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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
8-K
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Current
Report
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Pursuant
to Section 13 or 15(d) of the
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Securities
Exchange Act of 1934
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Date
of Report (Date of earliest event reported): July 18, 2008
(July 14, 2008)
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Commission
File
Number
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Registrant,
State of Incorporation,
Address
and Telephone Number
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I.R.S.
Employer
Identification
Number
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001-32206
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GREAT
PLAINS ENERGY INCORPORATED
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43-1916803
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(A
Missouri Corporation)
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1201
Walnut Street
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Kansas
City, Missouri 64106
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(816)
556-2200
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NOT
APPLICABLE
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(Former
name or former address,
if
changed since last report)
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000-51873
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KANSAS
CITY POWER & LIGHT COMPANY
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44-0308720
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(A
Missouri Corporation)
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1201
Walnut Street
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Kansas
City, Missouri 64106
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(816)
556-2200
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NOT
APPLICABLE
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(Former
name or former address,
if
changed since last report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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[ ]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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[ ]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[ ]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act
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(17
CFR 240.14d-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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This
combined Current Report on Form 8-K is being filed by Great Plains Energy
Incorporated (Great Plains Energy) and Kansas City Power & Light Company
(KCP&L). KCP&L is a wholly owned subsidiary of Great Plains
Energy and represents a significant portion of its assets, liabilities,
revenues, expenses and operations. Thus, all information contained in
this report relates to, and is filed by, Great Plains
Energy. Information that is specifically identified in this report as
relating solely to Great Plains Energy, such as its financial statements and all
information relating to Great Plains Energy’s other operations, businesses and
subsidiaries, including Aquila, Inc. (“Aquila”) does not relate to, and is not
filed by, KCP&L. KCP&L makes no representation as to that
information. Neither Great Plains Energy nor Aquila has
any obligation in respect of KCP&L’s debt securities and holders of such
securities should not consider Great Plains Energy’s or Aquila’s financial
resources or results of operations in making a decision with respect to
KCP&L’s debt securities. Similarly, KCP&L has no obligation
in respect of securities of Great Plains Energy or Aquila.
INTRODUCTORY
NOTE
On July
14, 2008, Aquila completed its merger (the “Merger”) with Gregory Acquisition
Corp. (“Merger Sub”), a wholly-owned subsidiary of Great Plains Energy, as a
result of which Aquila is now a wholly-owned subsidiary of Great Plains
Energy. The Merger was effected pursuant to an Agreement and Plan of
Merger (the “Merger Agreement”), dated as of February 6, 2007, entered into by
and among Aquila, Great Plains Energy, Merger Sub and Black Hills Corporation
(“Black Hills”).
Immediately
prior to the Merger, Aquila sold its Colorado electric utility assets and its
Colorado, Iowa, Kansas and Nebraska gas utility assets (the “Asset Sale
Transactions”) to Black Hills. The assets were sold to Black Hills
for a base purchase price of $940 million, subject to working capital and
certain other adjustments. The net proceeds received by Aquila at
closing were approximately $909 million, after giving effect to approximately
$31 million in estimated working capital adjustments. The Asset Sale
Transactions were effected pursuant to an Asset Purchase Agreement, dated as of
February 6, 2007, entered into by and among Aquila, Black Hills, Great Plains
Energy and Merger Sub and a Partnership Interests Purchase Agreement, dated as
of February 6, 2007, entered into by and among Aquila, Aquila Colorado, LLC,
Black Hills, Great Plains Energy and Merger Sub (collectively, the “Asset Sale
Agreements”).
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Item
1.01
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Entry
into a Material Definitive
Agreement
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Inter-utility service
arrangements
On July
14, 2008, after consummation of the Merger, approximately 900 Aquila employees
became employees of KCP&L. The remainder of Aquila employees
either became employees of Black Hills or its affiliates pursuant to the Asset
Sale Agreements, or were severed.
Although
KCP&L and Aquila are separate, wholly-owned subsidiaries of Great Plains
Energy and their legal obligations will remain separate, the utility businesses
of KCP&L and Aquila will be operationally integrated. KCP&L
employees will operate and manage the properties of both KCP&L and
Aquila. In connection with this operational integration, other
services and goods will be transferred between KCP&L and
Aquila. Pursuant to Missouri Public Service Commission (the
“Commission”) regulations and the Commission’s July 1, 2008, Report and Order
(the “Order”) authorizing the Merger, the price of goods and services
transferred between KCP&L and Aquila will be based on the cost of the goods
and services to the providing company. These arrangements will be
reflected in a joint operating agreement
between
Aquila and KCP&L. The Order requires this joint operating
agreement to be filed with the Commission by October 9, 2008.
The
information provided under Item 2.03 is incorporated herein by
reference.
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Item
2.01
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Completion
of Acquisition or Disposition of
Assets
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On July
14, 2008, the previously announced acquisition of Aquila pursuant to the Merger
Agreement was completed. In accordance with the terms of the Merger
Agreement, Merger Sub was merged with and into Aquila (the "Merger"), Aquila has
become a wholly owned subsidiary of Great Plains Energy and each share of Aquila
common stock issued and outstanding immediately prior to the effective time of
the Merger, other than Dissenting Shares (as such term is defined in the Merger
Agreement), was converted into the right to receive $1.80 in cash and 0.0856 of
a share of Great Plains Energy common stock. Immediately prior to the
effective time of the Merger, Aquila, as previously announced, sold to Black
Hills its natural gas utility businesses in Colorado, Iowa, Kansas and Nebraska
and its electric utility business in Colorado. The aggregate purchase
price paid, at closing, to Aquila by Black Hills was approximately $909 million,
after giving effect to approximately $31 million in estimated working capital
adjustments. Such purchase price is subject to a post-closing
adjustment.
A copy of
the press release issued on July 14, 2008 announcing the completion of the
acquisition of Aquila is attached hereto as Exhibit 99.1 and is incorporated
herein by reference.
Great
Plains Energy will file by amendment to this Current Report on Form 8-K the
financial statements and pro forma financial information required by Items
9.01(a) and (b) of Form 8-K within the required time period.
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Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant
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Immediately
prior to the consummation of the Merger, Great Plains Energy and KCP&L had
investment-grade credit ratings and Aquila had non-investment grade credit
ratings. Great Plains Energy previously stated its expectation that,
after the Merger was consummated, Great Plains Energy and KCP&L would
continue to be investment grade, and that Aquila would improve to investment
grade as a consequence of, among other things, Great Plains Energy guarantees of
Aquila’s outstanding debt.
On July
14 and 15, 2008, Great Plains Energy issued guaranties relating to approximately
$984 million of Aquila’s outstanding debt, and expects to issue guarantees
relating to an additional approximate $38 million of Aquila’s outstanding
debt. These guaranties collectively will cover substantially all of
Aquila’s outstanding debt. The guaranties provide Great Plains Energy’s
unconditional guaranty, as a primary obligor, of the payment and performance of
Aquila’s obligations.
The
following Aquila credit facilities are guaranteed by Great Plains Energy
guaranties dated as of July 14, 2008:
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Financing
Agreement dated as of April 22, 2005, as amended, among Aquila, the
lenders from time to time party thereto, and Union Bank of California,
N.A. as Agent, originally filed as Exhibit 10.1 to Aquila’s Current Report
on Form 8-K filed on April 26, 2005. The Financing Agreement
currently provides a $65 million revolving line of credit, which
terminates on April 22, 2009. The facility is secured by the
accounts receivables of Aquila’s Missouri regulated utility
operations. Loans bear
interest
at LIBOR plus a margin determined by Aquila’s credit
ratings. There is currently approximately $37 million in
outstanding borrowings.
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Credit
Agreement dated as of August 31, 2005, as amended, among Aquila, the banks
named therein, and Union Bank of California, N.A., as Administrative
Agent, originally filed as Exhibit 10.1 to Aquila’s Current Report on Form
8-K filed on September 6, 2005. As reported in Aquila’s Current
Report on Form 8-K filed on July 14, 2008, a maximum of $131 million may
be borrowed under this facility. Obligations under this
facility are secured by a mortgage on the assets of Aquila’s Missouri
Public Service electric utility division. Loans bear interest
at LIBOR plus a margin determined by Aquila’s credit
ratings. Aquila may obtain loans and issue letters of credit in
support of its participation in the construction of the Iatan No. 2
coal-fired power plant and pollution controls at the Iatan No. 1 power
plant. Extensions of credit under this facility are due and
payable on August 31, 2010. There are currently no borrowings
outstanding under this facility.
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The
following series of Aquila long-term debt are guaranteed by Great Plains Energy
guaranties dated as of July 15, 2008. The aggregate principal amount
listed for each series is the current amount outstanding.
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$500,000,000
aggregate principal amount of 11.875% Senior Notes due July 1,
2012;
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$197,000,000
aggregate principal amount of 7.75% Senior Notes due June 15,
2011;
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$137,310,000
aggregate principal amount of 7.95% Senor Notes due February 1,
2011;
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$80,850,000
aggregate principal amount of 8.27% Senior Notes due November 15, 2021;
and
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$68,489,000
aggregate principal amount of 7.625% Senior Notes due November 15,
2009.
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None of
the guaranteed obligations are subject to default or prepayment as a result of
downgrading of Aquila securities, although such a downgrading has in the past,
and could in the future, increase interest charges under the Financing
Agreement, the Credit Agreement, the 11.875% Senior Notes and the 7.95% Senior
Notes identified above.
Copies of
the guaranties covering the referenced credit facilities are attached as
Exhibits 10.1 and 10.2. Copies of the guaranties covering the
referenced series of long-term debt are attached as Exhibits 10.3 through
10.7.
Please
refer to the information provided under Item 2.01 for a description of the
Merger, and under Item 8.01 regarding recent credit rating agency actions
concerning Great Plains Energy, KCP&L and Aquila.
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Item
5.04
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Temporary
Suspension of Trading Under Registrant’s Employee Benefit
Plans
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As
previously disclosed by Great Plains Energy on Form 8-K, Great Plains Energy
sent a notice on June 27, 2008, to its directors and executive officers
informing them of a blackout period pursuant to Regulation BTR. The
notice informed the directors and executive officers that activity in the
Aquila, Inc. (“Aquila”) common stock fund (the “Fund”) of the Aquila Retirement
Investment (401(k)) Plan (the “Plan”) would be closed temporarily to any
transactions in connection with the merger (the “Merger”) involving Aquila and
Gregory Acquisition Corp., pursuant to which Aquila would become a wholly-owned
subsidiary of Great Plains Energy. The blackout period in the Plan
was necessary to ensure that all Aquila common stock transactions in the Fund
were fully completed before the effective time of the Merger and so that, after
the effective time of the Merger, the administrator of the Plan could process
the exchange of Aquila common stock for Great Plains Energy common stock and
cash. The notice stated that that blackout period was expected to
start during the week of July 6, 2008, and was expected to end during the week
of July 20, 2008. The notice further stated that the corresponding
trading blackout
period
would be in effect for the portion of the Plan blackout period that occurred
after the effective time of the Merger, which was anticipated to be during the
week of July 13, 2008.
The
Merger was consummated on July 14, 2008, and the trading blackout period
consequently started that day. On July 17, 2008, Great Plains Energy
was informed by the administrator of the Fund that the blackout period ended
that day. The processing of the exchange of Aquila common stock for
Great Plains Energy common stock and cash did not take as long as previously
anticipated. On July 18, 2008, Great Plains Energy sent a notice to
its directors and executive officers (the “Updated Notice”) regarding the actual
beginning and end dates of the blackout period. A copy of the Updated
Notice is attached as Exhibit 99.2 to this Form 8-K and is incorporated herein
by reference in its entirety.
Questions
concerning the blackout period can be addressed to Mark G. English, General
Counsel and Assistant Secretary, by telephone at (816) 556-2200 or in writing at
Great Plains Energy, 1201 Walnut, Kansas City, MO 64106.
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Item
8.01
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Other
Information
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On July
14, 2008, Standard & Poor’s affirmed Great Plains Energy’s credit ratings,
and removed the company from CreditWatch with negative
implications. Standard & Poor’s also affirmed KCP&L’s
long-term debt credit rating, raised the short-term corporate credit rating to
“A-2” from “A-3”, and removed the company from CreditWatch with negative
implications. Further, Standard & Poor’s raised Aquila’s
corporate credit rating to “BBB” from “BB-“, its senior secured debt credit
rating to “BBB+” from “BB+”, and its senior unsecured debt credit rating to
“BBB” from “BB-“.
On July
15, 2008, Moody’s Investors Service affirmed all of its ratings of Great Plains
Energy and KCP&L, and raised Aquila’s senior unsecured rating to “Baa2” from
“Ba3”. Moody’s assigned a negative rating outlook to all three
companies.
A
securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time by the assigning rating
agency.
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Item
9.01
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Financial
Statements and Exhibits
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(a) Financial
statements of businesses acquired
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The
required financial statements of Aquila, Inc. will be filed as part of an
amendment to this Current Report on Form 8-K within the time period
required by Item 9.01(a)(4).
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(b) Pro
forma financial information
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The
required pro forma financial information will be filed as part of an
amendment to this Current Report on Form 8-K within the time period
required by Item 9.01(b)(2).
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(d)
Exhibit
No.
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10.1
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Guaranty
dated as of July 14, 2008, between Great Plains Energy Incorporated and
Union Bank of California, N.A., related to Financing Agreement dated as of
April 22, 2005, as amended, among Aquila, Inc., the lenders from time to
time party thereto, and Union Bank of California, N.A. as
Agent.
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10.2
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Guaranty
dated as of July 14, 2008, between Great Plains Energy Incorporated and
Union Bank of California, N.A., related to Credit Agreement dated as of
August 31, 2005, as amended, among Aquila, Inc., the banks named therein,
and Union Bank of California, N.A., as Administrative
Agent
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10.3
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Guaranty
dated as of July 15, 2008, issued by Great Plains Energy Incorporated in
favor of Union Bank of California, N.A., as successor trustee, and the
holders of the Aquila, Inc., 11.875% Senior Notes due July 1,
2012.
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10.4
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Guaranty
dated as of July 15, 2008, issued by Great Plains Energy Incorporated in
favor of Union Bank of California, N.A., as successor trustee, and the
holders of the Aquila, Inc., 7.75% Senior Notes due June 15,
2011.
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10.5
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Guaranty
dated as of July 15, 2008, issued by Great Plains Energy Incorporated in
favor of Union Bank of California, N.A., as successor trustee, and the
holders of the Aquila, Inc., 7.95% Senior Notes due February 1,
2011.
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10.6
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Guaranty
dated as of July 15, 2008, issued by Great Plains Energy Incorporated in
favor of Union Bank of California, N.A., as successor trustee, and the
holders of the Aquila, Inc., 8.27% Senior Notes due November 15,
2021.
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10.7
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Guaranty
dated as of July 15, 2008, issued by Great Plains Energy Incorporated in
favor of Union Bank of California, N.A., as successor trustee, and the
holders of the Aquila, Inc., 7.625% Senior Notes due November 15,
2009.
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99.1
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Press
release issued by Great Plains Energy Incorporated on July 14,
2008.
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99.2
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Notice
to Directors and Officers Concerning Limitations on Trading in Great
Plains Energy Common Stock
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SIGNATURES
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.
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GREAT
PLAINS ENERGY INCORPORATED
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/s/
Lori A. Wright
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Lori
A. Wright
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Controller
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KANSAS
CITY POWER & LIGHT COMPANY
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/s/
Lori A. Wright
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Lori
A. Wright
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Controller
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Date: July
18, 2008
Exhibit
10.1
FORM OF
GUARANTY
dated as
of
July 14,
2008
between
GREAT
PLAINS ENERGY INCORPORATED,
and
UNION
BANK OF CALIFORNIA, N.A.,
as
Agent
TABLE OF
CONTENTS
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ARTICLE
I
DEFINITIONS
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SECTION
1.01
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Financing
Agreement
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1
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SECTION
1.02
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Other
Defined Terms
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1
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ARTICLE
II
GUARANTY
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SECTION
2.01
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Guaranty
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2
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SECTION
2.02
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Guaranty
of Payment
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2
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SECTION
2.03
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No
Limitations
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SECTION
2.04
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Reinstatement
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2
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SECTION
2.05
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Agreement
To Pay; Subrogation
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3
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SECTION
2.06
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Information
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3
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ARTICLE
III
INDEMNITY,
SUBROGATION AND SUBORDINATION
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SECTION
3.01
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Indemnity
and Subrogation
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3
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SECTION
3.02
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Subordination
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3
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ARTICLE
IV
MISCELLANEOUS
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SECTION
4.01
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Notices
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3
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SECTION
4.02
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Waivers;
Amendment
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4
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SECTION
4.03
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Successors
and Assigns
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4
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SECTION
4.04
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Survival
of Agreement
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4
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SECTION
4.05
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Counterparts;
Effectiveness; Several Agreement
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4
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SECTION
4.06
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Severability
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5
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SECTION
4.07
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Right
of Set-Off
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5
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SECTION
4.08
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Governing
Law; Jurisdiction; Consent to Service of Process
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5
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SECTION
4.09
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WAIVER
OF JURY TRIAL
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6
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SECTION
4.10
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Headings
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6
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SECTION
4.11
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Termination
or Release
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6
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i
GUARANTY
dated as of July 14, 2008, between GREAT PLAINS ENERGY INCORPORATED (the “
Guarantor
”) and UNION
BANK OF CALIFORNIA, N.A., as Agent.
Reference
is made to the Financing Agreement dated as of April 22, 2005 (as amended,
supplemented or otherwise modified from time to time, the “
Financing
Agreement
”), among Aquila, Inc. (the “
Borrower
”), the
lenders from time to time party thereto (collectively, the “
Lenders
” and
individually, a “
Lender
”), and Union
Bank of California, N.A. as Agent (together with its successors in such
capacity, the “
Agent
”). The
Lenders have extended credit to the Borrower subject to the terms and conditions
set forth in the Financing Agreement. Pursuant to an Agreement and
Plan of Merger dated as of February 6, 2007, by and among the Guarantor,
Borrower, Black Hills Corporation and Gregory Acquisition Corp. (the “
Merger Agreement
”),
the Borrower has agreed to be acquired by the Guarantor. The
transaction will be consummated by merging Gregory Acquisition Corp. with and
into the Borrower (the “
Merger
”), with the
Borrower continuing as the surviving corporation. Upon completion of
the Merger, the Borrower will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor will derive substantial benefits from the extension of credit
to the Borrower pursuant to the Financing Agreement and is willing to execute
and deliver this Agreement. Accordingly, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01.
Financing Agreem
ent
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Financing Agreement.
SECTION 1.02.
Other Defined
Terms
. As
used in this Agreement, the following terms have the meanings specified
below:
“
Agreement
” means this
Guaranty.
“
Financing
Agreement
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Borrower and the Guarantor.
“
Obligations
” shall
mean all obligations of the Borrower under the Financing Agreement.
“
Person
” shall mean
any natural person, corporation, business trust, joint venture, association,
company, limited liability company, partnership, governmental authority or other
entity.
ARTICLE
II
GUARANTY
SECTION 2.01.
Guaranty
. The
Guarantor unconditionally guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment and performance of the
Obligations. The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. The Guarantor waives
presentment to, demand of payment from and protest to the Borrower of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION 2.02.
Guaranty of
Payment
. The
Guarantor further agrees that its guarantee hereunder constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by the Agent or any Lender to any security held for the payment of
the Obligations, or to any balance of any deposit account or credit on the books
of the Agent or any Lender in favor of the Borrower or any other
Person.
SECTION 2.03.
No
Limitations
. (a) Except
for termination of the Guarantor’s obligations hereunder as expressly provided
in
Section
4.11
, the obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations, or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantor hereunder shall not be discharged or
impaired or otherwise affected by (i) the failure of the Agent or any Lender to
assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by
the Agent or any Lender for the Obligations; (iv) any default, failure or delay,
willful or otherwise, in the performance of the Obligations; or (v) any other
act or omission that may or might in any manner or to any extent vary the risk
of the Guarantor or otherwise operate as a discharge of the Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Borrower or the unenforceability
of the Obligations, or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower, other than the payment in full in
cash of all the Obligations.
SECTION 2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Agent or
any Lender upon the bankruptcy or reorganization of the Borrower or
otherwise.
2
SECTION 2.05.
Agreement To Pay;
Subrogation
. In
furtherance of the foregoing and not in limitation of any other right that the
Agent or any Lender has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Borrower to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Agent for distribution to the Lenders in cash
the amount of such unpaid Obligation. Upon payment by the Guarantor
of any sums to the Agent as provided above, all rights of the Guarantor against
the Borrower arising as a result thereof by way of right of subrogation,
contribution, indemnity or otherwise shall in all respects be subject to Article
III.
SECTION 2.06.
Information
. The
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations, and the nature, scope
and extent of the risks that the Guarantor assumes and incurs hereunder, and
agrees that none of the Agent or the other Lenders will have any duty to advise
the Guarantor of information known to it or any of them regarding such
circumstances or risks.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION 3.01.
Indemnity and
Subrogation
. In
addition to all such rights of indemnity and subrogation as the Guarantor may
have under applicable law (but subject to
Section 3.02
), the
Borrower agrees that in the event a payment of an obligation shall be made by
the Guarantor under this Agreement, the Borrower shall indemnify the Guarantor
for the full amount of such payment and the Guarantor shall be subrogated to the
rights of the Person to whom such payment shall have been made to the extent of
such payment.
SECTION 3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under
Section
3.01
and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of
the Borrower or the Guarantor to make the payments required by
Section 3.01
(or any
other payments required under applicable law or otherwise) shall in any respect
limit the obligations and liabilities of the Guarantor with respect to its
obligations hereunder, and the Guarantor shall remain liable for the full amount
of the obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION 4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the Financing
Agreement. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Borrower as provided in the Financing
Agreement.
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SECTION 4.02.
Waivers; Amendment
. (a) No
failure or delay by the Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any
departure by the Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this
Section 4.02
, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Agent or any Lender may have had notice or
knowledge of such Default at the time. No notice or demand on any
Guaranty Party in any case shall entitle any Guaranty Party to any other or
further notice or demand in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Agent and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Financing Agreement.
SECTION 4.03.
Successors and
Assigns
. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantor or the Agent
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns. The Guaranty Parties shall
not have the right to assign or transfer their respective rights or obligations
hereunder or any interest herein (and any such assignment or transfer shall be
void) except as expressly contemplated by this Agreement or the Credit
Agreement.
SECTION 4.04.
Survival of
Agreement
. All
covenants, agreements, representations and warranties made by the Guaranty
Parties in the Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and shall survive the execution and delivery of the Loan Documents and the
making of any Loans, regardless of any investigation made by any Lender or on
its behalf and notwithstanding that the Agent or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Financing Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under any Loan Document is outstanding
and unpaid and so long as the Commitments have not expired or
terminated.
SECTION 4.05.
Counterparts; Effectiveness;
Several Agreement
. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by
facsimile transmission or other electronic communication shall be
as
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effective
as delivery of a manually signed counterpart of this Agreement. This
Agreement shall become effective as to the Guaranty Parties when (i) a
counterpart hereof executed on behalf of the Guaranty Parties shall have been
delivered to the Agent and a counterpart hereof shall have been executed on
behalf of the Agent and (ii) the closing of the Merger shall have
occurred.
SECTION 4.06.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 4.07.
Right of
Set-Off
. In
addition to any rights and remedies of the Lenders provided by Law, upon the
occurrence and during the continuance of any Event of Default, each Lender is
authorized at any time and from time to time, without prior notice to the
Borrower or the Guarantor, any such notice being waived by the Borrower and the
Guarantor to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other Indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Guaranty Parties
against any and all obligations owing to such Lender hereunder, now or hereafter
existing, irrespective of whether or not such Lender shall have made demand
under this Agreement and although such obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness. Each Lender agrees promptly to notify the
Borrower and the Agent after any such set off and application made by such
Lender. The rights of each Lender under this
Section 4.07
are in
addition to other rights and remedies (including other rights of setoff) that
the Agent and such Lender may have.
SECTION 4.08.
Governing Law; Jurisdiction;
Consent to Service of Process
.
(a) This Agreement shall be governed by and construed in accordance
with the law of the State of New York.
(b) Each
of the Guaranty Parties hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York City and of the United States District
Court for the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Guarantor, or its properties in the courts of any
jurisdiction.
5
(c) Each
of the Guaranty Parties hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this
Section
4.08
. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in
Section
4.01
. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 4.09.
WAIVER OF JURY
TRIAL
. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.09.
SECTION 4.10.
Headings
. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION 4.11.
Termination or
Release
. (a) This
Agreement and the guaranty made herein shall terminate with respect to all
Obligations when all the outstanding Obligations have been indefeasibly paid in
full and the Lenders have no further commitment to lend or extend credit under
the Financing Agreement.
(b) In
connection with any termination or release pursuant to paragraph (a), the Agent
shall execute and deliver to the Guarantor, at the Guarantor’s expense, all
documents that the Guarantor shall reasonably request to evidence such
termination or release.
6
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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GREAT
PLAINS ENERGY
INCORPORATED
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By:
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/s/
Terry Bassham
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Name:
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Terry
Bassham
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Title:
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Executive
Vice President –
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Finance
and Strategic
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Development
and Chief
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Financial
Officer
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IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Borrower
has executed this Agreement as of the date first written above.
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AQUILA,
INC.
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By:
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/s/
Michael Cole
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Name:
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Michael
Cole
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Title:
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Vice
President, Finance & Treasurer
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
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UNION
BANK OF CALIFORNIA, N.A., as Agent
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By:
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/s/
Susan K. Johnson
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Name:
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Susan
K. Johnson
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Title:
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Vice
President
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Exhibit
10.2
FORM OF
GUARANTY
dated as
of
July 14,
2008
between
GREAT
PLAINS ENERGY INCORPORATED,
and
UNION
BANK OF CALIFORNIA, N.A.,
as
Administrative Agent
TABLE OF
CONTENTS
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ARTICLE
I
DEFINITIONS
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SECTION
1.01
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Financing
Agreement
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1
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SECTION
1.02
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Other
Defined Terms
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1
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ARTICLE
II
GUARANTY
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SECTION
2.01
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Guaranty
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2
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SECTION
2.02
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Guaranty
of Payment
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2
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SECTION
2.03
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No
Limitations
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2
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SECTION
2.04
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Reinstatement
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2
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SECTION
2.05
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Agreement
To Pay; Subrogation
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3
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SECTION
2.06
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Information
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3
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ARTICLE
III
INDEMNITY,
SUBROGATION AND SUBORDINATION
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SECTION
3.01
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Indemnity
and Subrogation
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3
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SECTION
3.02
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Subordination
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3
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ARTICLE
IV
MISCELLANEOUS
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SECTION
4.01
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Notices
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3
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SECTION
4.02
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Waivers;
Amendment
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4
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SECTION
4.03
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Successors
and Assigns
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4
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SECTION
4.04
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Survival
of Agreement
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4
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SECTION
4.05
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Counterparts;
Effectiveness; Several Agreement
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4
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SECTION
4.06
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Severability
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5
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SECTION
4.07
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Right
of Set-Off
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5
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SECTION
4.08
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Governing
Law; Jurisdiction; Consent to Service of Process
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5
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SECTION
4.09
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WAIVER
OF JURY TRIAL
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6
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SECTION
4.10
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Headings
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6
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SECTION
4.11
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Termination
or Release
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6
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GUARANTY
dated as of July 14, 2008, between GREAT PLAINS ENERGY INCORPORATED (the “
Guarantor
”) and UNION
BANK OF CALIFORNIA, N.A., as Administrative Agent.
Reference
is made to the Credit Agreement dated as of August 31, 2005 (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement
”),
among Aquila, Inc. (the “
Borrower
”), the
lenders from time to time party thereto (collectively, the “
Lenders
” and
individually, a “
Lender
”), and Union
Bank of California, N.A., as Administrative Agent (together with its successors
in such capacity, the “
Administrative
Agent
”), as Issuing Bank and as Sole Lead Arranger. The
Lenders have extended credit to the Borrower subject to the terms and conditions
set forth in the Credit Agreement. Pursuant to an Agreement and Plan
of Merger dated as of February 6, 2007, by and among the Guarantor, Borrower,
Black Hills Corporation and Gregory Acquisition Corp. (the “
Merger Agreement
”),
the Borrower has agreed to be acquired by the Guarantor. The
transaction will be consummated by merging Gregory Acquisition Corp. with and
into the Borrower (the “
Merger
”), with the
Borrower continuing as the surviving corporation. Upon completion of
the Merger, the Borrower will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor will derive substantial benefits from the extension of credit
to the Borrower pursuant to the Credit Agreement and is willing to execute and
deliver this Agreement. Accordingly, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Credit
Agreement
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Credit Agreement.
SECTION
1.02.
Other Defined
Terms
. As
used in this Agreement, the following terms have the meanings specified
below:
“
Agreement
” means this
Guaranty.
“
Credit Agreement
” has
the meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Borrower and the Guarantor.
“
Obligations
” shall
mean all obligations of the Borrower under the Credit Agreement.
“
Person
” shall mean
any natural person, corporation, business trust, joint venture, association,
company, limited liability company, partnership, governmental authority or other
entity.
ARTICLE
II
GUARANTY
SECTION
2.01.
Guaranty
. The
Guarantor unconditionally guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment and performance of the
Obligations. The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. The Guarantor waives
presentment to, demand of payment from and protest to the Borrower of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The
Guarantor further agrees that its guarantee hereunder constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by the Administrative Agent or any Lender to any security held for
the payment of the Obligations, or to any balance of any deposit account or
credit on the books of the Administrative Agent or any Lender in favor of the
Borrower or any other Person.
SECTION
2.03.
No
Limitations
.
(a) Except for termination of the Guarantor’s obligations hereunder
as expressly provided in
Section 4.11
, the
obligations of the Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Administrative Agent or any Lender
to assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by
the Administrative Agent or any Lender for the Obligations; (iv) any default,
failure or delay, willful or otherwise, in the performance of the Obligations;
or (v) any other act or omission that may or might in any manner or to any
extent vary the risk of the Guarantor or otherwise operate as a discharge of the
Guarantor as a matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Borrower or the unenforceability
of the Obligations, or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower, other than the payment in full in
cash of all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the
Administrative Agent or any Lender upon the bankruptcy or reorganization of the
Borrower or otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In
furtherance of the foregoing and not in limitation of any other right that the
Administrative Agent or any Lender has at law or in equity against the Guarantor
by virtue hereof, upon the failure of the Borrower to pay any Obligation when
and as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, the Guarantor hereby promises to and will
forthwith pay, or cause to be paid, to the Administrative Agent for distribution
to the Lenders in cash the amount of such unpaid Obligation. Upon
payment by the Guarantor of any sums to the Administrative Agent as provided
above, all rights of the Guarantor against the Borrower arising as a result
thereof by way of right of subrogation, contribution, indemnity or otherwise
shall in all respects be subject to Article III.
SECTION
2.06.
Information
. The
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations, and the nature, scope
and extent of the risks that the Guarantor assumes and incurs hereunder, and
agrees that none of the Administrative Agent or the other Lenders will have any
duty to advise the Guarantor of information known to it or any of them regarding
such circumstances or risks.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
In
demnity and
Subrogation
. In
addition to all such rights of indemnity and subrogation as the Guarantor may
have under applicable law (but subject to
Section 3.02
), the
Borrower agrees that in the event a payment of an obligation shall be made by
the Guarantor under this Agreement, the Borrower shall indemnify the Guarantor
for the full amount of such payment and the Guarantor shall be subrogated to the
rights of the Person to whom such payment shall have been made to the extent of
such payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under
Section
3.01
and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of
the Borrower or the Guarantor to make the payments required by
Section 3.01
(or any
other payments required under applicable law or otherwise) shall in any respect
limit the obligations and liabilities of the Guarantor with respect to its
obligations hereunder, and the Guarantor shall remain liable for the full amount
of the obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the Credit
Agreement. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Borrower as provided in the Credit
Agreement.
SECTION
4.02. Waivers; Amendment
. (a) No
failure or delay by the Administrative Agent or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 4.02
, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time. No notice or
demand on any Guaranty Party in any case shall entitle any Guaranty Party to any
other or further notice or demand in similar or other
circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Guaranty Party or Guaranty Parties with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with the Credit Agreement.
SECTION
4.03.
Successors and
Assigns
. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantor or the
Administrative Agent that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns. The
Guaranty Parties shall not have the right to assign or transfer their respective
rights or obligations hereunder or any interest herein (and any such assignment
or transfer shall be void) except as expressly contemplated by this Agreement or
the Credit Agreement.
SECTION
4.04.
Survival of
Agreement
. All
covenants, agreements, representations and warranties made by the Guaranty
Parties in the Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and shall survive the execution and delivery of the Loan Documents and the
making of any Loans, regardless of any investigation made by any Lender or on
its behalf and notwithstanding that the Administrative Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended under the Credit Agreement, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under any
Loan Document is outstanding and unpaid and so long as the Commitments have not
expired or terminated.
SECTION
4.05.
Counterparts; Effectiveness;
Several Agreement
. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature
page to
this Agreement by facsimile transmission or other electronic communication shall
be as effective as delivery of a manually signed counterpart of this
Agreement. This Agreement shall become effective as to the Guaranty
Parties when (i) a counterpart hereof executed on behalf of the Guaranty Parties
shall have been delivered to the Administrative Agent and a counterpart hereof
shall have been executed on behalf of the Administrative Agent and (ii) the
closing of the Merger shall have occurred.
SECTION
4.06.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.07.
Right of
Set-Off
. In
addition to any rights and remedies of the Lenders provided by Law, upon the
occurrence and during the continuance of any Event of Default, each Lender is
authorized at any time and from time to time, without prior notice to the
Borrower or the Guarantor, any such notice being waived by the Borrower and the
Guarantor to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other Indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Guaranty Parties
against any and all obligations owing to such Lender hereunder, now or hereafter
existing, irrespective of whether or not such Lender shall have made demand
under this Agreement and although such obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set off and application
made by such Lender. The rights of each Lender under this
Section 4.07
are in
addition to other rights and remedies (including other rights of setoff) that
the Administrative Agent and such Lender may have.
SECTION
4.08.
Governing Law; Jurisdiction;
Consent to Service of Process
.(a) This
Agreement shall be governed by and construed in accordance with the law of the
State of New York.
(b) Each
of the Guaranty Parties hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York City and of the United States District
Court for the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other
Loan Document shall affect
any right that the Administrative Agent or any Lender
may otherwise have to bring any action or
proceeding
relating to this Agreement or any other Loan Document against the Guarantor, or
its properties in the courts of any jurisdiction.
(c) Each
of the Guaranty Parties hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this
Section
4.08
. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in
Section
4.01
. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION
4.09.
WAIVER OF JURY
TRIAL
. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.09.
SECTION
4.10.
Headings
. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
4.11.
Termination or
Release
.
(a) This Agreement and the guaranty made herein shall terminate with
respect to all Obligations when all the outstanding Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend or
extend credit under the Credit Agreement.
(b) In
connection with any termination or release pursuant to paragraph (a), the
Administrative Agent shall execute and deliver to the Guarantor, at the
Guarantor’s expense, all documents that the Guarantor shall reasonably request
to evidence such termination or release.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
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GREAT
PLAINS ENERGY INCORPORATED
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By:
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/s/
Terry Bassham
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Name:
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Terry
Bassham
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Title:
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Executive
Vice President-
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Finance
and Strategic
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Development
and Chief
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Financial
Officer
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IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Borrower
has executed this Agreement as of the date first written above.
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.
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AQUILA
, INC.
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By:
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/s/ Michael Cole
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Name:
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Michael
Cole
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Title:
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Vice
President, Finance &
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Treasurer
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IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
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UNION
BANK OF CALIFORNIA, N.A., as Administrative Agent
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By:
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/s/ Susan K. Johnson
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Name:
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Susan
K. Johnson
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Title:
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Vice
President
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Exhibit
10.3
GUARANTY
THIS
GUARANTY, dated as of July 15, 2008 (the “
Guaranty
”), is made
by GREAT PLAINS ENERGY INCORPORATED, a Delaware limited liability company
(together with its successors and permitted assigns, the “
Guarantor
”), in favor
of Union Bank of California, N.A., acting in its capacity as successor trustee
under the Indenture (as defined below) and the holders of the Notes (as defined
below).
Pursuant
to the Indenture, dated as of August 24, 2001 (as amended, modified or
supplemented from time to time, the “
Indenture
”) executed
by and between Aquila, Inc. (the “
Issuer
”) and Union
Bank of California, N.A., in its capacity as successor trustee (the “
Trustee
”), the Issuer
has issued its 14.875% Senior Notes due 2012 in the aggregate principal amount
of $500,000,000 (the “
Notes
”). Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
the Guarantor, Issuer, Black Hills Corporation and Gregory Acquisition Corp.
(the “
Merger
Agreement
”), the Issuer has agreed to be acquired by the
Guarantor. The transaction will be consummated by merging Gregory
Acquisition Corp. with and into the Issuer (the “
Merger
”), with the
Issuer continuing as the surviving corporation. Upon completion of
the Merger, the Issuer will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor is willing to execute and deliver this
Agreement. The Guarantor has agreed to execute and deliver this
Guaranty in order to guarantee the payment and performance of the obligations of
the Issuer under the Notes and the Indenture.
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Indenture
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Indenture.
SECTION
1.02.
Other Defined
Terms
. As used in this Agreement, the following terms have the
meanings specified below:
“
Agreement
” means this
Guaranty.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Issuer and the Guarantor.
“
Indenture
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Obligations
” has
the meaning set forth in Section 2.1.
“
Person
” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or any agency or political subdivision thereof or other
entity.
ARTICLE
II
GUARANTY
SECTION
2.01.
Guaranty
. The
Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal and premium, if any, and
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee under the
Indenture or any other agreement with or for the benefit of the Holder or the
Trustee, all in accordance with the terms hereof and thereof (collectively, the
“
Obligations
”); and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration pursuant to the terms of the Indenture or the Notes,
redemption or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantor
shall be obligated to pay the same immediately. The Guarantor waives
presentment to, demand of payment from and protest to the Issuer of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Trustee or any other
Lender to any security held for the payment of the Obligations, or to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or any other Person.
SECTION
2.03.
No
Limitations
. (a) Except for termination of the
Guarantor’s obligations hereunder as expressly provided in
Section 4.
08
, the obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Trustee or any other Person to
assert any claim or demand or to enforce any right or remedy under the
provisions of the Indenture, the Notes or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, the Indenture, the Notes or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security from the Issuer or any other Person for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or
otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations, including
pursuant to Sections 401 and 403 of the Indenture).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Issuer or the unenforceability of
the Obligations, or any part thereof from any cause, or the cessation from any
cause of the liability of the Issuer, other than the payment in full in cash of
all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Trustee or
any Holder upon the bankruptcy or reorganization of the Issuer or
otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In furtherance of the foregoing and not in
limitation of any other right that the Trustee or any Holder has at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Issuer to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid in cash the amount of
such unpaid Obligation. Upon payment by the Guarantor of any sums as
provided above, all rights of the Guarantor against the Issuer arising as a
result thereof by way of right of subrogation, contribution, indemnity or
otherwise shall in all respects be subject to Article III.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
Indemnity and
Subrogation
.
In
addition to all such rights of indemnity and subrogation as the Guarantor may
have under applicable law (but subject to
Section 3.02
), the Issuer agrees that
in the event a payment of an obligation shall be made by the Guarantor under
this Agreement, the Issuer shall indemnify the Guarantor for the full amount of
such payment and the Guarantor shall be subrogated to the rights of the Person
to whom such payment shall have been made to the extent of such
payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under Section
3.01
and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Issuer or the
Guarantor to make the payments required by
Section 3.01
(or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor with respect to its obligations
hereunder, and the Guarantor shall remain liable for the full amount of the
obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the
Indenture. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Issuer as provided in the
Indenture.
SECTION
4.02.
Waivers;
Amendment
. (a) No failure or delay by the Trustee
or any Holder in exercising any right or power hereunder or under the Indenture
or the Notes shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Trustee and the Holders hereunder and under the Indenture or the
Notes are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 4.02
, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guaranty Party in any case
shall entitle any Guaranty Party to any other or further notice or demand
in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Indenture.
SECTION
4.03.
Successors and
Assigns
. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantor that are contained in this Agreement shall bind
and inure to the benefit of its successors and assigns.
SECTION
4.04.
Counterparts; Several
Agreement
. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic
communication shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall inure to the benefit of the
Guarantor, the Trustee and the Holders and their respective successors and
assigns.
SECTION
4.05.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other
jurisdiction. The
parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.06.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
SECTION
4.07.
Headings
. Article
and Section headings used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION
4.08.
Termination or
Release
. (a) This Agreement and the guaranty made
herein shall terminate with respect to all Obligations when all the outstanding
Obligations have been indefeasibly paid in full (including pursuant to Sections
401 and 403 of the Indenture).
(b) In
the event of a sale or other disposition of all or substantially all of the
assets of the Issuer, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of the Issuer, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary or a parent of the Guarantor, then, unless otherwise expressly agreed
to in writing by the Guarantor, the Guarantor automatically shall be
released and relieved of any obligations under this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
GREAT
PLAINS ENERGY INCORPORATED
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By:
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/s/ Michael W. Cline
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Name:
|
Michael
W. Cline
|
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Title:
|
Vice
President - Investor
|
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Relations
and Treasurer
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Issuer has
executed this Agreement as of the date first written above.
AQUILA,
INC.
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By:
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/s/ Michael W. Cline
|
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Name:
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Michael
W. Cline
|
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Title:
|
Treasurer
|
Exhibit
10.4
GUARANTY
THIS
GUARANTY, dated as of July 15, 2008 (the “
Guaranty
”), is made
by GREAT PLAINS ENERGY INCORPORATED, a Delaware limited liability company
(together with its successors and permitted assigns, the “
Guarantor
”), in favor
of Union Bank of California, N.A., acting in its capacity as successor trustee
under the Indenture (as defined below) and the holders of the Notes (as defined
below).
Pursuant
to the Indenture, dated as of June 20, 2001 (as amended, modified or
supplemented from time to time, the “
Indenture
”) executed
by and between Aquila, Inc. (the “
Issuer
”) and Union
Bank of California, N.A., in its capacity as successor trustee (the “
Trustee
”), the Issuer
has issued its 7.75% Senior Notes due 2011 in the aggregate principal amount of
$200,000,000 (the “
Notes
”). Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
the Guarantor, Issuer, Black Hills Corporation and Gregory Acquisition Corp.
(the “
Merger
Agreement
”), the Issuer has agreed to be acquired by the
Guarantor. The transaction will be consummated by merging Gregory
Acquisition Corp. with and into the Issuer (the “
Merger
”), with the
Issuer continuing as the surviving corporation. Upon completion of
the Merger, the Issuer will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor is willing to execute and deliver this
Agreement. The Guarantor has agreed to execute and deliver this
Guaranty in order to guarantee the payment and performance of the obligations of
the Issuer under the Notes and the Indenture.
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Indenture
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Indenture.
SECTION
1.02.
Other Defined
Terms
. As used in this Agreement, the following terms have the
meanings specified below:
“
Agreement
” means this
Guaranty.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Issuer and the Guarantor.
“
Indenture
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Obligations
” has
the meaning set forth in Section 2.1.
“
Person
” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or any agency or political subdivision thereof or other
entity.
ARTICLE
II
GUARANTY
SECTION
2.01.
Guaranty
. The
Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal and premium, if any, and
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee under the
Indenture or any other agreement with or for the benefit of the Holder or the
Trustee, all in accordance with the terms hereof and thereof (collectively, the
“Obligations”
); and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration pursuant to the terms of the Indenture or the Notes,
redemption or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantor
shall be obligated to pay the same immediately. The Guarantor waives
presentment to, demand of payment from and protest to the Issuer of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Trustee or any other
Lender to any security held for the payment of the Obligations, or to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or any other Person.
SECTION
2.03.
No
Limitations
. (a) Except for termination of the
Guarantor’s obligations hereunder as expressly provided in
Section 4.
08
, the obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired
or otherwise affected by (i) the failure of the Trustee or any other Person to
assert any claim or demand or to enforce any right or remedy under the
provisions of the Indenture, the Notes or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, the Indenture, the Notes or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security from the Issuer or any other Person for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or
otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations, including
pursuant to Sections 401 and 403 of the Indenture).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Issuer or the unenforceability of
the Obligations, or any part thereof from any cause, or the cessation from any
cause of the liability of the Issuer, other than the payment in full in cash of
all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Trustee or
any Holder upon the bankruptcy or reorganization of the Issuer or
otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In furtherance of the foregoing and not in
limitation of any other right that the Trustee or any Holder has at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Issuer to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid in cash the amount of
such unpaid Obligation. Upon payment by the Guarantor of any sums as
provided above, all rights of the Guarantor against the Issuer arising as a
result thereof by way of right of subrogation, contribution, indemnity or
otherwise shall in all respects be subject to Article III.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
Indemnity and
Subrogation
. In addition to all such rights of indemnity and
subrogation as the Guarantor may have under applicable law (but subject to
Section 3.02), the Issuer agrees that in the event a payment of an obligation
shall be made by the Guarantor under this Agreement, the Issuer shall indemnify
the Guarantor for the full amount of such payment and the Guarantor shall be
subrogated to the rights of the Person to whom such payment shall have been made
to the extent of such payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under
Section 3.01
and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Issuer or the
Guarantor to make the payments required by
Section 3.01
(or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor with respect to its obligations
hereunder, and the Guarantor shall remain liable for the full amount of the
obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the
Indenture. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Issuer as provided in the
Indenture.
SECTION
4.02.
Waivers;
Amendment
. (a) No failure or delay by the Trustee
or any Holder in exercising any right or power hereunder or under the Indenture
or the Notes shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Trustee and the Holders hereunder and under the Indenture or the
Notes are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 4.02
, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guaranty Party in any case
shall entitle any Guaranty Party to any other or further notice or demand in
similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Indenture.
SECTION
4.03.
Successors and
Assigns
. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantor that are contained in this Agreement shall bind
and inure to the benefit of its successors and assigns.
SECTION
4.04.
Counterparts; Several
Agreement
. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic
communication shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall inure to the benefit of the
Guarantor, the Trustee and the Holders and their respective successors and
assigns.
SECTION
4.05.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The
parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.06.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
SECTION
4.07.
Headings
. Article
and Section headings used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION
4.08.
Termination or
Release
. (a) This Agreement and the guaranty made
herein shall terminate with respect to all Obligations when all the outstanding
Obligations have been indefeasibly paid in full (including pursuant to Sections
401 and 403 of the Indenture).
(b) In
the event of a sale or other disposition of all or substantially all of the
assets of the Issuer, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of the Issuer, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary or a parent of the Guarantor, then, unless otherwise expressly agreed
to in writing by the Guarantor, the Guarantor automatically shall be
released and relieved of any obligations under this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
GREAT
PLAINS ENERGY INCORPORATED
|
|
By:
|
/s/ Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Vice
President - Investor
|
|
|
|
|
Relations
and Treasurer
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Issuer has
executed this Agreement as of the date first written above.
AQUILA,
INC.
|
|
By:
|
/s/ Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Treasurer
|
Exhibit
10.5
GUARANTY
THIS
GUARANTY, dated as of July 15, 2008 (the “
Guaranty
”), is made
by GREAT PLAINS ENERGY INCORPORATED, a Delaware limited liability company
(together with its successors and permitted assigns, the “
Guarantor
”), in favor
of Union Bank of California, N.A., acting in its capacity as successor trustee
under the Indenture (as defined below) and the holders of the Notes (as defined
below).
Pursuant
to the Indenture, dated as of November 1, 1990 (as amended, modified or
supplemented from time to time, the “
Indenture
”) executed
by and between Aquila, Inc. (the “
Issuer
”) and Union
Bank of California, N.A., in its capacity as successor trustee (the “
Trustee
”), the Issuer
has issued its 9.95% Senior Notes due 2011 in the aggregate principal amount of
$250,000,000 (the “
Notes
”). Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
the Guarantor, Issuer, Black Hills Corporation and Gregory Acquisition Corp.
(the “
Merger
Agreement
”), the Issuer has agreed to be acquired by the
Guarantor. The transaction will be consummated by merging Gregory
Acquisition Corp. with and into the Issuer (the “
Merger
”), with the
Issuer continuing as the surviving corporation. Upon completion of
the Merger, the Issuer will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor is willing to execute and deliver this
Agreement. The Guarantor has agreed to execute and deliver this
Guaranty in order to guarantee the payment and performance of the obligations of
the Issuer under the Notes and the Indenture.
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Indenture
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Indenture.
SECTION
1.02.
Other Defined
Terms
. As used in this Agreement, the following terms have the
meanings specified below:
“
Agreement
” means this
Guaranty.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Issuer and the Guarantor.
“
Indenture
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Obligations
” has the
meaning set forth in Section 2.1.
“
Person
” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or any agency or political subdivision thereof or other
entity.
ARTICLE
II
GUARANTY
SECTION 2.01.
Guaranty
. The
Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal and premium, if any, and
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee under
the Indenture or any other agreement with or for the benefit of the Holder or
the Trustee, all in accordance with the terms hereof and thereof (collectively,
the “
Obligations
”); and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
Stated Maturity, by acceleration pursuant to the terms of the Indenture or
the Notes, redemption or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantor shall be obligated to pay the same immediately. The
Guarantor waives presentment to, demand of payment from and protest to the
Issuer of any of the Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Trustee or any other
Lender to any security held for the payment of the Obligations, or to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or any other Person.
SECTION
2.03.
No
Limitations
. (a) Except for termination of the
Guarantor’s obligations hereunder as expressly provided in
Section 4.08
, the obligations of the
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired
or otherwise affected by (i) the failure of the Trustee or any other Person to
assert any claim or demand or to enforce any right or remedy under the
provisions of the Indenture, the Notes or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, the Indenture, the Notes or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security from the Issuer or any other Person for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or
otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations, including
pursuant to Sections 401 and 403 of the Indenture).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Issuer or the unenforceability of
the Obligations, or any part thereof from any cause, or the cessation from any
cause of the liability of the Issuer, other than the payment in full in cash of
all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Trustee or
any Holder upon the bankruptcy or reorganization of the Issuer or
otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In furtherance of the foregoing and not in
limitation of any other right that the Trustee or any Holder has at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Issuer to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid in cash the amount of
such unpaid Obligation. Upon payment by the Guarantor of any sums as
provided above, all rights of the Guarantor against the Issuer arising as a
result thereof by way of right of subrogation, contribution, indemnity or
otherwise shall in all respects be subject to Article III.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
Indemnity and
Subrogation
. In addition to all such rights of indemnity and
subrogation as the Guarantor may have under applicable law (but subject to
Section 3.02
), the Issuer agrees that
in the event a payment of an obligation shall be made by the Guarantor under
this Agreement, the Issuer shall indemnify the Guarantor for the full amount of
such payment and the Guarantor shall be subrogated to the rights of the Person
to whom such payment shall have been made to the extent of such
payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under Section
3.01
and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Issuer or the
Guarantor to make the payments required by
Section 3.01
(or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor with respect to its obligations
hereunder, and the Guarantor shall remain liable for the full amount of the
obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the
Indenture. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Issuer as provided in the
Indenture.
SECTION
4.02.
Waivers;
Amendment
. (a) No failure or delay by the Trustee or any
Holder in exercising any right or power hereunder or under the Indenture or the
Notes shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Trustee and the Holders hereunder and under the Indenture or the
Notes are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section 4.02
, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guaranty Party in any case
shall entitle any Guaranty Party to any other or further notice or demand in
similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Indenture.
SECTION
4.03.
Successors and
Assigns
. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantor that are contained in this Agreement shall bind
and inure to the benefit of its successors and assigns.
SECTION
4.04.
Counterparts; Several
Agreement
. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic
communication shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall inure to the benefit of the
Guarantor, the Trustee and the Holders and their respective successors and
assigns.
SECTION
4.05.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The
parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.06.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
SECTION
4.07.
Headings
. Article
and Section headings used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION
4.08.
Termination or
Release
. (a) This Agreement and the guaranty made
herein shall terminate with respect to all Obligations when all the outstanding
Obligations have been indefeasibly paid in full (including pursuant to Sections
401 and 403 of the Indenture).
(b) In
the event of a sale or other disposition of all or substantially all of the
assets of the Issuer, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of the Issuer, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary or a parent of the Guarantor, then, unless otherwise expressly agreed
to in writing by the Guarantor, the Guarantor automatically shall be
released and relieved of any obligations under this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
GREAT
PLAINS ENERGY INCORPORATED
|
|
By:
|
/s/
Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Vice
President - Investor
|
|
|
|
|
Relations
and Treasurer
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Issuer has
executed this Agreement as of the date first written above.
AQUILA,
INC.
|
|
By:
|
/s/ Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Treasurer
|
Exhibit
10.6
GUARANTY
THIS
GUARANTY, dated as of July 15, 2008 (the “
Guaranty
”), is made
by GREAT PLAINS ENERGY INCORPORATED, a Delaware limited liability company
(together with its successors and permitted assigns, the “
Guarantor
”), in favor
of Union Bank of California, N.A., acting in its capacity as successor trustee
under the Indenture (as defined below) and the holders of the Notes (as defined
below).
Pursuant
to the Indenture, dated as of November 1, 1990 (as amended, modified or
supplemented from time to time, the “
Indenture
”) executed
by and between Aquila, Inc. (the “
Issuer
”) and Union
Bank of California, N.A., in its capacity as successor trustee (the “
Trustee
”), the Issuer
has issued its 8.27% Senior Notes due 2021 in the aggregate principal amount of
$131,750,000 (the “
Notes
”). Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
the Guarantor, Issuer, Black Hills Corporation and Gregory Acquisition Corp.
(the “
Merger
Agreement
”), the Issuer has agreed to be acquired by the
Guarantor. The transaction will be consummated by merging Gregory
Acquisition Corp. with and into the Issuer (the “
Merger
”), with the
Issuer continuing as the surviving corporation. Upon completion of
the Merger, the Issuer will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor is willing to execute and deliver this
Agreement. The Guarantor has agreed to execute and deliver this
Guaranty in order to guarantee the payment and performance of the obligations of
the Issuer under the Notes and the Indenture.
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Indenture
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Indenture.
SECTION
1.02.
Other Defined
Terms
. As used in this Agreement, the following terms have the
meanings specified below:
“
Agreement
” means this
Guaranty.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Issuer and the Guarantor.
“
Indenture
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Obligations
” has
the meaning set forth in Section 2.1.
“
Person
” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or any agency or political subdivision thereof or other
entity.
ARTICLE
II
GUARANTY
SECTION
2.01.
Guaranty
. The
Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal and premium, if any, and
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee under
the Indenture or any other agreement with or for the benefit of the Holder or
the Trustee, all in accordance with the terms hereof and thereof (collectively,
the “Obligations”); and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration pursuant to
the terms of the Indenture or the Notes, redemption or
otherwise. Failing payment when due of any amount so guaranteed or
any performance so guaranteed for whatever reason, the Guarantor shall be
obligated to pay the same immediately. The Guarantor waives
presentment to, demand of payment from and protest to the Issuer of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Trustee or any other
Lender to any security held for the payment of the Obligations, or to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or any other Person.
SECTION
2.03.
No
Limitations
.
(a)
Except for
termination of the Guarantor’s obligations hereunder as expressly provided in
Section 4.08
, the obligations of
the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations, or
otherwise. Without limiting the generality of the foregoing, the
obligations of the Guarantor hereunder shall not be discharged or impaired or
otherwise affected by (i) the failure of the Trustee or any other Person to
assert any claim or demand or to enforce any right or remedy under the
provisions of the Indenture, the Notes or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, the Indenture, the Notes or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security from the Issuer or any other Person for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or
otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations, including
pursuant to Sections 401 and 403 of the Indenture).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Issuer or the unenforceability of
the Obligations, or any part thereof from any cause, or the cessation from any
cause of the liability of the Issuer, other than the payment in full in cash of
all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Trustee or
any Holder upon the bankruptcy or reorganization of the Issuer or
otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In furtherance of the foregoing and not in
limitation of any other right that the Trustee or any Holder has at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Issuer to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid in cash the amount of
such unpaid Obligation. Upon payment by the Guarantor of any sums as
provided above, all rights of the Guarantor against the Issuer arising as a
result thereof by way of right of subrogation, contribution, indemnity or
otherwise shall in all respects be subject to Article III.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
Indemnity and
Subrogation
. In addition to all such rights of indemnity and
subrogation as the Guarantor may have under applicable law (but subject to
Section 3.02
), the Issuer agrees that
in the event a payment of an obligation shall be made by the Guarantor under
this Agreement, the Issuer shall indemnify the Guarantor for the full amount of
such payment and the Guarantor shall be subrogated to the rights of the Person
to whom such payment shall have been made to the extent of such
payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under
Section 3.01
and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Issuer or
the Guarantor to make the payments required by
Section 3.01
(or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor with respect to its obligations
hereunder, and the Guarantor shall remain liable for the full amount of the
obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the
Indenture. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Issuer as provided in the
Indenture.
SECTION
4.02.
Waivers;
Amendment
. (a) No failure or delay by the Trustee
or any Holder in exercising any right or power hereunder or under the Indenture
or the Notes shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and
remedies of the Trustee and the Holders hereunder and under the Indenture or the
Notes are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section
4.02, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on
any Guaranty Party in any case shall entitle any Guaranty Party to any other or
further notice or demand in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Indenture.
SECTION
4.03.
Successors and
Assign
s
. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantor that are
contained in this Agreement shall bind and inure to the benefit of its
successors and assigns.
SECTION
4.04.
Counterparts; Several
Agreement
. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic
communication shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall inure to the benefit of the
Guarantor, the Trustee and the Holders and their respective successors and
assigns.
SECTION
4.05.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The
parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.06.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
SECTION
4.07.
Headings
. Article
and Section headings used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION
4.08.
Termination or
Release
.
(a)
This
Agreement and the guaranty made herein shall terminate with respect to all
Obligations when all the outstanding Obligations have been indefeasibly paid in
full (including pursuant to Sections 401 and 403 of the Indenture).
(b) In
the event of a sale or other disposition of all or substantially all of the
assets of the Issuer, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of the Issuer, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary or a parent of the Guarantor, then, unless otherwise expressly agreed
to in writing by the Guarantor, the Guarantor automatically shall be
released and relieved of any obligations under this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
GREAT
PLAINS ENERGY INCORPORATED
|
|
By:
|
/s/
Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Vice
President - Investor
|
|
|
|
|
Relations
and Treasurer
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Issuer has
executed this Agreement as of the date first written above.
AQUILA,
INC.
|
|
By:
|
/s/ Michael W. Cline
|
|
|
|
Name:
|
Michael
W. Cline
|
|
|
|
Title:
|
Treasurer
|
Exhibit
10.7
GUARANTY
THIS
GUARANTY, dated as of July 15, 2008 (the “
Guaranty
”), is made
by GREAT PLAINS ENERGY INCORPORATED, a Delaware limited liability company
(together with its successors and permitted assigns, the “
Guarantor
”), in favor
of Union Bank of California, N.A., acting in its capacity as successor trustee
under the Indenture (as defined below) and the holders of the Notes (as defined
below).
Pursuant
to the Indenture, dated as of November 1, 1990 (as amended, modified or
supplemented from time to time, the “
Indenture
”) executed
by and between Aquila, Inc. (the “
Issuer
”) and Union
Bank of California, N.A., in its capacity as successor trustee (the “
Trustee
”), the Issuer
has issued its 7.625% Senior Notes due 2009 in the aggregate principal amount of
$200,000,000 (the “
Notes
”). Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
the Guarantor, Issuer, Black Hills Corporation and Gregory Acquisition Corp.
(the “
Merger
Agreement
”), the Issuer has agreed to be acquired by the
Guarantor. The transaction will be consummated by merging Gregory
Acquisition Corp. with and into the Issuer (the “
Merger
”), with the
Issuer continuing as the surviving corporation. Upon completion of
the Merger, the Issuer will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor is willing to execute and deliver this
Agreement. The Guarantor has agreed to execute and deliver this
Guaranty in order to guarantee the payment and performance of the obligations of
the Issuer under the Notes and the Indenture.
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Indenture
. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Indenture.
SECTION
1.02.
Other Defined
Terms
.
As used
in this Agreement, the following terms have the meanings specified
below:
“
Agreement
” means this
Guaranty.
“
Guarantor
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Guaranty Parties
”
means, collectively, the Issuer and the Guarantor.
“
Indenture
” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“
Obligations
” has
the meaning set forth in Section 2.1.
“
Person
” shall mean
any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or any agency or political subdivision thereof or other
entity.
ARTICLE
II
GUARANTY
SECTION
2.01.
Guarant
y
. The
Guarantor hereby unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns (a) the due and punctual payment of the principal of, premium, if
any, and interest on the Notes, subject to any applicable grace period, whether
at Stated Maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on the overdue principal and premium, if any, and
to the extent permitted by law, interest, and the due and punctual performance
of all other obligations of the Issuer to the Holders or the Trustee under the
Indenture or any other agreement with or for the benefit of the Holder or the
Trustee, all in accordance with the terms hereof and thereof (collectively, the
“Obligations”); and (b) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that same shall be promptly paid
in full when due or performed in accordance with the terms of the extension or
renewal, whether at Stated Maturity, by acceleration pursuant to the terms of
the Indenture or the Notes, redemption or otherwise. Failing payment
when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, the Guarantor shall be obligated to pay the same
immediately. The Guarantor waives presentment to, demand of payment
from and protest to the Issuer of any of the Obligations, and also waives notice
of acceptance of its guarantee and notice of protest for
nonpayment.
SECTION
2.02.
Guaranty of
Payment
. The Guarantor further agrees that its guarantee
hereunder constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Trustee or any other
Lender to any security held for the payment of the Obligations, or to any
balance of any deposit account or credit on the books of the Trustee in favor of
the Issuer or any other Person.
SECTION
2.03.
No
Limitations
.
(a)
Except for
termination of the Guarantor’s obligations hereunder as expressly provided in
Section 4.08, the obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations, or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantor hereunder shall not be discharged or
impaired or otherwise affected by (i) the failure of the Trustee or any other
Person to assert any claim or demand or to enforce any right or remedy under the
provisions of the Indenture, the Notes or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms or
provisions of, the Indenture, the Notes or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security from the Issuer or any other Person for the Obligations; (iv) any
default, failure or delay, willful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or
otherwise
operate as a discharge of the Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations, including
pursuant to Sections 401 and 403 of the Indenture).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Issuer or the unenforceability of
the Obligations, or any part thereof from any cause, or the cessation from any
cause of the liability of the Issuer, other than the payment in full in cash of
all the Obligations.
SECTION
2.04.
Reinstatement
. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Trustee or
any Holder upon the bankruptcy or reorganization of the Issuer or
otherwise.
SECTION
2.05.
Agreement To Pay;
Subrogation
. In furtherance of the foregoing and not in
limitation of any other right that the Trustee or any Holder has at law or in
equity against the Guarantor by virtue hereof, upon the failure of the Issuer to
pay any Obligation when and as the same shall become due, whether at maturity,
by acceleration, after notice of prepayment or otherwise, the Guarantor hereby
promises to and will forthwith pay, or cause to be paid in cash the amount of
such unpaid Obligation. Upon payment by the Guarantor of any sums as
provided above, all rights of the Guarantor against the Issuer arising as a
result thereof by way of right of subrogation, contribution, indemnity or
otherwise shall in all respects be subject to Article III.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION
3.01.
Indemnity and
Subrogation
. In addition to all such rights of indemnity and
subrogation as the Guarantor may have under applicable law (but subject to
Section 3.02
), the Issuer agrees that
in the event a payment of an obligation shall be made by the Guarantor under
this Agreement, the Issuer shall indemnify the Guarantor for the full amount of
such payment and the Guarantor shall be subrogated to the rights of the Person
to whom such payment shall have been made to the extent of such
payment.
SECTION
3.02.
Subordination
. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under
Section 3.01
and all other
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations. No failure on the part of the Issuer or the
Guarantor to make the payments required by
Section 3.01
(or any other payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of the Guarantor with respect to its obligations
hereunder, and the Guarantor shall remain liable for the full amount of the
obligations of the Guarantor hereunder.
ARTICLE IV
MISCELLANEOUS
SECTION
4.01.
Notices
. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the
Indenture. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Issuer as provided in the
Indenture.
SECTION
4.02.
Waivers;
Amendment
.
(a)
No failure
or delay by the Trustee or any Holder in exercising any right or power hereunder
or under the Indenture or the Notes shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Trustee and the Holders
hereunder and under the Indenture or the Notes are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any
departure by the Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this
Section 4.02
, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice or demand on any Guaranty Party in any
case shall entitle any Guaranty Party to any other or further notice or demand
in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Trustee and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Indenture.
SECTION
4.03.
Successors
and
Assigns
. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and agreements
by or on behalf of the Guarantor that are contained in this Agreement shall bind
and inure to the benefit of its successors and assigns.
SECTION
4.04.
Counterparts; Several
Agreement
. This Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute a single contract. Delivery of an executed signature
page to this Agreement by facsimile transmission or other electronic
communication shall be as effective as delivery of a manually signed counterpart
of this Agreement. This Agreement shall inure to the benefit of the
Guarantor, the Trustee and the Holders and their respective successors and
assigns.
SECTION
4.05.
Severability
. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The
parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION
4.06.
Governing Law
.
This Agreement shall be governed by and construed in accordance with the
law of the State of New York.
SECTION
4.07.
Headings
. Article
and Section headings used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION
4.08.
Termination or
Release
.
(a)
This
Agreement and the guaranty made herein shall terminate with respect to all
Obligations when all the outstanding Obligations have been indefeasibly paid in
full (including pursuant to Sections 401 and 403 of the Indenture).
(b) In
the event of a sale or other disposition of all or substantially all of the
assets of the Issuer, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the capital stock of the Issuer, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary or a parent of the Guarantor, then, unless otherwise expressly agreed
to in writing by the Guarantor, the Guarantor automatically shall be
released and relieved of any obligations under this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
GREAT
PLAINS ENERGY INCORPORATED
|
By:
|
/s/ Michael W. Cline
|
|
|
Name:
|
Michael
W. Cline
|
|
|
Title:
|
Vice
President - Investor
|
|
|
|
Relations
and Treasurer
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Issuer has
executed this Agreement as of the date first written above.
AQUILA,
INC.
|
By:
|
/s/ Michael W. Cline
|
|
|
Name:
|
Michael
W. Cline
|
|
|
Title:
|
Treasurer
|
GREAT
PLAINS ENERGY COMPLETES ACQUISITION OF AQUILA
FIRST
OPERATING DAY OF NEW COMPANY IS MONDAY, JULY 14
Kansas City
,
Mo.
(July 1
4
, 2008)
—
Great Plains Energy (NYSE: GXP) today announced the completion of its
acquisition of Aquila, Inc. (NYSE: ILA). Beginning today, Aquila’s
Missouri electric utility business will operate under the brand name of Great
Plains Energy’s subsidiary, KCP&L.
“Today is
an important day for our region,” announced Michael Chesser, Chairman and Chief
Executive Officer of Great Plains Energy. “Our acquisition of Aquila
will create significant savings for both Aquila and KCP&L
customers. In today’s rising-cost environment, this transaction is
just one part of our plan to maintain affordable energy prices for the customers
and communities we serve.”
Families,
businesses and communities are all facing the impact of higher oil prices, food
prices and raw material costs. Utilities face these same cost
pressures. Savings resulting from the integration of KCP&L and
Aquila operations are expected to generate approximately $198 million of
customer savings by 2013 and $547 million by 2017. These savings will
be passed on to customers and will help reduce future rate
increases.
With the
addition of Aquila’s 300,000 Missouri electric utility customers in adjacent
service territories, the companies will provide electric service to
approximately 800,000 residential and business customers in 47 counties in
Missouri and Kansas. Customers should experience seamless service
during the integration of Aquila and KCP&L.
One
change all customers will notice is the new KCP&L logo (see logo at top of
page), which was publicly unveiled today as part of the beginning of the newly
integrated operations of the companies. The design of the logo was
created to convey movement and energy, reflecting our innovative and proactive
approach to meeting tomorrow’s energy needs.
1
In
connection with the transaction, KCP&L hired approximately 900 Aquila
employees, raising the number of employees at KCP&L to nearly
3,100.
“We are
proud to welcome Aquila’s employees and customers to the KCP&L family,”
Chesser said. “The integration of KCP&L and Aquila operations creates a
solid platform of customer, community and shareholder value and is a critical
part of our plan to provide clean, affordable and reliable energy to our region
for generations to come.”
It is
important to note new customer contact information, effective
immediately:
To
report emergencies or outages:
1-888-LIGHT-KC
(544-4852)
For
service-related needs or billing questions:
Metropolitan
Kansas City: (816) 471-KCPL (5275)
Toll-free:
1-888-471-KCPL (5275)
Complete
account- and service-related assistance, outage reporting and bill payment
information are also available online at
www.kcpl.com
. For
more information about the acquisition, please visit
www.oneregionalutility.com
.
As a
result of the acquisition, each outstanding share of Aquila’s common stock was
converted into the right to receive 0.0856 of a share of Great Plains Energy
common stock and $1.80 in cash. Immediately prior to the Aquila acquisition,
Black Hills Corporation (NYSE: BKH) acquired from Aquila its electric utility in
Colorado and natural gas utility properties in Colorado, Kansas, Nebraska and
Iowa for approximately $909 million in cash, after estimated closing
adjustments. Aquila shareholders holding physical stock certificates will
receive share exchange instructions in the next few weeks.
###
FORWARD-LOOKING
STATEMENTS
Statements
made in this release that are not based on historical facts are forward-looking,
may involve risks and uncertainties, and are intended to be as of the date when
made. Forward-looking statements include, but are not limited to, statements
regarding projected delivered volumes and margins, the outcome of regulatory
proceedings, cost estimates of
2
the
Comprehensive Energy Plan and other matters affecting future
operations. In connection with the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995, the registrants are providing
a number of important factors that could cause actual results to differ
materially from the provided forward-looking information. These
important factors include: future economic conditions in the regional, national
and international markets, including but not limited to regional and national
wholesale electricity markets; market perception of the energy industry, Great
Plains Energy and KCP&L; changes in business strategy, operations or
development plans; effects of current or proposed state and federal legislative
and regulatory actions or developments, including, but not limited to,
deregulation, re-regulation and restructuring of the electric utility industry;
decisions of regulators regarding rates KCP&L can charge for electricity;
adverse changes in applicable laws, regulations, rules, principles or practices
governing tax, accounting and environmental matters including, but not limited
to, air and water quality; financial market conditions and performance
including, but not limited to, changes in interest rates and credit spreads and
in availability and cost of capital and the effects on pension plan assets and
costs; credit ratings; inflation rates; effectiveness of risk management
policies and procedures and the ability of counterparties to satisfy their
contractual commitments; impact of terrorist acts; increased competition
including, but not limited to, retail choice in the electric utility industry
and the entry of new competitors; ability to carry out marketing and sales
plans; weather conditions including weather-related damage; cost, availability,
quality and deliverability of fuel; ability to achieve generation planning goals
and the occurrence and duration of planned and unplanned generation outages;
delays in the anticipated in-service dates and cost increases of additional
generating capacity and environmental projects; nuclear operations; ability to
enter new markets successfully and capitalize on growth opportunities in
non-regulated businesses and the effects of competition; workforce risks
including retirement compensation and benefits costs; performance of projects
undertaken by non-regulated businesses and the success of efforts to invest in
and develop new opportunities; the ability to successfully complete merger,
acquisition or divestiture plans (including the integration of Aquila and
KCP&L operations and the timing and amount of resulting synergies and
savings), and other risks and uncertainties. Other risk factors are
detailed from time to time in Great Plains Energy’s most recent quarterly report
on Form 10-Q or annual report on Form 10-K filed with the Securities and
Exchange Commission. This list of factors is not all-inclusive
because it is not possible to predict all factors.
Great
Plains Energy Contacts:
Media:
Matt Tidwell, director of corporate communications, 816-556-2069,
matt.tidwell@kcpl.com
Investors:
Ellen Fairchild, director of investor relations, 816-556-2083,
ellen.fairchild@kcpl.com
3
Exhibit
99.2
Important
Notice Concerning Limitations on Trading in Great Plains Energy Common
Stock
Great
Plains Energy has previously provided notice to you that activity in the Aquila,
Inc. (“Aquila”) common stock fund (the “Fund”) of the Aquila Retirement
Investment (401(k)) Plan (the “Plan”) would be closed temporarily to any
transactions. This closure, or "blackout period" was implemented in
connection with the anticipated effective time of the merger (the “Merger”)
involving Aquila and Gregory Acquisition Corp., pursuant to which Aquila became
a wholly-owned subsidiary of Great Plains Energy. At the effective
time of the Merger, each outstanding share of Aquila common stock was converted
into the right to receive 0.0856 shares of Great Plains Energy common stock and
$1.80 in cash. The blackout period in the Plan was necessary to ensure that all
Aquila common stock transactions in the Fund were fully completed before the
effective time of the Merger and so that, after the effective time of the
Merger, the administrator of the Plan could process the exchange of Aquila
common stock for Great Plains Energy common stock and cash. The prior
notice stated that the blackout period with respect to the Plan was expected to
begin during the week of July 6, 2008 and end during the week of July 20, 2008,
and that the corresponding trading blackout period would be in effect for the
portion of the Plan blackout period that occurred after the effective time of
the Merger, which was anticipated to be during the week of July 13,
2008.
The
Merger was consummated on July 14, 2008, and the trading blackout period
consequently began that day. On July 17, 2008, Great Plains Energy
was informed by the administrator of the Fund that the blackout period ended
that day. The processing of the exchange of Aquila common stock for
Great Plains Energy common stock and cash did not take as long as previously
anticipated. There is no other change in the information previously
provided to you.
If you
have any questions concerning transactions in Great Plains Energy’s common
stock, this notice or the trading blackout period, please contact Mark G.
English, General Counsel and Assistant Secretary, by telephone at
(816) 556-2200 or in writing at Great Plains Energy, 1201 Walnut, Kansas
City, MO 64106.
July 18,
2008.
