AMENDED & RESTATED REVOLVING CREDIT AGREEMENT
This Amended & Restated Revolving Credit Agreement (this AGREEMENT)
is entered into the 1st day of October, 2001, but effective as of August 13,
2001, between Aquila, Inc., a Delaware corporation (the BORROWER), and
UtiliCorp United Inc., a Delaware corporation (the LENDER).
WITNESSESS:
WHEREAS, the Borrower is a direct, 80%-owned subsidiary of the
Lender;
WHEREAS, the Borrower and the Lender entered into that certain
Revolving Credit Agreement dated August 28, 2001 (the ORIGINAL REVOLVER);
WHEREAS, the parties wish for this Agreement to replace the Original
Revolver and for all Advances (as defined below) outstanding as of the date
hereof to be governed by the terms of this Agreement; and
WHEREAS, the parties agree and acknowledge that the terms and
conditions in this Agreement are commercially reasonable, having been
negotiated at "arm's length";
NOW, THEREFORE, for and in consideration of the promises and the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
SECTION 1.01. DEFINED TERMS.
Unless otherwise defined herein, capitalized terms used herein have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
ADVANCE means an advance by the Lender to the Borrower under
this Agreement, as such Advance bears interest pursuant to Section
2.06.
AFFILIATE means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
APPLICABLE MARGIN means, at all times during which any
Applicable Rating Level set forth below is in effect, the interest rate
PER ANNUM set forth below:
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Applicable Applicable Margin
Rating Level
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1 40 bps
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2 50 bps
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3 85 bps
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4 92.5 bps
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5 115 bps
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6 160 bps
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PROVIDED, that the Applicable Margins shall be increased (for
each Applicable Rating Level) by (a) if on any day the principal amount
of the Advances then outstanding equals or exceeds $100,000,000 in the
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aggregate, an additional 12.5 basis points PER ANNUM, (b) if on any day
the principal amount of the Advances then outstanding equals or exceeds
$150,000,000 in the aggregate, an additional 50 basis points PER ANNUM,
(c) if on any day the principal amount of the Advances then outstanding
equals or exceeds $200,000,000 in the aggregate, an additional 50 basis
points PER ANNUM, and (d) an additional 200 basis points PER ANNUM upon
the occurrence and during the continuance of any Event of Default.
Any change in the Applicable Margins will be effective as of
the interest period immediately following the interest period during
which S&P or Moody's announces any change in the S&P Rating or the
Xxxxx'x Rating, as the case may be, that results in a change in the
Applicable Rating Level. The Borrower agrees to notify the Lender
promptly upon any change in the S&P Rating or the Xxxxx'x Rating.
APPLICABLE RATING LEVEL at any time shall be determined in
accordance with the then-applicable S&P Rating and the then-applicable
Xxxxx'x Rating as follows:
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S&P Rating/Xxxxx'x Rating Applicable Rating Level
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S&P Rating A-/Xxxxx'x Rating A3 1
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S&P Rating BBB+/Xxxxx'x Rating Baa1 2
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S&P Rating BBB/Xxxxx'x Rating Baa2 3
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S&P Rating BBB-/Xxxxx'x Rating Baa3 4
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S&P Rating BB+/Xxxxx'x Rating Ba1 5
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S&P Rating below BB+/Xxxxx'x Rating below Ba1, or no 6
S&P Rating or Xxxxx'x Rating
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For purposes of the foregoing, if the S&P Rating and the Xxxxx'x Rating
are not comparable (I.E., a "split rating"), the higher of such two
ratings shall control, unless either rating is below BBB- (in the case
of the S&P Rating) or Baa3 (in the case of the Xxxxx'x Rating), in
which case the lower of the two ratings shall apply.
BASE RATE means, for any date in question, the interest rate
PER ANNUM appearing on the display shown as LIBOR 1M on the Bloomberg
Screen Page BTMM at approximately 11 a.m. and, if such rate is not
published on such page at such time, then the one-month LIBOR rate
quoted by a reputable lending institution in the Kansas City bank
market (as determined in the sole discretion of the Lender).
BASIS POINT or BPS means one one-hundredth (1/100) of one
percent.
BUSINESS DAY means a day of the year on which banks are not
required or authorized to close in Kansas City,
Missouri.
COMMITMENT means $250,000,000, as such amount may be reduced
pursuant to Section 2.4.
DEBT means (without duplication) all liabilities, obligations
and indebtedness (whether contingent or otherwise) of the Borrower and
its consolidated subsidiaries (i) for borrowed money or evidenced by
bonds, indentures, notes, or other similar instruments, (ii) to pay the
deferred purchase price of property or services, (iii) as lessee under
leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, (iv) as
lessee under operating leases for electrical generating units,
aircraft, fleet vehicles or real property or any other operating lease
having aggregate lease payment obligations of more than $5,000,000, (v)
under reimbursement agreements or similar agreements with respect to
the issuance of letters of credit (other than obligations in respect of
letters of credit opened to provide for the payment of goods or
services purchased in the ordinary course of business), (vi) to pay
rent or other amounts under leveraged leases entered into in connection
with sale and
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leaseback transactions, (vii) under direct or indirect guaranties in
respect of, and to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, liabilities, obligations
or indebtedness of others of the kinds referred to in clauses (i)
through (vi) above, and (viii) liabilities in respect of unfunded
vested benefits under plans covered by Title IV of the Employee
Retirement Income Security Act of 1974, as amended from time to time;
PROVIDED, that in determining aggregate lease payment obligations for
purposes of clause (iv) above and in determining the aggregate amount
of Debt outstanding at any time for purposes of Section 5.01(b)
(including, without limitation, the aggregate amount of Debt included
in the calculation of "Total Capitalization"), such lease payment
obligations and the liabilities, obligations and indebtedness
described in clauses (iv) and (vi) above shall be calculated in
accordance with Financial Accounting Standards Board Statement No. 13,
as amended and interpreted from time to time, as though such lease
payment obligations and such liabilities, obligations and indebtedness
were recorded as arising under capital leases.
DEMAND OPTION has the meaning specified in Section 7.01.
EVENTS OF DEFAULT has the meaning specified in Section 6.01.
EXCHANGE ACT means the Securities Exchange Act of 1934, and
the regulations promulgated thereunder, in each case as amended and in
effect from time to time.
INDEMNIFIED PERSON has the meaning specified in Section
9.04(b).
INTEREST PERIOD means the period commencing on the date of an
Advance and ending on the maturity date of such Advance (as set forth
in the applicable Note), PROVIDED that (a) no Interest Period shall end
after the Termination Date and (b) whenever the last day of any
Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day.
MATERIAL ADVERSE CHANGE means any material adverse change (i)
in the business or condition (financial or otherwise) of the Borrower
and its subsidiaries, taken as a whole, or (ii) that is reasonably
likely to affect the legality, validity or enforceability of this
Agreement against the Borrower or the ability of the Borrower to
perform its obligations under this Agreement.
MATERIAL ADVERSE EFFECT means a material adverse effect (i) on
the business or condition (financial or otherwise) of the Borrower and
its subsidiaries, taken as a whole, or (ii) that is reasonably likely
to affect the legality, validity or enforceability of this Agreement
against the Borrower or the ability of the Borrower to perform its
obligations under this Agreement.
MOODY'S means Xxxxx'x Investors Service, Inc. or any successor
thereto.
XXXXX'X RATING means, on any date of determination, the rating
of the Borrower's long-term senior unsecured indebtedness most recently
announced by Moody's.
NOTE has the meaning specified in Section 2.02(b).
PERSON means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
S&P means Standard & Poor's Ratings Group or any successor
thereto.
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S&P RATING means, on any date of determination, the rating of
the Borrower's long-term senior unsecured indebtedness most recently
announced by S&P.
SIGNIFICANT SUBSIDIARY means any direct or indirect subsidiary
of the Borrower having, on any date of determination or on any date
during the 12-month period prior to such date of determination, total
assets in excess of $100,000,000 (with such determination to be made in
accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements
referred to in Section 4.01(e) hereof) or in excess of 10% of Total
Capitalization.
SUBSIDIARY means, with respect to any Person, any corporation
or unincorporated entity of which more than 50% of the outstanding
capital stock (or comparable interest) having ordinary voting power
(irrespective of whether at the time capital stock (or comparable
interest) of any other class or classes of such corporation or entity
shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by said Person
(whether directly or through one or more other subsidiaries). In the
case of an unincorporated entity, a Person shall be deemed to have more
than 50% of interests having ordinary voting power only if such
Person's vote in respect of such interests comprises more than 50% of
the total voting power of all such interests in the unincorporated
entity.
TERMINATION DATE means the 364th day following the effective
date of this Agreement or if the Commitment is extended pursuant to
Section 2.9, such later date that may be established pursuant to
Section 2.9, or, in either case, the earlier date of termination in
whole of the Commitment pursuant to Section 2.04, Section 6.01 or
Section 7.01 hereof.
TOTAL CAPITALIZATION means the sum of (i) Debt of the Borrower
and its consolidated subsidiaries, PLUS (ii) the sum of the capital
stock (excluding treasury stock and capital stock subscribed for and
unissued) and surplus (including earned surplus, capital surplus,
translation adjustment and the balance of the current profit and loss
account not transferred to surplus) accounts of the Borrower and its
subsidiaries appearing on a consolidated balance sheet of the Borrower
and its subsidiaries, in each case prepared as of the date of
determination in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e), after eliminating
all intercompany transactions and all amounts properly attributable to
minority interests, if any, in the stock and surplus of subsidiaries.
VOTING STOCK means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. COMPUTATION OF TIME PERIODS.
In this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding". All
times referred to herein reference Central Standard Time.
SECTION 1.03. ACCOUNTING TERMS.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e) hereof.
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ARTICLE II
SECTION 2.01. THE ADVANCES.
Subject to the terms and conditions set forth herein, the Lender
agrees to make Advances to the Borrower from time to time on any Business Day
during the period from the date hereof until the 30th day immediately
preceding the Termination Date in an aggregate amount not to exceed at any
time the Commitment. Each Advance shall be in an amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. Within
the limits of the Commitment, the Borrower may from time to time borrow,
repay pursuant to Section 2.05 and reborrow under this Section 2.01.
SECTION 2.02. MAKING ADVANCES.
(a) Each Advance shall be made on notice, given not later than 10
a.m. on the day of the proposed borrowing, by the Borrower to the Lender.
Each notice of a borrowing shall specify the requested date and aggregate
amount of such Advance. Subject to the fulfillment of all applicable
conditions set forth in Article III, the Lender shall, by noon on the date of
such Advance, make available said funds to the Borrower.
(b) Any Advances made by the Lender shall be evidenced by one or
more promissory notes payable to the order of the Lender (or, if requested by
the Lender, its assignees) in substantially the form of Exhibit A hereto
(each, a NOTE).
SECTION 2.03. FEES.
The Borrower agrees to pay to the Lender an arrangement fee, an
upfront fee, a commitment fee, and an administrative fee as set forth in the
fee letter dated the date hereof between the Borrower and the Lender.
SECTION 2.04. REDUCTION OF THE COMMITMENT.
(a) The Borrower shall have the right, upon at least three Business
Days' notice to the Lender, to terminate in whole or reduce in part the
unused portions of the Commitment, PROVIDED that the aggregate amount of the
Commitment shall not be reduced to an amount that is less than the aggregate
principal amount of the Advances then outstanding and PROVIDED, FURTHER, that
each partial reduction of the Commitment shall be in the aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) The Commitment shall automatically be terminated on the
Termination Date.
(c) Once terminated or reduced, the Commitment may not be
reinstated.
SECTION 2.05. REPAYMENT OF ADVANCES.
The Borrower shall repay to the Lender the principal amount of each
Advance on the maturity date of such Advance (as set forth in the relevant
Note). Notwithstanding anything to the contrary herein, each Advance shall be
due and payable no sooner than the 7th day following the date of the Advance
and no later than the 30th day following the date of the Advance.
SECTION 2.06. INTEREST ON ADVANCES.
The Borrower shall pay interest on the unpaid principal amount of each
Advance made by the Lender from the date of such Advance until such principal
amount shall be paid in full, at a rate PER ANNUM equal at all times to the
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sum of the Base Rate in effect from time to time PLUS the Applicable Margin
for such Base Rate in effect from time to time, payable on the last day of
the applicable Interest Period.
SECTION 2.07. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder without condition
or deduction for any counterclaim, defense, recoupment or setoff, not later
than 2 p.m. on the day when due in U.S. dollars to the Lender in same day
funds.
(b) The Borrower hereby authorizes the Lender, if and to the extent
payment owed to the Lender is not made when due hereunder, to charge from
time to time against any or all of the Borrower's accounts with the Lender
any amount so due.
(c) All computations of interest hereunder shall be made on the
basis of a 365-day or 366-day calendar year, as the case may be, and all
computations of the fees referred to in Section 2.03 shall be made by the
Lender on the basis of a 360-day calendar year. Each determination by the
Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.08. TAXES.
(a) Any and all payments by the Borrower hereunder shall be made, in
accordance with Section 2.07, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, EXCLUDING, in the
case of the Lender, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which the Lender is organized or
any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as TAXES). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to the Lender, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 2.08) the Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies, if any, which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as OTHER TAXES).
(c) The Borrower will indemnify the Lender for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.09) paid
by the Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be made
within 30 days from the date the Lender makes written demand therefor.
(d) If the Borrower makes any additional payment to any Lender
pursuant to this Section 2.08 in respect of any Taxes or Other Taxes, and the
Lender determines that it has received (i) a refund of such Taxes or Other
Taxes or (ii) a credit against or relief or remission for, or a reduction in
the amount of, any tax or other governmental charge solely as a result of any
deduction or credit for any Taxes or Other Taxes with respect to which it has
received payments under this Section 2.08, the Lender shall, to the extent
that it can do so without prejudice to the retention of such refund, credit,
relief, remission or reduction, pay to the Borrower such amount as the Lender
shall have determined to be attributable to the deduction or withholding of
such Taxes of Other Taxes. If the Lender later determines that it was not
entitled to such refund, credit, relief, remission or reduction to the full
extent of any
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payment made pursuant to the first sentence of this Section 2.08(d), the
Borrower shall upon demand of the Lender promptly repay the amount of such
overpayment. Any determination made by the Lender pursuant to this Section
2.08(d) shall in the absence of bad faith or manifest error be conclusive,
and nothing in this Section 2.08(d) shall be construed as requiring the
Lender to conduct its business or to arrange or alter in any respect its tax
or financial affairs so that it is entitled to receive such a refund, credit
or reduction or as allowing any Person to inspect any records, including tax
returns, of the Lender.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.08 shall survive the payment in full of principal and
interest hereunder.
SECTION 2.09. EXTENSION OF TERMINATION DATE.
(a) So long as no Event of Default has occurred and is continuing,
the Borrower may, at least 60 days but not more than 90 days before the
Termination Date then in effect, request, by delivering a written request to
the Lender (such request being irrevocable), that the Lender extend for 364
days such Termination Date with respect to the Commitment.
(b) Upon receipt of such request from the Borrower, the Lender may
(but is not obligated to), in its sole and absolute discretion, agree to
extend the Termination Date with respect to the Commitment and any of its
outstanding Advances for a 364-day period, and shall (should it determine to
do so), no earlier than 30 days (but in any event no later than 15 days prior
to such then-scheduled Termination Date) following its receipt of such
request, notify the Borrower of its consent to the extension request.
(c) If the Lender agrees to the Borrower's extension request, the
Commitment shall be extended for a period of 364 days, commencing on the
then-scheduled Termination Date; PROVIDED, HOWEVER, that any such extension
is subject to the condition precedent that, on or prior to the date of such
extension, the Lender shall have received the following, each dated such date
in form and substance satisfactory to the Lender: (i) a certificate of a duly
authorized officer of the Borrower to the effect that as of the date of
extension (A) no event has occurred and is continuing, or would result from
such extension of the Termination Date, that constitutes an Event of Default
or would, with the giving of notice or the lapse of time, or both, constitute
an Event of Default and (B) the representations and warranties contained in
Section 4.01 are correct in all material respects on and as of the date of
the extension of the Termination Date, before and after giving effect to the
extension; and (ii) such other information as the Lender may reasonably
request.
ARTICLE III
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ADVANCE.
The obligation of the Lender to make its initial Advance is subject
to the satisfaction, prior to or concurrently with the making of the initial
Advance, of each of the following conditions precedent:
(a) DOCUMENTS AND OTHER AGREEMENTS. The Lender shall have received
on or before the day of the initial Advance the following, in form and
substance satisfactory to the Lender:
(i) A Note or Notes payable to the order of the Lender
requesting same;
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement, and of all
documents evidencing other necessary corporate action with respect to
this Agreement; and
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(iii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying (A) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the
other documents to be delivered hereunder; (B) that attached thereto
are true and correct copies of the Certificate of Incorporation and the
By-laws of the Borrower, in each case in effect on such date; and (C)
that attached thereto are true and correct copies of all governmental
and regulatory authorizations and approvals, if any, required for the
due execution, delivery and performance of this Agreement.
(b) PAYMENT OF FEES. The Borrower shall have paid all fees payable
under or referenced in Section 2.03 and any arrangement fees payable to the
Lender, to the extent then due and payable.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH ADVANCE.
The obligation of the Lender to make advance funds on the occasion of
each Advance (including the initial Advance) shall be subject to the further
conditions precedent that on the date of such Advance:
(i) the following statements shall be true (and each of notice of
borrowing and the acceptance by the Borrower of the proceeds of such Advance
shall constitute a representation and warranty by the Borrower that on the date
of such Advance such statements are true):
(A) The representations and warranties contained in
Section 4.01 are correct in all material respects on and as of
the date of such Advance, before and after giving effect to
such borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) No event has occurred and is continuing, or would
result from such borrowing or from the application of the
proceeds therefrom, that constitutes an Event of Default or
that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both; and
(ii) the Lender shall have received such other approvals, opinions or
documents as it may reasonably request.
ARTICLE IV
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
The Borrower represents and warrants as follows:
(a) Each of the Borrower and each of its subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to do business as a
foreign corporation in each jurisdiction in which the nature of the business
conducted or the property owned, operated or leased by it requires such
qualification, except where failure to so qualify would not have a Material
Adverse Effect.
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(b) The execution, delivery and performance by the Borrower of this
Agreement are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene (i) the Borrower's
charter or by-laws, (ii) law or (iii) any contractual or legal restriction
binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Agreement.
(d) This Agreement is the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms.
(e) The unaudited balance sheet of the Borrower and its subsidiaries as
at June 30, 2001 and the related unaudited statements of income, retained
earnings and cash flows for the six-month period then ended, copies of which
have been furnished to the Lender, fairly present (subject, in the case of such
balance sheet and statements of income for the six-month period ended June 30,
2001, to year-end adjustments) the financial condition of the Borrower and its
subsidiaries as at such dates and the results of the operations of the Borrower
and its subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles consistently applied, and since June
30, 2001, there has been no Material Adverse Change.
(f) No written statement, information, report, financial statement,
exhibit or schedule furnished by or on behalf of the Borrower to the Agent or
any Lender in connection with the negotiation of this Agreement or included
herein or delivered pursuant hereto contained, contains, or will contain any
material misstatement of fact or intentionally omitted, omits, or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are, or will be made, not
misleading.
(g) The Borrower and each Significant Subsidiary is in material
compliance with all laws, rules, regulations and orders of any governmental
authority applicable to it.
(h) There is no pending or threatened action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its Significant
Subsidiaries before any court, governmental agency or arbitrator that could
reasonably be expected to have a Material Adverse Effect.
(i) No proceeds of any Advance have been or will be used directly or
indirectly in connection with (i) the acquisition of in excess of 5% of any
class of equity securities that is registered pursuant to Section 12 of the
Exchange Act, (ii) any transaction subject to the requirements of Section 13 of
the Exchange Act or (iii) any transaction subject to the requirements of Section
14 of the Exchange Act.
ARTICLE V
SECTION 5.01. AFFIRMATIVE COVENANTS.
So long as any amount payable by the Borrower hereunder shall remain
unpaid or the Commitment remains outstanding, the Borrower will, and, in the
case of Sections 5.01(a) and 5.01(c), will cause its subsidiaries to, unless the
Lender otherwise consents in writing:
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(a) KEEP BOOKS; CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES;
COMPLIANCE WITH LAWS; INSURANCE; TAXES; INSPECTION RIGHTS.
(i) keep proper books of record and account, all in accordance
with generally accepted accounting principles;
(ii) preserve and keep in full force and effect its existence
and preserve and keep in full force and effect its licenses, rights
(charter and statutory) and franchises to the extent necessary to carry
on its business;
(iii) maintain and keep, or cause to be maintained and kept,
its properties in good repair, working order and condition, and from
time to time make or cause to be made all needful and proper repairs,
renewals, replacements and improvements, in each case to the extent
such properties are not obsolete and are necessary to carry on its
business;
(iv) comply in all material respects with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or its property,
except to the extent being contested in good faith by appropriate
proceedings;
(v) maintain insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which it
operates; and
(vi) at any reasonable time and from time to time, permit the
Lender or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and its subsidiaries and to
discuss the affairs, finances and accounts of the Borrower and its
subsidiaries with any of its officers or directors and with their
independent certified public accountants.
(b) DEBT TO TOTAL CAPITALIZATION RATIO. Maintain at all times a ratio
of Debt to Total Capitalization of not more than .65 to 1.0.
(c) USE OF PROCEEDS. Use the proceeds of any Borrowings hereunder (i)
exclusively for general corporate purposes (including to refinance short-term
Debt of the Borrower) and (ii) in strict compliance with all applicable laws and
governmental and regulatory approvals.
(d) REPORTING REQUIREMENTS. Furnish to the Lender:
(i) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, (A) consolidated balance sheet of the Borrower and its
subsidiaries as of the end of such quarter and (B) consolidated
statements of income, retained earnings and cash flows of the Borrower
and its subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, each
certified by the chief financial officer of the Borrower;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the annual
report for such year for the Borrower and its subsidiaries, containing
unqualified consolidated financial statements for such year, certified
by Xxxxxx Xxxxxxxx or another nationally recognized firm of independent
public accountants;
11
(iii) as soon as possible and in any event within five days
after the occurrence of each Event of Default and each event that, with
the giving of notice or lapse of time or both, would constitute an
Event of Default, continuing on the date of such statement, a statement
of the chief financial officer of the Borrower setting forth details of
such Event of Default or event and the actions that the Borrower has
taken and proposes to take with respect thereto;
(iv) as soon as possible and in any event within five days
after the commencement of litigation against the Borrower or any of its
subsidiaries, or the receipt of a notice of default by the Borrower or
any of its subsidiaries, that could reasonably be expected to have a
Material Adverse Effect on the Borrower or any of its subsidiaries,
notice of such litigation or notice of default describing in reasonable
detail the facts and circumstances concerning such litigation or
default and the Borrower's or such subsidiary's proposed actions in
connection therewith;
(v) promptly after the sending or filing thereof, copies of
all reports that the Borrower sends to any of its securities holders,
and copies of all reports and registration statements which the
Borrower or any subsidiary files with the Securities and Exchange
Commission or any national securities exchange; and
(vi) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
subsidiaries as the Lender may from time to time reasonably request.
SECTION 5.02. NEGATIVE COVENANTS.
So long as any amount payable by the Borrower hereunder shall remain
unpaid or the Commitment remains outstanding, the Borrower will not, without the
written consent of the Lender:
(a) MERGERS AND CONSOLIDATIONS. Merge or consolidate with or into
any Person, or permit any of its subsidiaries to do so, except (i) any
subsidiary of the Borrower may merge or consolidate with or into any other
subsidiary of the Borrower and (ii) any subsidiary of the Borrower may merge
with the Borrower and (iii) the Borrower or any subsidiary of the Borrower
may merge with any other Person, PROVIDED in each case that, immediately
after giving effect to such proposed transaction, (A) no Event of Default or
event that, with the giving of notice or lapse of time, or both, would
constitute an Event of Default would exist, (B) in the case of any such
transaction to which the Borrower is a party, the Borrower is the surviving
corporation, (C) the ratings assigned by S&P or Xxxxx'x to the Borrower's
senior unsecured indebtedness shall not be lower than the ratings assigned by
S&P or Xxxxx'x to the Borrower's senior unsecured indebtedness immediately
prior to giving effect to such proposed transaction, (D) in the case of any
such transaction to which any subsidiary of the Borrower is a party, the
surviving corporation is a subsidiary of the Borrower, and (E) no Person
(other than the Borrower) and its Affiliates, collectively, shall have the
ability to elect a majority of the board of directors of the Borrower or any
such subsidiary or surviving corporation.
(b) DISPOSITION OF ASSETS. In any 12-month period, (i) sell, lease,
transfer, convey or otherwise dispose of (whether in one transaction or in a
series of transactions) in excess of 7.5% of the total assets (whether now
owned or hereafter acquired, EXCLUDING, HOWEVER, accounts receivable) of the
Borrower and its subsidiaries (with such determination to be made in
accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(e)), or permit any subsidiary to do so, or (ii) sell or
otherwise dispose of (whether in one transaction or in a series of
transactions) in excess of 51% of the shares of capital stock of any
Significant Subsidiary, or permit any Significant Subsidiary to issue, sell
or otherwise dispose of in excess of 51% of its shares of capital stock or
the capital stock of any other Significant Subsidiary, except to the Borrower
or another subsidiary, unless in either case described in clauses (i) and
(ii) above, the consideration (as hereinafter defined) received for such
assets or capital stock, as the case may be, is at least equal to the higher
of the book value and the fair value (as determined in good faith by the
board of directors of the Borrower) thereof. As used in this Section 5.02(b),
the term "consideration" shall mean cash consideration or the fair value of
non-cash consideration (as determined in good faith by the board of directors
of the Borrower).
12
(c) NATURE OF BUSINESS. Fail to continue it's primary business as
conducted on the date hereof without material reduction or change in nature.
ARTICLE VI
SECTION 6.01. EVENTS OF DEFAULT.
If any of the following events (each, an EVENT OF DEFAULT) shall occur
and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable, or interest thereon or any other amount
payable under this Agreement within three Business Days after the same becomes
due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement shall
prove to have been incorrect or misleading in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.01(b) or (c) or Section 5.02 or
(ii) any other term, covenant or agreement contained in this Agreement on its
part to be performed or observed if the failure to perform or observe such other
term, covenant or agreement shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrower by the Lender; or
(d) The Borrower or any Significant Subsidiary shall fail to pay any
principal of or premium or interest on any Debt which is outstanding in a
principal amount in excess of $10,000,000 in the aggregate (but excluding Debt
evidenced by this Agreement) of the Borrower or such Significant Subsidiary (as
the case may be) when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or
(e) The Borrower or any Significant Subsidiary shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower or
any Significant Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or the Borrower or any
Significant Subsidiary shall take any corporate action to authorize or to
consent to any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or any of its Significant
Subsidiaries and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days
13
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(g) (i) Any entity, person (within the meaning of Section 14(d) of
the Exchange Act) or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) that theretofore was beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of less than 50% of the
Borrower's Voting Stock shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the SEC under the Exchange Act), directly or
indirectly, of Voting Stock of the Borrower (or other securities convertible
into such Voting Stock) representing 50% or more of the combined voting power
of all Voting Stock of the Borrower; or (ii) during any period of up to 24
consecutive months, commencing after the date hereof, individuals who at the
beginning of such 24-month period were directors of the Borrower shall cease
for any reason to constitute a majority of the board of directors of the
Borrower, PROVIDED that any person becoming a director subsequent to the date
hereof, whose election, or nomination for election by the Borrower's
shareholders, was approved by a vote of at least a majority of the directors
of the board of directors of the Borrower as comprised as of the date hereof
(other than the election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Borrower) shall be,
for purposes of this provision, considered as though such person were a
member of the board as of the date hereof;
then, and in any such event, the Lender may by notice to the Borrower (i)
declare the obligation of the Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) declare the Advances,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; PROVIDED, HOWEVER, that in the event
of an actual or deemed entry of an order for relief with respect to the
Borrower or any of its subsidiaries under the Federal Bankruptcy Code, (A)
the obligation of the Lender to make Advances shall automatically be
terminated and (B) the Advances, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived
by the Borrower.
ARTICLE VII
SECTION 7.01. DEMAND OPTION.
Notwithstanding any other provision contrary herein, at any and all
times, the Lender may upon notice to the Borrower demand the repayment of all
or any Advances then outstanding (the DEMAND OPTION) upon the occurrence of
any of the following events: (a) the sale, conveyance, transfer, assignment,
lease or other disposition, or securitization or monetization of all or
substantially all of the Lender's assets; (b) the occurrence of any default
by the Lender on any of its outstanding debt obligations; (c) the occurrence
of a spin-off by the Lender to its shareholders of the Lender's outstanding
voting shares of Aquila, Inc; or (d) the Borrower obtains a committed credit
facility in an aggregate principal amount equal to or exceeding the aggregate
principal amount of the Commitment at such time. All obligations, amounts,
indebtedness, and interest owing to the Lender by the Borrower shall be
immediately due and payable by the Borrower upon the exercise of the Demand
Option by the Lender, and thereafter the Commitment shall be terminated.
ARTICLE VIII
SECTION 8.01. SUBORDINATION.
All payments by the Borrower under this Agreement are subordinate
and junior in right of payment to the prior payment in full of all senior
debt of the Borrower, whether outstanding at the date hereof or thereafter
occurred.
14
ARTICLE IX
SECTION 9.01. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 9.02. NOTICES, ETC.
All notices and other communications provided for hereunder shall be
in writing (including telecopier, telegraphic, telex or cable communication)
and mailed, telecopied, telegraphed, telexed, cabled or delivered, if to the
Borrower, at its address at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx,
Xxxxxxxx 00000; Attention: Senior Vice President, Finance; telecopy: (816)
527-1195; if to the Lender, at its address at 00 Xxxx Xxxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer, telecopy: (816)
467-3591; or, as to each party, at such other address as shall be designated
by such party in a written notice to the other party. All such notices and
communications shall not be effective until received.
SECTION 9.03. NO WAIVER; REMEDIES.
No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 9.04. COSTS AND EXPENSES; INDEMNIFICATION.
(a) Except to the extent limited by written agreement between the
Borrower and the Lender on or prior to the date hereof, the Borrower agrees
to pay on demand all reasonable costs and expenses incurred by the Lender in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Lender with respect thereto and
with respect to advising the Lender as to its rights and responsibilities
under this Agreement. The Borrower further agrees to pay on demand all costs
and expenses, if any (including, without limitation, counsel fees and
expenses of outside counsel and of internal counsel), incurred by the Lender
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement and the other documents to be
delivered hereunder, including, without limitation, counsel fees and expenses
in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower hereby agrees to indemnify and hold the Lender and
its respective officers, directors, employees and professional advisors
(each, an INDEMNIFIED PERSON) harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses (including, without
limitation, reasonable counsel fees and expenses of outside counsel and of
internal counsel, whether or not such Indemnified Person is named as a party
to any proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) that any of them may incur or which may be
claimed against any of them by any Person by reason of or in connection with
the execution, delivery or performance of this Agreement or any transaction
contemplated thereby, or the use by the Borrower or any of its subsidiaries
of the proceeds of any Advance. The Borrower's obligations under this Section
9.04(b) shall survive the repayment of all amounts owing to the Lender
hereunder and the termination of the Commitment. If and to the extent that
the obligations of the Borrower under this Section 9.04(b) are unenforceable
for any reason, the Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
15
SECTION 9.05. RIGHT OF SET-OFF.
Upon (i) the failure of the Borrower to make any payment when due
hereunder and (ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Lender to declare the Advances due
and payable pursuant to the provisions of Section 6.01, the Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or
hereafter existing hereunder held by the Lender, whether or not the Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. The Lender agrees promptly to notify the Borrower after any
such set-off and application made by it, PROVIDED that the failure to give
such notice shall not affect the validity of such set-off and application.
The rights of the Lender under this Section 9.05 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that it may have.
SECTION 9.06. BINDING EFFECT; ASSIGNMENT.
This Agreement shall become effective (as of the effective date
hereof) when executed by the Borrower and the Lender and shall be binding
upon and inure to the benefit of the Borrower and the Lender and their
respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein. This
Agreement supercedes and replaces the Original Revolver in all respects, and
any Notes outstanding under the Original Revolver on the date hereof shall be
in all respects governed by and in accordance with the terms of this
Agreement (including, without limitation, the Applicable Margins set forth in
Section 1.01 hereof).
SECTION 9.07. SUBMISSION TO JURISDICTION.
Each of the Borrower and the Lender (i) irrevocably submits to the
non-exclusive jurisdiction of any
Missouri State court or Federal court
sitting in Kansas City in any action arising out of this Agreement, (ii)
agrees that all claims in such action may be decided in such court, (iii)
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process by mail. A
final judgment in any such action shall be conclusive and may be enforced in
other jurisdictions. Nothing herein shall affect the right of any party to
serve legal process in any manner permitted by law or affect its right to
bring any action in any other court.
SECTION 9.08. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF
MISSOURI.
SECTION 9.09. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
SECTION 9.10. FURTHER ASSURANCES.
The Borrower shall, at the request of the Lender, do all such
further acts and execute and deliver all such further documents as may be
reasonably requested for the purposes of performing and carrying out the
terms and provisions of this Agreement and all other agreements, if any,
contemplated hereby. Without limiting the foregoing, the Borrower shall, at
the request of the Lender, tender all Notes evidencing any Advances
outstanding as of the date
16
hereof and sign new Notes in accordance with this Agreement (such new Notes
to be have the same term and maturity as the old Notes issued under the
Original Revolver).
SECTION 9.11. EFFECTIVE DATE.
This Agreement shall be effective from, on and after August 13, 2001.
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
UTILICORP UNITED INC.
By /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President Finance
and Treasurer
AQUILA, INC.
By /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
EXHIBIT A
FORM OF NOTE
$_____________________ _______________, 20__
FOR VALUE RECEIVED, the undersigned, AQUILA, INC., a Delaware
corporation (the BORROWER), hereby promises to pay to the order of UTILICORP
UNITED INC. (the LENDER), on the ___ calendar day following the date hereof,
the principal sum of _________________________ DOLLARS ($_____________), in
lawful money of the United States of America in immediately available funds,
and to pay interest on such principal amount from time to time outstanding,
in like funds, at a rate or rates per annum and payable with respect to such
periods and on such dates as determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest
and notice of any kind whatsoever. The non-exercise by the holder of any of
its rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments of the
principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof; PROVIDED, HOWEVER, that any failure of the
holder hereof to make such a notation or any error in such notation shall not
in any manner affect the obligation of the Borrower to make payments of
principal and interest in accordance with the terms of this Note and the
Credit Agreement.
This Note is one of the Notes referred to in the Amended & Restated
Revolving Credit Agreement dated October 1, 2001, but effective as of August
13, 2001, among the Borrower and the Lender (as amended from time to time in
accordance with its terms, the CREDIT AGREEMENT; capitalized terms used but
not defined herein having the meanings set forth therein) and is subject to
the terms and conditions contained in the Credit Agreement and is entitled to
the benefits thereof. The Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified.
This Note shall be construed in accordance with and governed by the
laws of the State of
Missouri and any applicable laws of the United States of
America.
AQUILA, INC.
By:
--------------------------------
Name:
Title:
