FORM OF GUARANTY dated as of July 14, 2008 between GREAT PLAINS ENERGY INCORPORATED, and UNION BANK OF CALIFORNIA, N.A., as Agent
Exhibit
10.1
FORM OF
GUARANTY
dated as
of
July 14,
2008
between
GREAT
PLAINS ENERGY INCORPORATED,
and
UNION
BANK OF CALIFORNIA, N.A.,
as
Agent
TABLE OF
CONTENTS
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ARTICLE
I
DEFINITIONS
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SECTION
1.01
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Financing
Agreement
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1
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SECTION
1.02
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Other
Defined Terms
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1
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ARTICLE
II
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SECTION
2.01
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2
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SECTION
2.02
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Guaranty
of Payment
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2
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SECTION
2.03
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No
Limitations
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2
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SECTION
2.04
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Reinstatement
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2
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SECTION
2.05
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Agreement
To Pay; Subrogation
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3
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SECTION
2.06
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Information
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3
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ARTICLE
III
INDEMNITY,
SUBROGATION AND SUBORDINATION
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SECTION
3.01
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Indemnity
and Subrogation
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3
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SECTION
3.02
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Subordination
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3
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ARTICLE
IV
MISCELLANEOUS
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SECTION
4.01
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Notices
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3
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SECTION
4.02
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Waivers;
Amendment
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4
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SECTION
4.03
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Successors
and Assigns
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4
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SECTION
4.04
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Survival
of Agreement
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4
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SECTION
4.05
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Counterparts;
Effectiveness; Several Agreement
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4
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SECTION
4.06
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Severability
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5
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SECTION
4.07
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Right
of Set-Off
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5
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SECTION
4.08
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Governing
Law; Jurisdiction; Consent to Service of Process
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5
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SECTION
4.09
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WAIVER
OF JURY TRIAL
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6
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SECTION
4.10
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Headings
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6
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SECTION
4.11
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Termination
or Release
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6
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i
GUARANTY
dated as of July 14, 2008, between GREAT PLAINS ENERGY INCORPORATED (the “Guarantor”) and UNION
BANK OF CALIFORNIA, N.A., as Agent.
Reference
is made to the Financing Agreement dated as of April 22, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Financing
Agreement”), among Aquila, Inc. (the “Borrower”), the
lenders from time to time party thereto (collectively, the “Lenders” and
individually, a “Lender”), and Union
Bank of California, N.A. as Agent (together with its successors in such
capacity, the “Agent”). The
Lenders have extended credit to the Borrower subject to the terms and conditions
set forth in the Financing Agreement. Pursuant to an Agreement and
Plan of Merger dated as of February 6, 2007, by and among the Guarantor,
Borrower, Black Hills Corporation and Xxxxxxx Acquisition Corp. (the “Merger Agreement”),
the Borrower has agreed to be acquired by the Guarantor. The
transaction will be consummated by merging Xxxxxxx Acquisition Corp. with and
into the Borrower (the “Merger”), with the
Borrower continuing as the surviving corporation. Upon completion of
the Merger, the Borrower will become a wholly-owned subsidiary of the Guarantor,
and the Guarantor will derive substantial benefits from the extension of credit
to the Borrower pursuant to the Financing Agreement and is willing to execute
and deliver this Agreement. Accordingly, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Financing Agreement. Capitalized
terms used in this Agreement and not otherwise defined herein have the meanings
specified in the Financing Agreement.
SECTION 1.02. Other Defined
Terms. As
used in this Agreement, the following terms have the meanings specified
below:
“Agreement” means this
Guaranty.
“Financing Agreement” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“Guarantor” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
“Guaranty Parties”
means, collectively, the Borrower and the Guarantor.
“Obligations” shall
mean all obligations of the Borrower under the Financing Agreement.
“Person” shall mean
any natural person, corporation, business trust, joint venture, association,
company, limited liability company, partnership, governmental authority or other
entity.
ARTICLE
II
SECTION 2.01. Guaranty. The
Guarantor unconditionally guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment and performance of the
Obligations. The Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. The Guarantor waives
presentment to, demand of payment from and protest to the Borrower of any of the
Obligations, and also waives notice of acceptance of its guarantee and notice of
protest for nonpayment.
SECTION 2.02. Guaranty of
Payment. The
Guarantor further agrees that its guarantee hereunder constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by the Agent or any Lender to any security held for the payment of
the Obligations, or to any balance of any deposit account or credit on the books
of the Agent or any Lender in favor of the Borrower or any other
Person.
SECTION 2.03. No
Limitations. (a) Except
for termination of the Guarantor’s obligations hereunder as expressly provided
in Section
4.11, the obligations of the Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations, or otherwise. Without limiting the generality of the
foregoing, the obligations of the Guarantor hereunder shall not be discharged or
impaired or otherwise affected by (i) the failure of the Agent or any Lender to
assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by
the Agent or any Lender for the Obligations; (iv) any default, failure or delay,
willful or otherwise, in the performance of the Obligations; or (v) any other
act or omission that may or might in any manner or to any extent vary the risk
of the Guarantor or otherwise operate as a discharge of the Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
(b) To
the fullest extent permitted by applicable law, the Guarantor waives any defense
based on or arising out of any defense of the Borrower or the unenforceability
of the Obligations, or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower, other than the payment in full in
cash of all the Obligations.
SECTION 2.04. Reinstatement. The
Guarantor agrees that its guarantee hereunder shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation, is rescinded or must otherwise be restored by the Agent or
any Lender upon the bankruptcy or reorganization of the Borrower or
otherwise.
2
SECTION 2.05. Agreement To Pay;
Subrogation. In
furtherance of the foregoing and not in limitation of any other right that the
Agent or any Lender has at law or in equity against the Guarantor by virtue
hereof, upon the failure of the Borrower to pay any Obligation when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, the Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Agent for distribution to the Lenders in cash
the amount of such unpaid Obligation. Upon payment by the Guarantor
of any sums to the Agent as provided above, all rights of the Guarantor against
the Borrower arising as a result thereof by way of right of subrogation,
contribution, indemnity or otherwise shall in all respects be subject to Article
III.
SECTION 2.06. Information. The
Guarantor assumes all responsibility for being and keeping itself informed of
the Borrower’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations, and the nature, scope
and extent of the risks that the Guarantor assumes and incurs hereunder, and
agrees that none of the Agent or the other Lenders will have any duty to advise
the Guarantor of information known to it or any of them regarding such
circumstances or risks.
ARTICLE
III
INDEMNITY, SUBROGATION AND
SUBORDINATION
SECTION 3.01. Indemnity and
Subrogation. In
addition to all such rights of indemnity and subrogation as the Guarantor may
have under applicable law (but subject to Section 3.02), the
Borrower agrees that in the event a payment of an obligation shall be made by
the Guarantor under this Agreement, the Borrower shall indemnify the Guarantor
for the full amount of such payment and the Guarantor shall be subrogated to the
rights of the Person to whom such payment shall have been made to the extent of
such payment.
SECTION 3.02. Subordination. Notwithstanding
any provision of this Agreement to the contrary, all rights of the Guarantor
under Section
3.01 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of
the Borrower or the Guarantor to make the payments required by Section 3.01 (or any
other payments required under applicable law or otherwise) shall in any respect
limit the obligations and liabilities of the Guarantor with respect to its
obligations hereunder, and the Guarantor shall remain liable for the full amount
of the obligations of the Guarantor hereunder.
ARTICLE
IV
MISCELLANEOUS
SECTION 4.01. Notices. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in the Financing
Agreement. All communications and notices hereunder to the Guarantor
shall be given to it in care of the Borrower as provided in the Financing
Agreement.
3
SECTION 4.02. Waivers; Amendment. (a) No
failure or delay by the Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any
departure by the Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section 4.02, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Agent or any Lender may have had notice or
knowledge of such Default at the time. No notice or demand on any
Guaranty Party in any case shall entitle any Guaranty Party to any other or
further notice or demand in similar or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Agent and the Guaranty Party or Guaranty Parties with respect to which such
waiver, amendment or modification is to apply, subject to any consent required
in accordance with the Financing Agreement.
SECTION 4.03. Successors and
Assigns. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Guarantor or the Agent
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and assigns. The Guaranty Parties shall
not have the right to assign or transfer their respective rights or obligations
hereunder or any interest herein (and any such assignment or transfer shall be
void) except as expressly contemplated by this Agreement or the Credit
Agreement.
SECTION 4.04. Survival of
Agreement. All
covenants, agreements, representations and warranties made by the Guaranty
Parties in the Loan Documents and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any
other Loan Document shall be considered to have been relied upon by the Lenders
and shall survive the execution and delivery of the Loan Documents and the
making of any Loans, regardless of any investigation made by any Lender or on
its behalf and notwithstanding that the Agent or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Financing Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under any Loan Document is outstanding
and unpaid and so long as the Commitments have not expired or
terminated.
SECTION 4.05. Counterparts; Effectiveness;
Several Agreement. This
Agreement may be executed in counterparts, each of which shall constitute an
original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by
facsimile transmission or other electronic communication shall be
as
4
effective
as delivery of a manually signed counterpart of this Agreement. This
Agreement shall become effective as to the Guaranty Parties when (i) a
counterpart hereof executed on behalf of the Guaranty Parties shall have been
delivered to the Agent and a counterpart hereof shall have been executed on
behalf of the Agent and (ii) the closing of the Merger shall have
occurred.
SECTION 4.06. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 4.07. Right of
Set-Off. In
addition to any rights and remedies of the Lenders provided by Law, upon the
occurrence and during the continuance of any Event of Default, each Lender is
authorized at any time and from time to time, without prior notice to the
Borrower or the Guarantor, any such notice being waived by the Borrower and the
Guarantor to the fullest extent permitted by applicable Law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other Indebtedness at any time owing by, such
Lender to or for the credit or the account of the respective Guaranty Parties
against any and all obligations owing to such Lender hereunder, now or hereafter
existing, irrespective of whether or not such Lender shall have made demand
under this Agreement and although such obligations may be contingent or
unmatured or denominated in a currency different from that of the applicable
deposit or Indebtedness. Each Lender agrees promptly to notify the
Borrower and the Agent after any such set off and application made by such
Lender. The rights of each Lender under this Section 4.07 are in
addition to other rights and remedies (including other rights of setoff) that
the Agent and such Lender may have.
SECTION 4.08. Governing Law; Jurisdiction;
Consent to Service of Process.
(a) This Agreement shall be governed by and construed in accordance
with the law of the State of New York.
(b) Each
of the Guaranty Parties hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York City and of the United States District
Court for the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Agent or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Guarantor, or its properties in the courts of any
jurisdiction.
5
(c) Each
of the Guaranty Parties hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section
4.08. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section
4.01. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 4.09. WAIVER OF JURY
TRIAL. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.09.
SECTION 4.10. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION 4.11. Termination or
Release. (a) This
Agreement and the guaranty made herein shall terminate with respect to all
Obligations when all the outstanding Obligations have been indefeasibly paid in
full and the Lenders have no further commitment to lend or extend credit under
the Financing Agreement.
(b) In
connection with any termination or release pursuant to paragraph (a), the Agent
shall execute and deliver to the Guarantor, at the Guarantor’s expense, all
documents that the Guarantor shall reasonably request to evidence such
termination or release.
6
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
| GREAT
PLAINS ENERGY
INCORPORATED
|
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Executive
Vice President –
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Finance
and Strategic
|
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Development
and Chief
|
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Financial
Officer
|
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[Guaranty]
IN
WITNESS WHEREOF, for the purposes of Section 3.01 and 4.02 only, the Borrower
has executed this Agreement as of the date first written above.
| AQUILA, INC. | |||
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By:
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/s/
Xxxxxxx Xxxx
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Name:
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Xxxxxxx
Xxxx
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Title:
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Vice
President, Finance & Treasurer
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[Guaranty]
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and
year first above written.
| UNION BANK OF CALIFORNIA, N.A., as Agent | |||
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name:
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Xxxxx
X. Xxxxxxx
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Title:
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Vice
President
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[Guaranty]
