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
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