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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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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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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 .&nb
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