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
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