AMENDMENT
Exhibit
10.1.60
AMENDMENT
October
28, 2008
Ms. Xxxxx
Xxxxxxx
Union
Bank of California, N.A.
000 Xxxxx
Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Dear
Xxxxx:
Reference
is made to the Financing Agreement, dated as of April 22, 2005 (as amended,
modified or supplemented as of the date hereof, the “Financing
Agreement”), among KCP&L Greater Missouri Operations Company
(formerly Aquila, Inc.) (the “Company”),
the banks named therein, and Union Bank of California, N.A., as Agent and as
Lender. The Company submits this Letter Agreement to amend the
Financing Agreement as described below. Capitalized terms used but
not defined herein have the meanings given to them in the Financing
Agreement.
Section
1. Background.
Pursuant
to an Agreement and Plan of Merger dated as of February 6, 2007, by and among
Great Plains Energy Incorporated (“GPE”), the
Company, Black Hills Corporation (“Black
Hills”), and Xxxxxxx Acquisition Corp., the Company was acquired by GPE
on July 14, 2008. As a condition to the effectiveness of certain
amendments to the Financing Agreement in connection with the acquisition, GPE
provided a Guaranty dated as of July 14, 2008 (the “Guaranty”),
to the benefit of the Lenders, guarantying the obligations of the Company under
the Financing Agreement. The credit of GPE now supports the
obligations of the Company under the Financing Agreement. On October
17, 2008, the name of Aquila, Inc. was changed to KCP&L Greater Missouri
Operations Company.
Section
2. Request for Amendment.
The
Financing Agreement provides for periodic furnishing of Company financial
statements. As the Guaranty results in GPE’s credit supporting the
Company’s obligations, the Company believes that, so long as the Guaranty
remains in full force and effect, the furnishing of GPE’s financial statements
in lieu of the Company’s financial statements would satisfy the intent and
purpose of these particular reporting provisions. The Company hereby
requests that the Required Lenders consent to the following:
(a) amend
the introductory paragraph of Section 7.6 and Sections 7.6(a) and (b) of the
Financing Agreement to read as follows:
2
“7.6 Reporting Requirements of
the Company. Until the later of the Commitment Termination Date and the
payment and satisfaction of all Obligations hereunder, the Company will, unless
the Agent otherwise consents in writing, furnish to the Agent (and the Agent
shall promptly disseminate to the Lenders):
(a) as
soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of the Company, consolidated balance
sheets of the Company and its consolidated subsidiaries as of the end of such
quarter, and consolidated statements of income and retained earnings of the
Company and its consolidated subsidiaries, each for the period commencing at the
end of the previous fiscal year and ending with the end of such quarter,
certified by the chief financial officer, chief accounting officer or treasurer
of the Company, provided that (i) filing of the Company's quarterly report on
Form 10-Q with the Securities and Exchange Commission (“SEC”), or (ii) if the
Company is not required to make the filing referred to in clause (i) above, for
so long as that certain Guaranty dated as of July 14, 2008 between Great Plains
Energy Incorporated (“Parent”) and the Agent to the benefit of the Lenders, as
may be supplemented, amended or renewed (“Guaranty”) remains in full force and
effect, filing of Parent’s quarterly report on Form 10-Q with the SEC will
satisfy the foregoing requirement;
(b) as
soon as available and in any event within 120 days after the end of each fiscal
year of the Company, a copy of the consolidated balance sheets of the Company
and its consolidated subsidiaries as of the end of such year and the related
consolidated statements of income and retained earnings of the Company and its
consolidated subsidiaries for such year, each reported on by nationally
recognized independent public accountants, provided, that (i) filing of the
Company's annual report on Form 10-K with the SEC, or (ii) if the Company is not
required to make the filing referred to in clause (i) above, for so long as the
Guaranty remains in full force and effect, filing of Parent’s annual report on
Form 10-Q with the SEC will satisfy the foregoing requirement;”
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(b)
|
renumber
existing Sections 7.6(c) through (m) as Sections 7.6(e) through (o),
respectively; and
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(c)
|
insert
new Sections 7.6(c) and (d) into the Financing Agreement to read as
follows:
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“(c) within
120 days after the close of each of the Company’s fiscal years, a FERC Form No.
1 for the Company, which FERC Form No. 1 will include the required corporate
officer certification thereof, unaudited balance sheets as of the end of such
period and related statements of income, retained earnings, accumulated income
and statements of cash flows for such period;
(d) within
75 days after the close of the first three quarterly periods of each of the
Company’s fiscal years, a FERC Form No. 3-Q for the Company, which
will
3
include
the required corporate officer certification thereof, unaudited balance sheets
as at the close of each such period and related statements of income, retained
earnings and accumulated comprehensive income and a statement of cash flows for
the period from the beginning of such fiscal year to the end of such
quarter;”
Section
3. Representations and Warranties; Conditions
Precedent.
The
Company hereby represents and warrants to you that, as of the effective date of
this Letter Agreement, each of the representations and warranties made by the
Company in or pursuant to Section 7 of the Financing Agreement will be true and
correct in all material respects as if made on and as of the Effective Date, and
no Event of Default will have occurred and be continuing. For
purposes of this Letter Agreement, references in Section 7 of the Financing
Agreement to “this Agreement’, “hereunder”, “hereof” and words of like import
referring to the Financing Agreement will be deemed to be a reference to this
Letter Agreement and the Financing Agreement, as modified hereby, and references
to “date hereof” will be deemed to be a reference to the date of this Letter
Agreement.
Section
4. Execution and Delivery.
If you
consent to the amendment described above, please evidence such consent by
executing and returning at least four counterparts of this Letter Agreement to
Union Bank of California, N.A., 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, XX, Attention: Xxxxx X. Xxxxxxx (fax no. 000.000.0000) no later
than 10 a.m. (Pacific time) on Monday, November 10, 2008.
Section
5. Miscellaneous.
The
execution, delivery and effectiveness of this Letter Agreement will not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of any Lender under the Financing Agreement, nor constitute a waiver of any
other provision of the Financing Agreement. This Letter Agreement is
subject to the provisions of Section 12.2 of the Financing
Agreement. This Letter Agreement will be binding on the parties
hereto and their respective successors and permitted assigns under the Financing
Agreement.
This
Letter Agreement may be executed in any number of counterparts and by any
combination of the parties hereto in separate counterparts, each of which
counterparts shall constitute an original and all of which taken together shall
constitute one and the same instrument. This Letter Agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York.
[signature
pages follow]
4
Very truly
yours,
KCP&L GREATER
MISSOURI OPERATIONS
COMPANY, formerly
Aquila, Inc.
By: /s/
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Treasurer
S-1
The
undersigned parties to the Financing Agreement
hereby
consent to the requests described above:
UNION
BANK OF CALIFORNIA, N.A.
as Agent
and Lender
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Vice
Xxxxxxxxx
XX0 -
476971.02
S-2
ALLIED
IRISH BANKS, P.L.C.
as
Lender
By: /s/
Xxxxxx X. Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Senior
Vice President
/s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title: Vice
President
X-0
XXXXXXXXXXX
XX, XXX XXXX AND
GRAND
CAYMAN BRANCHES
as
Lender
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Vice
President
By: /s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Assistant
Vice Xxxxxxxxx
XX0 -
476971.02
S-4
LASALLE
BUSINESS CREDIT, LLC
as
Lender
By:
__________________________________
Name:
Title:
S-5
UBS LOAN
FINANCE LLC
as
Lender
By:
_________________________________
Name:
Title:
By:
_________________________________
Name:
Title:
