FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT
AGREEMENT dated as of May 16, 2008 (the “Agreement”) is
entered into among Great Plains Energy Incorporated, a Missouri corporation (the
“Borrower”),
the Lenders party hereto and Bank of America, N.A., as Administrative
Agent. All capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Credit Agreement (as
defined below).
RECITALS
WHEREAS, the Borrower, the Lenders,
JPMorgan Chase Bank, N.A., as Syndication Agent and Bank of America, N.A., as
Administrative Agent entered into that certain Credit Agreement dated as of May
11, 2006 (as amended or modified from time to time, the “Credit
Agreement”);
WHEREAS,
the Borrower has requested that the Lenders amend the Credit Agreement as set
forth below;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. The
Credit Agreement is hereby amended as follows:
(a) Section
1.1 of the Credit Agreement is hereby amended by adding the following
definitions in the appropriate alphabetical order:
“Aquila” means Aquila, Inc., a Delaware
corporation.
“Aquila
Acquisition” means the acquisition of Aquila by the Borrower pursuant to the
terms of that certain Agreement and Plan of Merger dated as of February 6, 2008
by and among the Borrower, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acquisition Corp. and Black Hills
Corporation, as amended or modified.
(b) Section
6.12(xiv) of the Credit Agreement is hereby amended to read as
follows:
(xiv) Liens
on (including Liens arising out of the sale of) accounts receivable and/or
contracts which will give rise to accounts receivable of KCPL, Strategic Energy,
L.L.C. and, following the consummation of the Aquila Acquisition, Aquila; and
other Liens on (including Liens arising out of the sale of) accounts receivable
and/or contracts which will give rise to accounts receivable of the Borrower or
any Subsidiary in an aggregate amount not at any time exceeding
$10,000,000.
(c) The
proviso in Section 6.16 of the Credit Agreement is hereby amended to read as
follows:
provided, that (a)
the foregoing provisions of this Section 6.16 shall
not prohibit the Borrower or any Significant Subsidiary from entering into any
debt instrument containing a total debt to capitalization covenant, (b)
Strategic Energy, L.L.C. may be a party to a credit agreement restricting its
ability to pay dividends to the Borrower if a
breach of
any financial covenant in such agreement exists or would result from such
payment so long as any such financial covenant is customary for
similarly-situated companies and (c) following the consummation of the Aquila
Acquisition, Aquila may continue to be a party to the credit agreements in
existence at the time of the consummation of the Aquila Acquisition, which
restrict Aquila’s ability to pay dividends if (i) a breach of any financial
covenant in such agreements exists or would result from such payment or (ii)
Aquila’s senior unsecured credit rating is below Ba2 by ▇▇▇▇▇’▇ and BB by
S&P.
2. Conditions
Precedent. This Agreement shall be effective upon receipt by
the Administrative Agent of counterparts of this Agreement duly executed by the
Borrower, the Administrative Agent and the Required Lenders.
3. Miscellaneous.
(a) Except
as herein specifically agreed, the Credit Agreement, and the obligations of the
Borrower thereunder and under the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect according to their
terms.
(b) The
Borrower hereby represents and warrants as follows:
(i) The
Borrower has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(ii) This
Agreement has been duly executed and delivered by the Borrower and constitutes
the Borrower’s legal, valid and binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(iii) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by the
Borrower of this Agreement.
(c) The
Borrower represents and warrants to the Lenders that (i) the representations and
warranties of the Borrower set forth in Article V of the Credit Agreement are
true and correct as of the date hereof with the same effect as if made on and as
of the date hereof, except to the extent such representations and warranties
expressly relate solely to an earlier date and (ii) no event has occurred and is
continuing which constitutes a Default or an Unmatured Default.
(d) This
Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument. Delivery of an executed counterpart of
this Agreement by telecopy shall be effective as an original and shall
constitute a representation that an executed original shall be
delivered.
2
(e) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
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3
Each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
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BORROWER:
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GREAT
PLAINS ENERGY INCORPORATED
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a
Missouri corporation
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By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
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Title: Executive
Vice President – Finance and Strategic
Development and CFO
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LENDERS:
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BANK
OF AMERICA, N.A.
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individually
in its capacity as a
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Lender
and in its capacity as Administrative Agent
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By: /s/
▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
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Title:
Vice President
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JPMORGAN
CHASE BANK, N.A.
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By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: Vice
President
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BNP
PARIBAS
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By: /s/
▇▇▇▇▇ ▇. ▇’▇▇▇▇▇
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Name: ▇▇▇▇▇
▇’▇▇▇▇▇
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Title: Managing
Director
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By: /s/
M ▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇
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Title: Vice
President
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THE
BANK OF TOKYO-MITSUBISHI UFJ,
LIMITED,
CHICAGO BRANCH
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By: /s/
Chi-▇▇▇▇▇ ▇▇▇▇
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Name: Chi-▇▇▇▇▇
▇▇▇▇
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Title: Authorized
Signatory
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WACHOVIA
BANK
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By: /s/
▇. ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title: Director
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BANK
OF NEW YORK
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By:
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Name:
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Title:
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KEY
BANK NATIONAL ASSOCIATION
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By: /s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Senior
Vice President
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THE
BANK OF NOVA SCOTIA
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By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇
▇▇▇▇▇▇
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Title: Managing
Director
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UMB
BANK, N.A.
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By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
Senior Vice President
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COMMERCE
BANK, N.A.
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By: /s/
R. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Name:
R. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
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Title: Vice
President
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