FIRST EXTENSION AGREEMENT
EXECUTION VERSION
THIS FIRST EXTENSION AGREEMENT, dated as of July 19, 2013 (this “Agreement”), among WESTAR ENERGY, INC., a Kansas corporation (the “Borrower”), Kansas Gas and Electric Company, a Kansas corporation (the “Guarantor”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”), CITIBANK, N.A., as syndication agent, and BANK OF AMERICA, N.A., THE BANK OF NEW YORK MELLON, UNION BANK, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as documentation agents.
RECITALS
A. The Borrower, the banks and other financial institutions party thereto and the Administrative Agent are parties to that certain Credit Agreement dated as of September 29, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings given to them in the Credit Agreement as they may be modified pursuant to this Agreement.
B. The Borrower has requested a one-year extension of the Revolving Termination Date pursuant to Section 2.1(b) of the Credit Agreement and the Lenders signatory hereto have approved such request.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1.EXTENSION
Pursuant to Section 2.1(b) of the Credit Agreement, the Borrower provided not less than 65 days’ written notice to the Administrative Agent prior to September 29, 2013 (the “Noticed Anniversary Date”) of its request to extend the Revolving Commitments. As of the date hereof, Lenders (the “Extending Lenders”) holding more than fifty percent (50%) of the Total Revolving Commitments have approved the Borrower’s request to extend the Revolving Commitments and, subject to the satisfaction of the conditions precedent set forth in Section 3, the Revolving Termination Date as to the Extending Lenders shall be extended for an additional year from the then-applicable Revolving Termination Date. The Revolving Termination Date as to any Declining Lender remains unchanged.
SECTION 2. AMENDMENT
The following definition set forth in Section 1.1 of the Credit Agreement is amended in its entirety to read as follows:
“L/C Commitment”: up to $300,000,000; it being understood that the commitment of each of JPMorgan Chase Bank, N.A., Citibank, N.A. and U.S. Bank, National Association to issue Letters of Credit is $100,000,000 (unless otherwise agreed in writing by JPMorgan Chase Bank, N.A., Citibank, N.A. or U.S. Bank, National Association, respectively, in their discretion, together with the Borrower).
SECTION 3. CONDITIONS PRECEDENT
The extension of the Revolving Termination Date pursuant to Section 1 shall become effective as of the date when, and only when, each of the following conditions precedent shall have been satisfied (the “Extension Date”):
(a) The Administrative Agent (or its counsel) shall have received from the Borrower, Extending Lenders constituting Required Lenders and from each Issuing Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic image scan transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Borrower shall have paid:
(A) to the Administrative Agent, for the account of each Extending Lender, an extension fee in the amount of 0.06% of such Extending Lender’s Revolving Commitment as of the Extension Date, which extension fee once paid will be fully earned and nonrefundable; and
(B) all other fees and reasonable expenses of the Administrative Agent and the Lenders required under the Credit Agreement and any other Loan Document to be paid on or prior to the Extension Date (including reasonable fees and expenses of counsel) in connection with this Agreement.
(c) The Administrative Agent shall have received a certificate, dated the Extension Date and signed by an authorized officer of the Borrower, confirming (i) no Default or Event of Default shall have occurred and be continuing on the Extension Date and after giving effect thereto and (ii) the representations and warranties set forth in Section 4 hereof, if not qualified as to materiality, shall be true and correct in all material respects and all other representations and warranties set forth in Section 4 hereof shall be true and correct, in each case on and as of the Extension Date with the same force and effect as if made on or as of the Extension Date (except for those representations and warranties or parts thereof that, by their terms, expressly relate solely to a specific date, in which case such representations and warranties, if not qualified as to materiality, shall be true and correct in all material respects and all such other representations and warranties shall be true and correct, in each case as of such specific date).
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the Lenders that (i) each of the representations and warranties contained in Section 3 of the Credit Agreement, if not qualified as to materiality, are true and correct in all material respects on and as of the Extension Date, both immediately before and after giving effect to this Agreement (except for those representations and warranties or parts thereof that, by their terms, expressly relate solely to a specific date, in which case such representations and warranties, if not qualified as to materiality, shall be true and correct in all material respects and all such other representations and warranties shall be true and correct, in each case as of such specific date), (ii) this Agreement has been duly authorized, executed and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower enforceable against it in accordance with its terms and (iii) no Default or Event of Default shall have occurred and be continuing on the Extension Date, both immediately before and after giving effect to this Agreement.
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SECTION 5. ACKNOWLEDGMENT AND CONFIRMATION OF THE BORROWER AND GUARANTOR
Each of the Borrower and Guarantor hereby confirms and agrees that after giving effect to this Agreement, the Credit Agreement and the other Loan Documents remain in full force and effect and enforceable against each Loan Party in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any respect. Each of the Borrower and Guarantor represents and warrants to the Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or with respect to its obligations under the Loan Documents, or if the Borrower or Guarantor has any such claims, counterclaims, offsets, or defenses to the Loan Documents or any transaction related to the Loan Documents, the same are hereby waived, relinquished, and released in consideration of the execution of this Agreement. This acknowledgment and confirmation by the Borrower and Guarantor is made and delivered to induce the Administrative Agent and the Lenders to enter into this Agreement. Each of the Borrower and Guarantor acknowledges that the Administrative Agent and the Lenders would not enter into this Agreement in the absence of the acknowledgment and confirmation contained herein.
SECTION 6. MISCELLANEOUS
(a) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5‑1401 AND 5‑1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
(b) Full Force and Effect. Except as expressly modified hereby, the Credit Agreement shall continue in full force and effect in accordance with the provisions thereof on the date hereof. As used in the Credit Agreement, “hereinafter,” “hereto,” “hereof,” and words of similar import shall, unless the context otherwise requires, mean the Credit Agreement after giving effect to this Agreement. Any reference to the Credit Agreement or any of the other Loan Documents herein or in any such documents shall refer to the Credit Agreement and Loan Documents as modified hereby. This Agreement is limited as specified and shall not constitute or be deemed to constitute an amendment, modification or waiver of any provision of the Credit Agreement except as expressly set forth herein. This Agreement shall constitute a Loan Document under the terms of the Credit Agreement.
(c) Expenses. The Borrower agrees on demand (i) to pay all reasonable fees and expenses of counsel to the Administrative Agent, and (ii) to reimburse the Administrative Agent for all reasonable out-of-pocket costs and expenses, in each case, in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents delivered in connection herewith.
(d) Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(e) Successors and Assigns. This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.
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(f) Construction. The headings of the various sections and subsections of this Agreement have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof. The provisions of Section 1.2 of the Credit Agreement are hereby incorporated by reference as if fully set forth herein.
(g) Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or by email shall be effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
WESTAR ENERGY, INC., as Borrower
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Senior Vice President, Chief Financial Officer and Treasurer
KANSAS GAS AND ELECTRIC COMPANY, as Guarantor
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Vice President and Treasurer
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JPMORGAN CHASE BANK, N.A., as Administrative Agent, as an Issuing Lender and as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: | Vice President |
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CITIBANK, N.A., as an Issuing Lender and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: | Vice President |
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U.S. BANK, NATIONAL ASSOCIATION, as an Issuing Lender and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: | Vice President |
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UMB Bank, n.a.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: | Senior Vice President |
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: | Vice President |
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Barclays Bank PLC
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: | Vice President |
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XXXXXXX XXXXX BANK USA
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: | Authorized Signatory |
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Xxxxx Fargo Bank, National Association, as a Lender
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: | Director |
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CoBank, ACB
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: | Vice President |
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UNION BANK, N.A., as a Lender
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: | Director |
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UBS Loan Finance, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director
Banking Products Services, US
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Director
Banking Products Services, US
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The Bank of New York Mellon, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
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BNP PARIBAS, as a Lender
By: /s/ Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxx
Title: | Director |
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: | Managing Director |
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DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
By: /s/ Xxxx X. Xxx
Name: Xxxx X. Xxx
Title: | Vice President |
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: | Vice President |
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