Exhibit 10.1.a.
SUPPORT AGREEMENT
BETWEEN
GREAT PLAINS ENERGY INCORPORATED
AND
X.X. XXXXXXX ENTERPRISES, INC.
This SUPPORT AGREEMENT (this "Agreement"), made as of the
25th day of October, 2001, is by and between GREAT PLAINS ENERGY
INCORPORATED ("Parent") and X.X. XXXXXXX ENTERPRISES, INC.
("RSAE").
WITNESSETH:
WHEREAS, Parent is the indirect owner of 100% of the
outstanding common stock of Home Service Solutions, Inc. ("HSS")
and HSS is the owner of 72% of the outstanding Series A and
Series B Convertible Preferred Stock and Common Stock of RSAE;
WHEREAS, RSAE currently maintains, and intends to incur
additional indebtedness ("Debt") under that certain Credit
Agreement, dated as of March 17, 2000 (as the same may be amended
or otherwise modified from time to time, the "Credit Agreement"),
among RSAE, various financial institutions (together with their
successors and assigns, "Lenders") and LaSalle Bank National
Association, as agent for the Lenders (in such capacity, together
with its successors and assigns in such capacity, the "Agent"),
thereby enabling RSAE to obtain financing for itself;
WHEREAS, Parent and RSAE desire to take certain actions to
enhance and maintain the financial condition of RSAE as
hereinafter set forth in order to enable RSAE to both maintain
and incur such Debt on more advantageous and reasonable terms
than would otherwise be
available; and
WHEREAS, the Agent and the Lenders will rely upon this
Agreement in both maintaining and making additional loans and
extensions of credit to RSAE;
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
1. STOCK OWNERSHIP. During the term of this Agreement,
Parent will own, directly or indirectly, free and clear of any
security interest, lien or encumbrance, all of the voting capital
stock of HSS now or hereafter issued and outstanding. During the
term of this Agreement, Parent will cause HSS to own, free and
clear of any security interest, lien or encumbrance, at least 51%
of the voting capital stock of RSAE now or hereafter issued and
outstanding.
2. NET WORTH. Parent agrees that it intends to cause both
HSS and RSAE to have at all times a positive tangible net worth
(stockholders' equity less intangible assets), as determined in
accordance with generally accepted accounting principles, except
that such determination shall be made on an unconsolidated basis.
3. LIQUIDITY. If, during the term of this Agreement, RSAE
is unable to make timely payment of interest or principal on any
Debt, Parent promptly shall provide to RSAE, at its request or
the request of the Agent or any Lender, such funds (in the form
of cash or liquid assets) as equity or, if Parent and RSAE
shall agree, as a loan. If such funds are advanced to RSAE as a
loan, such loan shall be on such terms and conditions, including
maturity and rate of interest, as Parent and RSAE shall agree;
provided, however, that any such loan shall be unsecured and
right of payment of any such loan shall be postponed and
subordinated to the prior payment in full in cash of all Debt
and the termination of all commitments to lend under the Credit
Agreement pursuant to subordination provisions in form and
substance satisfactory to the Agent. Notwithstanding any payments
made by or for the account of Parent pursuant to this Section
3, Parent shall not be subrogated to any of the rights of
the Agent or the Lenders until the payment in full in cash of
all Debt and the termination of all commitments to lend under
the Credit Agreement.
4. WAIVERS. Parent hereby waives any failure or delay on
the part of RSAE in asserting or enforcing any of its rights or
in making any claims or demands hereunder. RSAE and the Lenders
may at any time, without notice to (except as set forth below) or
consent by Parent and without affecting or impairing RSAE's or
the Lenders' rights or Parent's obligations hereunder, do any of
the following with respect to any Debt:
(a) retain or obtain security interest in any property
to secure any of the Debt,
(b) retain or obtain the primary or secondary
obligation of any other obligor or obligator with respect to
any of the Debt,
(c) extend or renew for one or more periods (whether or
not longer than the original period), alter or exchange any
Debt, or release or compromise any obligation of any nature
of any obligor with respect to any Debt,
(d) release its security interest in, or surrender,
release or permit any substitution or exchange for, all or
any part of any property securing any Debt, or extend or
renew for one or more periods (whether or not longer than
the original period) or release, compromise, alter or
exchange any obligations of any nature of any obligor with
respect to any such property,
(e) amend the Credit Agreement or any related document
from time to time in any manner, and
(f) extend loans and other financial accommodations to
either HSS or RSAE in addition to the Debt.
The Agent will endeavor to provide notice to Parent of any
loans or other financial accommodations described in clause (f)
above of which the Agent has knowledge; provided that failure to
give such notice shall not affect the obligations of Parent
hereunder.
5. TERMINATION; AMENDMENT. The Agreement may be amended or
terminated at any time by written amendment or agreement signed
by each party; provided, however, that:
(a) no modification of or amendment to this Agreement
may be made in a manner that adversely affects the rights of
the Lenders unless (i) such modification or amendment occurs
after all Debt shall have been paid in full in cash and the
Lenders have no further commitment to make advances under
the Credit Agreement or (ii) all Lenders consent in advance
and in writing to such modification or amendment;
(b) this Agreement may be terminated only after all
Debt shall have been paid in full and the Lenders have no
further commitment to make advances under the Credit
Agreement; and
(c) notwithstanding any prior termination of this
Agreement in accordance with clause (b) above, if at any
time all or any part of any payment theretofore applied by
the Agent or any Lender to the Debt is or must be rescinded
or returned by the Agent or any Lender for any reason
(including, without limitation, the insolvency, bankruptcy
or reorganization of RSAE or Parent), such Debt shall be
deemed to have continued in existence and this Agreement
shall be reinstated, all as though such application by the
Agent or such Lender had not been made.
6. RIGHTS AND REMEDIES OF THE AGENT. The Agent shall have
the right to demand that RSAE exercise any and all of its rights
and remedies under this Agreement, and, if RSAE fails or refuses
to take timely action to exercise its rights and remedies
hereunder or if RSAE defaults in the timely payment of interest,
fees or principal on any Debt when due, the Agent may proceed
directly against Parent to exercise RSAE's rights and remedies
hereunder (including, without limitation, any and all rights of
RSAE to demand or otherwise require payment of any amount under,
or performance of any provision of, this Agreement) or to obtain
payment of such defaulted interest, fees or principal owed to any
Lender, and Parent shall comply and cooperate in all respects
with any such exercise and shall, if the Agent so requests, pay
any such amounts directly to the Agent. Anything herein to the
contrary notwithstanding, the Agent and the Lenders may proceed
to enforce this Agreement against the undersigned, without
pursuing or exhausting any right or remedy which the Agent or the
Lenders may have against RSAE or any other person, firm or
corporation.
7. Representations and Warranties. Each of the undersigned
represents and warrants for the benefit of the Agent and the
Lenders that: a) this Agreement has been duly authorized,
executed and delivered by such undersigned, is in full force and
effect and is binding upon and enforceable against such
undersigned in accordance with its terms; and (b) Parent has no
defense, setoff or counterclaim arising under this Agreement.
Parent acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the
Credit Agreement.
8. NOTICES. Any notice, instruction, request, consent,
demand or other communication required or contemplated by this
Agreement shall be in writing, shall be given or made or
communicated by United States mail, facsimile transmission or
hand delivery,
addressed as follows:
If to Parent: GREAT PLAINS ENERGY INCORPORATED
0000 Xxxxxx, 00 xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
If to RSAE: X.X. XXXXXXX ENTERPRISES, INC.
0000 XxXxxx Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
9. SUCCESSORS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and is
also intended for the benefit of the Agent and the Lenders (the
"Benefitted Parties"), notwithstanding that such Benefitted
Parties are not parties hereto, each Benefitted Party shall be
entitled to the full benefits of this Agreement and to enforce
the covenants and agreements contained herein. This Agreement is
not intended for the benefit of any person other than the
Benefitted Parties, and shall not confer or be deemed to confer
upon any other such person any benefits, rights or remedies
hereunder.
10. GOVERNING LAW. This Agreement shall be governed by the
internal laws of the State of Missouri.
11. REMEDIES. The parties to this Agreement acknowledge and
agree that breach of any of the covenants of Parent set forth
herein may not be compensable by payment of money damages and,
therefore, that the covenants of Parent set forth herein may be
enforced in equity by a decree requiring specific performance.
Such remedies shall be cumulative and non-exclusive and shall be
in addition to any other rights and remedies RSAE may have under
this Agreement.
12. COSTS AND EXPENSES. After the occurrence of an Event of
Default (as defined in the Credit Agreement), Parent agrees that
it will pay all reasonable out-of-pocket expenses, legal fees and
legal costs incurred by RSAE, the Agent or any Lender in
protecting and enforcing its rights hereunder or in connection
herewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers as of the date
first above written.
GREAT PLAINS ENERGY INCORPORATED
By:/s/ Xxxxxx X. Xxxxxxxx
Its: V.P.-Finance, CFO and Treasurer
X.X. XXXXXXX ENTERPRISES, INC.
By:/s/Xxxxxxx X. Xxxxxxx
Its: CFO
By: /s/ X. Xxxxxxxx
Its: Secretary
