association duly organized and existing
under the laws of the United States, as Trustee under the Indenture referred
to below (hereinafter called the "Trustee"), party of the second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of November 1, 1990 (hereinafter called the
"Indenture"), to provide for the issuance from time to time of certain of its
unsecured senior notes (hereinafter called the "Securities"), the form and
terms of which are to be established as set forth in Sections 201 and 301 of
the Indenture; and
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to
the Indenture for, among other things, the purpose of establishing the form
or terms of the Securities of any series as permitted in Sections 201 and 301
of the Indenture; and
WHEREAS, the Company desires to create a series of the Securities
in an aggregate principal amount of $257,731,975 to be designated the "7.35 %
Senior Deferrable Notes due 2004" (the "Senior Notes"), and all action on the
part of the Company necessary to authorize the issuance of the Senior Notes
under the Indenture and this Twelfth Supplemental Indenture has been duly
taken; and
WHEREAS, all acts and things necessary to make the Senior Notes
when executed by the Company and completed, authenticated and delivered by
the Trustee as in the Indenture and this Twelfth Supplemental Indenture
provided, the valid and binding obligations of the Company and to constitute
these presents a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed; and
WHEREAS, Section 901 of the Indenture provides, among other things,
that the Company and the Trustee may enter into indentures supplemental to the
Indenture to, among other things, add to the covenants of the Company for the
benefit of the Holders of all or any
<PAGE>
series of Securities; and
WHEREAS, UCU Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public up to $250,000,000, in aggregate
liquidation amount of its 7.35% Trust Preferred Securities (the "Preferred
Securities") and, in connection therewith, the Company has agreed to purchase
up to $7,731,975 in value of the aggregate liquidation amount of the Trust's
common securities (the "Common Securities" and together with the Preferred
Securities, the "Trust Securities"), each representing an undivided
beneficial interest in the assets of the Trust, and proposes to invest the
proceeds from such offerings in up to $257,731,975 aggregate principal amount
of the Senior Notes;
NOW, THEREFORE, THIS TWELFTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants and
agrees with the Trustee, for the equal benefit of holders of the Senior
Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITION OF TERMS. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Indenture has
(b) a term defined anywhere in this Twelfth Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this Twelfth Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Applicable Margin; (ii) Applicable Principal Amount;
(iii) Common Securities; (iv) Delaware Trustee; (v) Failed Remarketing;
(vi) Guarantee; (vii) Preferred Securities; (viii) Preferred Security
Certificate; (ix) Property Trustee; (x) Redemption Amount; (xi)
Redemption Price; (xii) Regular Trustees; (xiii) Remarketing Agreement;
(xiv) Tax Event; (xv) Remarketing Date; (xvii) Reset Rate; (xvii) Tax
Event Redemption; (xviii) Treasury Portfolio; and (xviv) Two-Year
Benchmark Treasury Rate;
<PAGE>
(g) the following terms have the meanings given to them in the
Purchase Contract Agreement: (i) Cash Settlement; (ii) PEPS Units;
(iii) Purchase Contract and (iv) Purchase Contract Settlement Date; (v)
Treasury PEPS Unit; (vi) Global Certificate
(h) the following terms have the meanings given to them in this
Section 1.1(h):
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in New York City are
authorized or required by law or executive order to remain closed
or a day on which the principal office of the Trustee or the
Property Trustee is closed for business.
"Declaration" means the Amended and Restated Declaration of
Trust of the Trust, dated as of September 29, 1999, as amended and
restated from time to time.
"Direct Action" has the meaning specified in Section 7.2.
"Primary Treasury Dealer" means a primary U.S. government
securities dealer in New York City.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of September 29, 1999 between the Company and
Bank One Trust Company, NA, as Purchase Contract Agent.
"Quotation Agent" means (i) Morgan Stanley & Co. Incorporated
and its respective successors, provided that if Morgan Stanley &
Co. Incorporated ceases to be a Primary Treasury Dealer, the
Company will substitute another Primary Treasury Dealer therefor,
or (ii) any other Primary Treasury Dealer selected by the Company.
"Remarketing" means (i) as long as the Trust has not been
liquidated, the operation of the procedures for remarketing
specified in Section 7.13 of the Declaration and (ii) if the Trust
has been liquidated, the operation of the procedures for
remarketing specified in Section 5.4 of the Purchase contract
Agreement.
"Remarketing Agent" shall mean Morgan Stanley & Co.
Incorporated or any successor remarketing agent selected by the
Company.
ARTICLE II
TERMS AND ISSUANCE OF THE SENIOR NOTES
Section 2.1. ISSUE OF SENIOR NOTES. A series of Securities which
shall be designated the "7.35% Senior Deferrable Notes due 2004" shall be
executed, authenticated and delivered in accordance with the provisions of, and
shall in all respects be subject to, the terms,
<PAGE>
conditions and covenants of the Indenture and this Twelfth Supplemental
Indenture (including the form of Senior Note set forth as Exhibits A and B
hereto). The aggregate principal amount of Senior Notes of the series
created hereby which may be authenticated and delivered under the Indenture
shall not, except as permitted by the provisions of the Indenture, exceed
$257,731,975. The Senior Note shall be initially issued in certificated form
to the Trust (the "Initial Senior Note") and shall be substantially in the
Form of Exhibit B attached hereto. The terms of such Senior Note are herein
incorporated by reference and are part of the Twelfth Supplemental Indenture.
Section 2.2 MATURITY. The Maturity Date will be November 16,
2004. Unless a Tax Event Redemption occurs, the entire principal amount of
the Senior Note will mature and become due and payable together with any
accrued and unpaid interest thereon, on November 16, 2004 (the "Maturity
Date").
Section 2.3 GLOBAL SENIOR NOTES. If distributed to holders of
Preferred Securities in connection with the involuntary or voluntary
liquidation and dissolution of the Trust:
(a) If the Preferred Securities are held in book-entry form, the
Initial Senior Note may be presented to the Trustee by the Property
Trustee in exchange for a Global Security in the form of Exhibit A in an
aggregate principal amount equal to all Outstanding Senior Notes (a
"Global Senior Note"). The Depositary for the Global Senior Note will be
The Depository Trust Company. The Global Senior Note will be registered
in the name of the Depositary or its nominee, Cede & Co., and delivered
by the Trustee to the Depositary or a custodian appointed by the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Properly see Section 3.8(c)(iii) Trustee. The
Company upon any such presentation shall execute a Global Senior Note in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
Twelfth Supplemental Indenture. Payments on the Senior Notes issued as a
Global Senior Note will be made to the Depositary or its nominee.
(b) If any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), the Initial
Senior Note may be presented to the Trustee by the Property Trustee, and
such Non Book-Entry Preferred Securities will be deemed to represent
beneficial interests in Senior Notes presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities
until the Preferred Security Certificates representing such Non
Book-Entry Preferred Securities are presented to the Security Registrar
for transfer or reissuance, at which time such Preferred Security
Certificates will be canceled and a Senior Note registered in the name
of the holder of the Preferred Security Certificate or the transferee of
the holder of such Preferred Security Certificate, as the case may be,
with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate canceled will be executed
by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this Twelfth Supplemental
Indenture. On issue of such Senior Notes, Senior Notes with an
equivalent aggregate principal amount that were presented by the
<PAGE>
Property Trustee to the Trustee will be deemed to have been canceled.
Section 2.4 INTEREST. (a) Each Senior Note will bear interest at
the rate of 7.35% per annum from September 29, 1999 until the Purchase
Contract Settlement Date, and at the Reset Rate thereafter, payable quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year,
commencing November 16, 1999 (the "Interest Payment Dates").
(b) The Regular Record Dates for the payment of interest on the
Senior Notes on any Interest Payment Date, shall be (i) as long as the Senior
Notes are represented by a Global Senior Note or the Initial Senior Note, the
Business Day preceding each Interest Payment Date or (ii) if the Senior Notes
are issued pursuant to Section 2.3(b) above, the fifteenth Business Day prior
to each Interest Payment Date.
(c) The interest rate on the Senior Notes outstanding on and after
the Remarketing Date will be reset to the Reset Rate. The Reset Rate will be
equal to the rate per annum that results from the Remarketing, provided that
if a Failed Remarketing occurs, the Reset Rate will be equal to (i) the
Two-Year Benchmark Treasury Rate plus (ii) the Applicable Margin.
(d) The amount of interest payable on the Senior Notes for any
period will be computed (i) for any full quarterly period on the basis of a
360-day year of twelve 30-day months and (ii) for any period shorter than a
full quarterly period, on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable on the
Senior Notes is not a Business Day, then payment of the interest payable on
such date will be made on the next day that is a Business Day (and without
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next calendar year, then such payment will be made on
the preceding Business Day.
Section 2.5 REDEMPTION. (a) If a Tax Event occurs and is
continuing, the Company may, at its option and upon not less than 30 nor more
than 60 days' notice to the Holders of the Senior Notes, redeem the Senior
Notes in whole (but not in part) within 90 days following the occurrence of
such Tax Event, at a price equal to, for each Senior Note, the Redemption
Price. The aggregate Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the date of redemption (the "Tax Event Redemption Date")
or such earlier time as the Company determines, provided that the Company
shall have deposited with the Trustee an amount sufficient to pay the
aggregate Redemption Price by 10:00 a.m. on the Tax Event Redemption Date.
Such redemption shall otherwise be in accordance with the provisions of
Article Eleven of the Indenture.
(b) Except as provided in Section 2.5(a), the Company will have no
right to redeem the Senior Notes.
(c) The Senior Notes will not be subject to a sinking fund
provision.
Section 2.6 EVENTS OF DEFAULT. So long as the Senior Notes are held
by the Trust, it shall be an Event of Default with respect to the Senior Notes
if the Trust shall have voluntarily
<PAGE>
or involuntarily dissolved, wound up its business or otherwise terminated its
existence except in connection with (i) the distribution of the Senior Notes
held by the Trust to the holders of the Preferred Securities and Common
Securities in liquidation of their interests in the Trust, (ii) the
redemption of all of the outstanding Preferred Securities and Common
Securities or (iii) a consolidation, conversion, amalgamation, merger or
other transaction involving the Trust that is permitted under Section 3.15 of
the Declaration.
Section 2.7 PAYING AGENT; SECURITY REGISTRAR. If the Senior Notes
are issued in certificated form, the Paying Agent and the Security Registrar
for the Senior Notes shall be the Property Trustee.
Section 2.8 EXTENSION OF INTEREST PAYMENT PERIOD. The Company
shall have the right at any time, and from time to time, during the term of
the Senior Notes, to defer payments of interest by extending the interest
payment period of such Senior Notes for a period not extending, in the
aggregate, beyond the Maturity Date of the Senior Notes (the "Extension
Period"), during which Extension Period no interest shall be due and payable.
To the extent permitted by applicable law, interest, the payment of which
has been deferred because of the extension of the interest payment period
pursuant to this Section 2.8, will bear interest thereon at the rate of 9.75%
until November 16, 2002, and at the Reset Rate thereafter compounded
quarterly for each quarter of the Extension Period ("Compounded Interest").
At the end of the Extension Period, the Company shall pay all interest
accrued and unpaid on the Senior Notes and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Senior Notes
in whose names the Senior Notes are registered in the Security Register on
the first Regular Record Date after the end of the Extension Period. During
any such Extension Period or an Event of Default, however, the Company shall
not (a) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank junior to the
Senior Notes in the right of payment issued by the Company, or (b) make any
guarantee payments with respect to any guarantee by the Company of any
securities of any of its subsidiaries if such guarantee ranks junior to the
Senior Notes in right of payment or (c) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock, except for or as a
result of (i) dividends or distributions in, or options, warrants or rights
to subscribe for or purchase, the Company's common stock; (ii) any
declaration of a dividend in connection with the implementation of a
shareholder's rights plan, or the issuance of shares under any such plan in
the future, or the redemption or repurchase of any such rights pursuant
thereto; (iii) a reclassification of the Company's capital stock solely into
shares of one or more classes or series of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for or into another class or series of the Company's capital stock; (iv) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged; and (v) the purchase of the
Company's common stock in connection with the Company's normal course issuer
bid-purchases for the satisfaction by the Company of its obligations under
any benefit plans for the Company and the Company's subsidiaries' directors,
officers or employees or under any of the Company's dividend reinvestment
plans. Prior to the expiration of any Extension Period, the Company may
further extend such period, provided that such period together with all such
previous and further extensions thereof shall not extend
<PAGE>
beyond the Maturity Date of the Senior Notes. Upon termination of any
Extension Period and the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension
Period except at the end thereof, but the Company, at its option, may prepay
on any Interest Payment Date all or any portion of the interest accrued
during the then elapsed portion of an Extension Period.
Section 2.9. NOTICE OF EXTENSION. The Company shall give written
notice to the Trustee of its election of any Extension Period (or any further
extension thereof) at least five Business Days before the earlier of (i) the
date the interest on the Senior Notes would have been payable except for the
election to begin or extend the Extension Period; (ii) the date the Trustee
is required to give notice to any securities exchange or to Holders of Senior
Notes of the Record Date or the Interest Payment Date, and (iii) the Record
Date.
Section 2.10. PLACE OF PAYMENT. The Place of Payment will be
initially the corporate trust offices of the Trustee which, at the date
hereof, are located at One Bank One Plaza, Suite 1L1-0126, Chicago, Illinois
60670. Attention: Corporate Trust Administration Department.
Section 2.11. LIMITATION ON ISSUANCE OF MORTGAGE BONDS. The
Company will not issue any Mortgage Bonds under its General Mortgage
Indenture and Deed of Trust, dated September 15, 1988, between the Company
and Commerce Bank of Kansas City, N.A., as Trustee (the "General Mortgage"),
without making effective provision, and the Company covenants that in any
such case effective provisions will be made, whereby the Senior Notes shall
be directly secured by the General Mortgage equally and ratably with any and
all other obligations and indebtedness thereby secured.
ARTICLE III
EXPENSES
Section 3.1 PAYMENT OF EXPENSES. In connection with the offering,
sale and issuance of the Senior Notes to the Trust in connection with the
sale of the Preferred Securities and Common Securities by the Trust, the
Company will:
(a) pay for all costs and expenses relating to the offering, sale
and issuance of the Senior Notes, including compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607 of
the Indenture; and
(b) pay for all costs and expenses of the Trust, including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities; the fees
and expenses of the Property Trustee (including, without limitation,
those incurred in connection with the enforcement by the Property
Trustee of the rights of the holders of the Preferred Securities), the
Delaware Trustee and the Regular Trustees; the costs and expenses
relating to the operation of the Trust (including, without limitation,
costs and expenses of accountants, attorneys, statistical or
<PAGE>
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses); and costs and expenses incurred in connection with the
acquisition, financing and disposition of Trust assets;
(c) be primarily liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
ARTICLE IV
COVENANTS
Section 4.1 COVENANTS IN THE EVENT OF AN EVENT OF DEFAULT. As long
as the Senior Notes are held by the Trust, if an Event of Default occurs and
written notice of such event has been given to the Company, then the Company may
not:
(a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
its capital stock; or
(b) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities that rank on a parity
with or junior in interest to the Senior Notes or make any guarantee
payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks on a
parity with or junior in interest to the Senior Notes; other than (i)
purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date
of such Event of Default requiring the Company to purchase capital stock
of the Company, (ii) as a result of a reclassification of the Company's
capital stock for another class or series of the Company's capital
stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the
Company, (v) redemptions or repurchases of any rights pursuant to a
rights agreement and (vi) payments under the Guarantee.
Section 4.2 ADDITIONAL COVENANTS RELATING TO THE TRUST. For as long
as the Preferred Securities remain outstanding, the Company will:
(a) maintain, directly or indirectly, 100% ownership of the Common
Securities;
<PAGE>
(b) cause the Trust to remain a statutory business trust and not
to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by the Declaration;
(c) use its commercially reasonable efforts to ensure that the
Trust will not be an "investment company" required to be registered
under the Investment Company Act of 1940;
(d) not take any action that would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income
tax purposes; and
(e) pay all of the debts and obligations of the Trust (other than
with respect to the securities issued by the Trust) and all costs and
expenses of the Trust (including, but not limited to, all costs and
expenses relating to the organization of the Trust, the fees and
expenses of the trustees and all costs and expenses relating to the
operation of the Trust) and any and all taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed on the Trust by the United States, or any other taxing
authority, so that the net amounts received and retained by the Trust
after paying such expenses will be equal to the amounts the Trust would
have received had no such costs or expenses been incurred by or imposed
on the Trust.
ARTICLE V
ORIGINAL ISSUE OF SENIOR NOTES
Section 5.1 ORIGINAL ISSUE OF SENIOR NOTES. Senior Notes in an
aggregate principal amount of up to $257,731,975 may, upon execution of this
Twelfth Supplemental Indenture, be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Senior Notes upon receipt of a Company Order, without any
further action by the Company.
ARTICLE VI
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 6.1 PREFERRED SECURITY HOLDERS' RIGHTS. Notwithstanding
Section 507 of the Indenture, if the Property Trustee fails to enforce its
rights under the Senior Notes after a holder of Preferred Securities has made
a written request, the holder of Preferred Securities may, to the fullest
extent permitted by law, institute a legal proceeding directly against the
Company to enforce the Property Trustee's rights under the Indenture without
first instituting any legal proceeding against the Property Trustee or any
other Person.
Section 6.2 DIRECT ACTION. Notwithstanding any other provision of
the Indenture, for as long as any Preferred Securities remain outstanding, to
the fullest extent permitted by law,
<PAGE>
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on
the Senior Notes on the date such interest or principal is otherwise payable
(or in the case of redemption, the redemption date), then a holder of
Preferred Securities may institute a proceeding directly against the Company
(a "Direct Action") to enforce payment to such holder of the principal or
interest on Senior Notes having an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Securities of such holder.
Section 6.3 PAYMENTS PURSUANT TO DIRECT ACTIONS. The Company will have
the right to set off against its obligations to the Trust, as Holder of the
Senior Notes, any payment made to a holder of Preferred Securities in
connection with a Direct Action.
ARTICLE VII
REMARKETING
Section 7.1 EFFECTIVENESS OF THIS ARTICLE. Upon a distribution of
the Senior Notes upon the liquidation and dissolution of the Trust which
occurs prior to the Remarketing of the Preferred Securities pursuant to the
Declaration, the Senior Notes shall be Remarketed in accordance with the
Remarketing Procedures where all references in the Remarketing Procedures to
Preferred Securities shall be read as references to the Senior Notes, unless
the context requires otherwise. Until such a distribution, or if such
distribution occurs after the Remarketing of the Preferred Securities
pursuant to the Declaration, this Article VIII will have no effect.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. EXECUTION OF SUPPLEMENTAL INDENTURE. This Twelfth
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Indenture and, as provided in the Indenture, this Twelfth
Supplemental Indenture forms a part thereof.
Section 8.2. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Twelfth Supplemental Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
Section 8.3. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
Section 8.4. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Twelfth Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 8.5. SEPARABILITY CLAUSE. In case any provision in this
Twelfth
<PAGE>
Supplemental Indenture or in the Senior Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 8.6. BENEFITS OF TWELFTH SUPPLEMENTAL INDENTURE. Nothing
in this Twelfth Supplemental Indenture or in the Senior Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the holders, any benefit or any legal or equitable
right, remedy or claim under this Twelfth Supplemental Indenture.
Section 8.7. GOVERNING LAW. This Twelfth Supplemental Indenture
and each Senior Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of said State.
Section 8.8. EXECUTION AND COUNTERPARTS. This Twelfth
Supplemental Indenture may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Twelfth
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
UTILICORP UNITED INC.
[Seal] By: /s/ Dale J. Wolf
----------------------
Name: Dale J. Wolf
Title: Vice President,
Finance
Attest:
/s/ Douglas P. Evanson
- --------------------------------
Name: Douglas P. Evanson
Title: Asst. Treasurer
BANK ONE TRUST COMPANY, NA
as Trustee
<PAGE>
[Seal] By: /s/ Lelind Hansen
-------------------------------
Name: Lelind Hansen
Title: Assistant Vice President
Attest:
/s/ M.J. Frye
- ------------------------------------
Title: Trust Officer
<PAGE>
STATE OF MISSOURI )
) ss.:
COUNTY OF JACKSON )
On the 29th day of September 1999, before me personally came Dale
J. Wolf, to me known, who, being by me duly sworn, did depose and say that he
is Vice President, Finance of UtiliCorp United Inc., the corporation
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
-----------------
Notary Public,
State of --------
STATE OF --------- )
) ss.:
COUNTY OF --------- )
On the ____ day of ________, 199_, before me personally came
________________, to me known, who, being by me duly sworn, did depose and
say that he is ________________ of Bank One Trust Company, NA, the national
banking association described in and which executed the foregoing instrument;
that he knows the seal of said association; that the seal affixed to said
instrument is such association seal; that it was so affixed by authority of
the Board of Directors of said association, and that he signed his name
thereto by like authority.
----------------------
Notary Public,
State of -------------
<PAGE>
EXHIBIT A
[FORM OF FACE OF SENIOR DEFERRABLE NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR
OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
$257,731,975
UTILICORP UNITED INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay UCU Capital Trust I, or registered
assigns, the principal sum of Two Hundred and Fifty Seven Million, Seven
Hundred and Thirty One Thousand, Nine Hundred and Seventy Five Dollars on
November 16, 2004, and to pay interest on said principal sum from September
29, 1999, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year (an "Interest Payment Date")
commencing November 16, 1999, at the rate of 7.35% per annum until November
16, 2002, and at the Reset Rate thereafter, until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if
any, and (without duplication and to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest
at the same rate per annum compounded quarterly. Any deferred interest shall
accrue interest at the rate set forth in the Twelfth Supplemental Indenture.
The amount of interest payable for any period will be computed (1) for any
full quarterly period on the basis of a
<PAGE>
360-day year of twelve 30-day months and (2) for any period shorter than a
full quarterly period, on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is payable is not
a Business Day, then payment of the interest payable on such date will be
made on the next day that is a Business Day (and without any interest or
other payment in respect of such delay), except that, if such Business Day is
in the next calendar year, then such payment will be made on the preceding
Business Day. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, referred to on the reverse side hereof, be paid to the Holder in
whose name this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Regular
Record Date for such interest installment, which, shall be the close of
business on the Business Day preceding such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be
paid to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
to be fixed by the Trustee referred to on the reverse side hereof for the
payment of such defaulted interest, notice whereof shall be given to the
Holders of the Security not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. The Company may pay principal by cheque payable in such money or by
wire transfer to a dollar account maintained by the Holder (if the Holder of
the Security holds an aggregate principal amount of Securities in excess of
$5,000,000). The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the Holder hereof to the
Registrar, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with the
terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been executed
by the Trustee or an Authenticating Agent, by manual signature of one of its
Authorized Officers, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose. The provisions of
this Security are continued on the reverse side hereof, and such continued
provisions shall for all purposes have the same effect as though fully set
forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: September 29, 1999 By: /s/ Dale J. Wolf
--------------------------------------
Dale J. Wolf
Vice President, Finance, Treasurer
and Secretary
Attest:
By: /s/ Douglas P. Evanson
----------------------
Douglas P. Evanson
Assistant Treasurer
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: September 29, 1999 BANK ONE TRUST COMPANY, NA, as
Trustee
By: /s/ Lelind Hansen
------------------
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SENIOR DEFERRABLE NOTE)
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
This Senior Deferrable Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $257,731,975.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
If a Tax Event occurs and is continuing, the Company may, at its
option and upon not less than 30 nor more than 60 days' notice to the Holders
of the Securities, redeem the Securities in whole (but not in part) within 90
days following the occurrence of such Tax Event at the Redemption Price. The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
each such Holder.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the
<PAGE>
rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than 66 2/3% in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities registered in
the names of Persons other than the Depositary with respect to such series or
its nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such series or at any time ceases to
be a clearing agency registered as such under the Securities Exchange Act of
1934, (y) the Company executes and delivers to the Trustee an Officers'
Certificate providing that this Security shall be so exchangeable or (z)
there shall have occurred and be continuing an Event of Default with respect
to the Securities of such series. Securities so issued in exchange for this
Security shall be of the same series, having the same interest rate, if any,
and maturity and having the same terms as this Security, in authorized
denominations and in the aggregate having the same principal amount as this
Security and registered in such names as the Depositary for such Global
Security shall direct.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange,
<PAGE>
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
EXHIBIT B
[FORM OF FACE OF SENIOR DEFERRABLE NOTE]
REGISTERED REGISTERED
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
$257,731,975
UTILICORP UNITED INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay UCU Capital Trust I, or registered assigns, the principal
sum of Two Hundred and Fifty Seven Million, Seven Hundred and Thirty One
Thousand, Nine Hundred and Seventy Five Dollars on November 16, 2004, and to pay
interest on said principal sum from September 29, 1999, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on February 16, May 16, August 16 and November 16 of each
year (an "Interest Payment Date") commencing November 16, 1999, at the rate of
7.35% per annum until November 16, 2002, and at the Reset Rate thereafter, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. Any
deferred interest shall accrue interest at the rate set forth in the Twelfth
Supplemental Indenture. The amount of interest payable for any period will be
computed (1) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months and (2) for any period shorter than a full quarterly
period, on the basis of a 30-day month and, for any period less than a month, on
the basis of the actual number of days elapsed per 30-day month. In the event
that any date on which interest is payable is not a Business Day, then payment
of the interest payable on such date will be made on the next day that is a
Business Day (and without any interest or other payment in respect of such
delay), except that, if such Business Day is in the next calendar year, then
such payment will be made on the preceding Business Day. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, referred to on the
reverse side hereof, be paid to the Holder in whose name this Security (or one
or more Predecessor Securities, as defined in said Indenture) is registered at
the close of business on the
<PAGE>
Regular Record Date for such interest installment, which, shall be the close
of business on the Business Day preceding such Interest Payment Date. Any
such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
may be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date to be fixed by the Trustee referred to on the reverse side hereof
for the payment of such defaulted interest, notice whereof shall be given to
the Holders of the Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on
this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts. The Company may pay principal by cheque payable in such money or by
wire transfer to a dollar account maintained by the Holder (if the Holder of
the Security holds an aggregate principal amount of Securities in excess of
$5,000,000). The Company may pay interest by mailing a dollar check to the
Holder's registered address or, upon application by the Holder hereof to the
Registrar, not later than the applicable Record Date, by wire transfer to a
dollar account maintained by the holder (if the holder of the Security holds
an aggregate principal amount of Securities in excess of $5,000,000).
Interest on the Securities is deferrable in accordance with the
terms of the Twelfth Supplemental Indenture.
This Security is, to the extent provided in the Indenture,
unsecured and will rank in right of payment on a parity with all other
unsecured and unsubordinated obligations of the Company.
Unless the Certificate of Authentication hereon has been executed
by the Trustee or an Authenticating Agent, by manual signature of one of its
Authorized Officers, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose. The provisions of
this Security are continued on the reverse side hereof, and such continued
provisions shall for all purposes have the same effect as though fully set
forth at this place.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UTILICORP UNITED INC.
Dated: September 29, 1999 By: /s/ Dale J. Wolf
----------------------------------
Dale J. Wolf
Vice President, Finance, Treasurer
and Secretary
Attest:
By: /s/ Douglas P. Evanson
----------------------
Douglas P. Evanson
Assistant Treasurer
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: September 29, 1999 BANK ONE TRUST COMPANY, NA, as
Trustee
By: /s/ Lelind Hansen
------------------
Authorized Officer
<PAGE>
(FORM OF REVERSE OF SENIOR DEFERRABLE NOTE)
UTILICORP UNITED INC.
7.35% SENIOR DEFERRABLE NOTE DUE 2004
This Senior Deferrable Note is one of a duly authorized series of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of November 1,
1990, as amended and supplemented (as amended and supplemented, the
"Indenture"), between the Company and Bank One Trust Company, NA (formerly
know as The First National Bank of Chicago), as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the face hereof, limited in aggregate principal amount to $257,731,975.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
If a Tax Event occurs and is continuing, the Company may, at its
option and upon not less than 30 nor more than 60 days' notice to the Holders
of the Securities, redeem the Securities in whole (but not in part) within 90
days following the occurrence of such Tax Event at the Redemption Price. The
Redemption Price shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by
each such Holder.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the
<PAGE>
rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of not less than 66 2/3% in principal amount of the Securities at
the time Outstanding of all series to be affected (voting as a class). The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of a Security of the series of which this
Security is a part is registrable in the Security Register, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and
interest, if any, on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part are
issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
<PAGE>
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
