AMENDMENT & CONSENT
Exhibit
10.1.6
AMENDMENT
& CONSENT
June 2,
2008
Union
Bank of California, N.A.,
acting as Administrative
Agent
000 Xxxxx
Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Attn: Xxxxx
Xxxxxxx
Dear
Xxxxx:
Reference
is made to the $300,000,000 Credit Agreement, dated as of August 31, 2005 (as
amended, modified or supplemented as of the date hereof, the “Credit
Agreement”), among Aquila, Inc. (the “Company”),
the banks named therein, and Union Bank of California, N.A., as Administrative
Agent and as Issuing Bank. Capitalized terms used but not defined
herein have the meanings given to them in the Credit 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, and Xxxxxxx Acquisition Corp. (the “Merger
Agreement”), the Company has agreed to be acquired by GPE. The
transaction will be consummated by merging Xxxxxxx Acquisition Corp. with and
into Company (the “Merger”),
with the Company continuing as the surviving corporation. Upon
completion of the Merger, the Company will become a wholly-owned subsidiary of
GPE.
Immediately
prior to closing the Merger, and as a condition precedent to the completion of
the Merger, the Company will sell certain of its utility properties to Black
Hills Corporation for a base purchase price of $940 million (the “Asset
Sale”). None of the assets to be acquired by Black Hills
Corporation are pledged as, or otherwise constitute, Collateral. The
net cash proceeds of the Asset Sale will be used, in part, to fund the cash
portion of the consideration to be paid to the Company’s shareholders in the
Merger.
In
connection with the Merger, and in order to achieve the forecast merger
synergies, GPE will functionally integrate the utility operations of the Company
and Kansas City Power & Light Company, a Missouri corporation and
wholly-owned subsidiary of GPE (“KCPL”). The
Company expects to complete the Asset Sale and the Merger on or about July 1,
2008, but no later than August 6, 2008.
Section
8.02(c) of the Credit Agreement provides that the Company may not enter into any
merger without the consent of the Required Lenders. Section
8.02(d)(iii) of the Credit Agreement provides that the Company will use the net
cash proceeds of asset sales for general corporate purposes. Section
8.02(h) of the Credit Agreement permits the Company to enter into only
certain
2
types of
affiliate transactions. Section 9.01(k) of the Credit Agreement
provides that, without the consent of the Required Lenders, a Change in Control
constitutes an Event of Default.
Section
2. Request
for Amendments & Consents.
Subject
to the satisfaction of the conditions set forth in Section 3 below, the Company
requests that, effective as of the completion of the Merger (the “Effective
Date”), the Required Lenders:
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a.
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consent
to the Merger, including the use of the net cash proceeds of the Asset
Sale to fund, in part, the cash component of the consideration payable to
the Company’s shareholders in connection with the
Merger;
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b. consent
to the Change in Control that will occur upon completion of the
Merger;
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c.
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amend
the first sentence in Section 7.01(n) of the Credit Agreement by adding
the words “any material amount” between the words “contributes” and
“to”;
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d.
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amend
Section 7.01(o) of the Credit Agreement by deleting the second sentence
thereof; and,
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e.
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amend
Section 8.02(h) of the Credit Agreement by adding the following language
to the end thereof:
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“; provided, that the
foregoing restrictions will not apply to affiliate transactions (A) subject to
the affiliate transaction rules and regulations of the MPSC or otherwise
authorized by the applicable state or federal regulatory authorities, or (B)
necessary to functionally integrate and operate the utility operations of the
Borrower and Kansas City Power & Light Company”.
Section
3. Representations
and Warranties; Conditions Precedent.
The
Company hereby represents and warrants to you that, as of the Effective Date and
after giving effect to the amendments and consents contained in this letter
agreement (this “Amendment &
Consent”), each of the representations and warranties made by the Company
in or pursuant to Section 7.01 of the Credit Agreement (other than the
representations and warranties in Section 7.01(b) thereof) will be true and
correct in all material respects as if made on and as of the Effective Date
(except to the extent such representation and warranty specifically relates to
an earlier date, in which case such representation and warranty will have been
true and correct in all material respects on and as of such earlier date), and
no Event of Default will have occurred and be continuing. For
purposes of this Amendment & Consent, references in Section 7.01 of the
Credit Agreement to “this Agreement’, “hereunder”, “hereof” and words of like
import referring to the Credit Agreement will be deemed to be a reference to
this Amendment & Consent and the Credit Agreement, as modified
hereby.
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Notwithstanding
anything herein, in no event will the amendments and consents set forth herein
become effective unless and until the following condition precedents have been
satisfied: (i) GPE has delivered to the Administrative Agent a written guarantee
(in a form reasonably acceptable to the Administrative Agent) for the benefit of
the Lenders, pursuant to which GPE guarantees the payment and other obligations
of the Company under the Credit Agreement; and (ii) GPE has paid, or caused to
be paid, to the Administrative Agent a fee to be agreed upon GPE and the
Administrative Agent after the date hereof, for the benefit of the Lenders that
timely execute this Amendment & Consent.
Section
4. Execution and Delivery.
If you
agree to the above requests, please evidence such consent by executing and
returning at least four counterparts of this Amendment & Consent 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. (Los Angeles time) on Tuesday, June 10, 2008.
Section
5. Miscellaneous.
The
execution, delivery and effectiveness of this Amendment & Consent will not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender under the Credit Agreement, nor constitute a waiver of any
other provision of the Credit Agreement. This Amendment & Consent
is subject to the provisions of Section 11.01 of the Credit Agreement, and will
be binding on the parties hereto and their respective successors and permitted
assigns under the Credit Agreement.
This
Amendment & Consent 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 Amendment & Consent
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Very
truly yours,
AQUILA,
INC.
By: /s/
Xxxxxxx Xxxx
Xxxxxxx Xxxx
Vice President, Finance and
Treasurer
UNION
BANK OF CALIFORNIA, N.A.
as
Administrative Agent, Issuing Bank and a Lender
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title: Vice
President
ALLIED
IRISH BANKS, P.L.C.
as
a Lender
By: /s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title: Vice
President
By: /s/
Xxxxx X’Xxxxxxxx
Name:
Xxxxx X’Xxxxxxxx
Title:
Assistant Vice President
GENERAL
ELECTRIC CAPITAL CORPORATION
as
a Lender
By: /s/
Xxxxxxx Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title: Authorized
Signatory
By:
________________________________
Name:
Title:
ING
CAPITAL LLC
as
a Lender
By: /s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Title:
Managing Director
By: /s/
Xxxxxx Xxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxx
Title:
Associate
CREDIT
INDUSTRIAL ET COMMERCIAL
as
a Lender
By: /s/
Xxxx X. Palin
Name:
Xxxx X. Palin
Title:
Vice President
By:
_________________________
Name:
Title:
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH
as
a Lender
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Managing Director
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Associate
ERSTE
BANK DER OESTERREICHISSCHEN
SPARKASSEN
AG
as
a Lender
By: /s/
Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Managing Director
By: /s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Executive Director
XXXXXX
COMMERCIAL PAPER INC.
As
a Lender
By: /s/
Xxxxxxx Xxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxx
Title: Authorized
Signatory
LANDESBANK
HESSEN-THURINGEN
GIROZENTRALE
as
a Lender
By: /s/
Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Senior Vice President
Corporate Finance Division
By: /s/
Xxxxxx Xxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxx
Title:
Assistant Vice President
Corporate Finance
Department
HVB
GLOBAL ASSETS COMPANY L.P.
as
a Lender
By: /s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
CPA
By: /s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Attorney-in-fact
THE
FOOTHILL GROUP, INC.
as
a Lender
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Sr. VP
By:
________________________________
Name:
Title:
