View:
Form 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2002
or
[ ] TRANSITION REPORT PURSUANT SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission Registrant, State of Incorporation, I.R.S. Employer
File Number Address and Telephone Number Identification Number
0-33207 GREAT PLAINS ENERGY INCORPORATED 43-1916803
(A Missouri Corporation)
1201 Walnut Street
Kansas City, Missouri 64106
(816) 556-2200
1-707 KANSAS CITY POWER & LIGHT COMPANY 44-0308720
(A Missouri Corporation)
1201 Walnut Street
Kansas City, Missouri 64106
(816) 556-2200
Each of the following classes or series of securities registered pursuant to
Section 12(b) of the Act is registered on the New York Stock Exchange:
Exhibit 10.1.a.
CHUBB GROUP OF INSURANCE COMPANIES
15 Mountain View Road, P.O. Box 1615, Warren, New Jersey 07061-
1615
______________________________________________________________
GENERAL AGREEMENT OF INDEMNITY
WHEREAS, the undersigned (hereinafter individually and
collectively called "Indemnitor") desires FEDERAL INSURANCE
COMPANY or any of its subsidiary or affiliated insurers
(hereinafter called "Company") to execute bonds including
undertakings and other like obligations (hereinafter referred to
as bond or bonds) on its behalf or on behalf of any of its
subsidiaries or on behalf of any subsidiary or a subsidiary or
successive subsidiaries, direct or indirect, now existing or
hereafter created (hereinafter called "Subsidiaries") or on
behalf of any one or more of them and also desires the execution
of bonds on behalf of individuals, partnerships or corporations,
limited liability companies or any other similarly unincorporated
associations of members (hereinafter called "Affiliates").
WHEREAS, from time to time either the Indemnitor or one of more
of its Subsidiaries may be participant in joint ventures with
others, and bonds will be required on behalf of the Indemnitor or
one or more of its Subsidiaries along with the other participants
in such joint ventures.
NOW, THEREFORE, in consideration of the Company executing said
bond or bonds, and the undersigned Indemnitor hereby requests the
execution thereof, and in consideration of the sum of One Dollar
paid to the Indemnitor by said Company, the receipt whereof is
hereby acknowledged, the Indemnitor being benefited by the
execution and delivery of said bond or bonds, hereby agrees that
it will at all times jointly and severally indemnify and save
harmless said Company from and against any and all loss, damage
or expense, including court costs and attorneys' fees, which it
shall at any time incur by reason of its execution and/or
delivery of said bond or bonds or its payment of any claim or
liability thereunder and will place the said Company in funds to
meet all its liability under said bond or bonds promptly on
request and before it may be required to make any payment
thereunder and that the voucher or other evidence of payment by
said Company of any such loss, damage, expense, claim, or
liability shall be prima facie evidence of the fact and amount of
said Indemnitor's liability to said Company under this Agreement.
IT IS UNDERSTOOD AND AGREED that Indemnitor will, upon the
written request of the Company, promptly procure the full and
complete discharge of the Company from any bonds specified in
such request and all liability by reason thereof. If such full
and complete discharge is unattainable, the Indemnitor will, if
requested by the Company, promptly provide the Company an
irrevocable letter of credit acceptable to the Company, as
collateral, in an amount sufficient to cover all undischarged
liability under such specified bond or bonds, or promptly make
other provisions acceptable to the Company to fully collateralize
the aforesaid undischarged liability. Indemnitor further agrees
that, in the event of its breach of its obligation to
collateralize the undischarged liability under all specified
bonds, the Company will have no adequate remedy at law and shall
therefore be entitled to specific performance of the Indemnitor's
obligation to collateralize such undischarged liability. The
Company's failure to act to enforce its right to specific
performance hereunder shall not be construed as a waiver of that
right, which may be enforced at any time at the Company's sole
discretion.
IT IS UNDERSTOOD AND AGREED that with respect to any bonds on
behalf of Indemnitor, or any Subsidiary participating in a joint
venture that if specific application is filed with the Company
for such bonds the liability of the Indemnitor to the Company
with respect to such joint venture bonds shall be limited to the
amount expressly set forth in said application.
IT IS UNDERSTOOD AND AGREED that all of the terms, provisions,
and conditions of this Agreement shall be extended to and for the
benefit not only of the Company either as a direct writing
company or as a co-surety or reinsurer but also for the benefit
of any surety or insurance company or companies with which the
Company may participate as a co-surety or reinsurer and also for
the benefit of any other company which may execute any bond or
bonds at the request of the Company on behalf of Indemnitor or
any of its Subsidiaries or Affiliates.
IT IS FURTHER UNDERSTOOD AND AGREED that said Indemnitor, its
heirs, successors and assigns are jointly and severally bound by
the foregoing conditions of this Agreement.
IN WITNESS WHEREOF said Indemnitor has signed this instrument
under seal this 23rd day of May, 2002.
STRATEGIC ENERGY, L.L.C. (Seal) GREAT PLAINS ENERGY INC.(Seal)
By: /s/ Richard M. Zomnir By: /s/ Andrea F. Bielsker
_______________________________
By: ___________________________ ____________________________
Individually
_______________________________
By: ___________________________ ____________________________
Individually
_______________________________
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On May 23, 2002 before me Eileen L. Parson personally
appeared Richard M. Zomnir personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Eileen L. Parson (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On May 23, 2002 before me Eileen L. Parson personally
appeared Andrea F. Bielsker, Senior Vice President Finance, Chief
Financial Officer & Treasurer personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Eileen L. Parson (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On before me
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On before me
personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
Exhibit 10.1.b.
CHUBB GROUP OF INSURANCE COMPANIES
Surety Department, 15 Mountain View Road, P.O. Box 1615, Warren,
NJ 07061-1615
Phone: (908) 903-3485 * Facsimile: (908) 903-3656
- -----------------------------------------------------------------
FEDERAL INSURANCE COMPANY
AGREEMENT OF INDEMNITY
WHEREAS, application has been made to FEDERAL INSURANCE COMPANY,
or any of its subsidiary or affiliated insurers, of 15 Mountain
View Road, Warren, New Jersey (hereinafter called "Company"), to
continue as surety upon specific bonds described on the attached
Schedule A.
NOW, THEREFORE, in consideration of the Company having written
said bonds on behalf of Strategic Energy L.L.C., and the
undersigned (hereinafter individually and collectively called
"Indemnitor") acknowledges the release of KLT Inc. as indemnitor,
for all past, present and future liability, and in consideration
of the sum of One Dollar paid to the Indemnitor by said Company,
the receipt whereof is hereby acknowledged, the Indemnitor, being
substantially benefited by the continued existence of said bonds,
(and having either a direct or indirect financial interest in
said applicant), hereby agrees:
1. That the Indemnitor will at all times indemnify and save
harmless said Company from and against any and all loss,
cost, damage or expense, including court costs and
attorneys' fees, which it shall at any time incur, sustain
or incur
i. by reason of having executed or procured the
execution of said bonds,
ii. by reason of failure of the undersigned to
perform or comply with the covenants and conditions
of this agreement, or
iii. in enforcing any of the covenants and
conditions of this agreement,
and will place the said Company in funds to meet all its
liability under said bonds promptly on request and before it
may be required to make any payment thereunder. That the
voucher or other evidence of payment by said Company of any
such loss, cost, damage, expense, claim or liability shall
be prima facie evidence of the fact and amount of the
Indemnitor's liability to said Company under this Agreement;
2. That the Company may make or consent to any change or
alteration in said bonds and may execute renewals thereof or
other obligations in lieu thereof, or may consent or assent
to any change or alteration in any instrument, contract or
agreement concerned therewith, without notice to the
Indemnitor (notice being expressly waived) and, in such
case, the Indemnitor shall be liable to the Company fully
and to the same extent that the Company shall be liable
under such changed or altered bonds or such renewals thereof
or other obligations in lieu thereof;
3. That the Company shall have the exclusive right for itself
and for the Indemnitor to take charge of all matters arising
under said bonds and decide whether or not it is liable
thereunder and shall determine the amount of its liability
in case it decides that it is liable. It may settle or
compromise any claims and defend, settle or compromise any
suits and take such other action in connection with any
claim matter arising under said bonds as it may deem
advisable. Any such decision, determination, settlement,
defense, compromise or other action of the Company in
connection with any claim matter arising under said bonds
shall be final and conclusive and unconditionally binding
upon the Indemnitor;
4. That the Indemnitor and the heirs, legal representatives,
successors and assigns of the Indemnitor shall be and hereby
are jointly and severally bound by the foregoing provisions
of this Agreement, and that the liability of the Indemnitor
hereunder and of the heirs, legal representatives,
successors and assigns of the Indemnitor hereunder shall not
be dependent upon the proper execution of this Agreement or
any instrument herein referred to by any other Indemnitor or
by said applicant, and that if the Company procures any co-
surety on said bonds, and it is hereby authorized to do so,
this Agreement shall be deemed extended to and for the
benefit of said co-surety.
IT IS UNDERSTOOD AND AGREED that Indemnitor will, upon the
written request of the Company, promptly procure the full and
complete discharge of the Company from said bonds and all
liability by reason thereof. If such full and complete discharge
is unattainable, the Indemnitor will, if requested by the
Company, promptly provide the Company an irrevocable letter of
credit acceptable to the Company, as collateral, in an amount
sufficient to cover all undischarged liability under said bonds,
or promptly make other provisions acceptable to the Company to
fully collateralize the aforesaid undischarged liability.
Indemnitor further agrees that, in the event of its breach of its
obligation to collateralize the undischarged liability under said
bond, the Company will have no adequate remedy at law and shall
therefore be entitled to specific performance of the Indemnitor's
obligation to collateralize such undischarged liability. The
Company's failure to act to enforce its right to specific
performance hereunder shall not be construed as a waiver of that
right, which may be enforced at any time at the Company's sole
discretion.
IT IS FURTHER UNDERSTOOD AND AGREED that all of the terms,
provisions, and conditions of this Agreement shall be extended to
and for the benefit not only of the company either as a direct
writing company or as a co-surety or reinsurer but also for the
benefit of any surety or insurance company or companies with
which the Company may participate as a co-surety or reinsurer and
also for the benefit of any other company which may execute said
bond at the request of the Company.
IN WITNESS WHEREOF the Indemnitor has signed this Agreement this
23rd day of May, 2002.
STRATEGIC ENERGY, L.L.C. GREAT PLAINS ENERGY INC.
(seal) (seal)
By: /s/ Richard M. Zomnir By: /s/ Andrea F. Bielsker
Name and Title: Name and Title:
Richard M. Zomnir Andrea F. Bielsker
President & CEO Senior Vice President,
Finance Chief Financial
Officer & Treasurer
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On May 23, 2002 before me Eileen L. Parson personally
appeared Richard M. Zomnir personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Eileen L. Parson (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of Pennsylvania )
County of Allegheny )
On May 23, 2002 before me Eileen L. Parson personally
appeared Andrea F. Bielsker, Senior Vice President Finance, Chief
Financial Officer and Treasurer personally known to me (or proved
to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ Eileen L. Parson (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of ___________ )
County of___________ )
On before me personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: (Seal)
CERTIFICATE OF ACKNOWLEDGEMENT
State of ___________ )
County of __________ )
On before me personally appeared
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: (Seal)
Page 1
Exhibit 10.1.c
GUARANTY
This Guaranty, dated as of June 14, 2002, is made by Great
Plains Energy Incorporated (herein called "Guarantor"), a
Missouri corporation with its principal place of business located
at 1201 Walnut, Kansas City, Missouri 64106, in favor of El Paso
Merchant Energy, L.P. (herein called "Creditor") with its
principal place of business located at 1001 Louisiana, Houston,
Tx 77002.
Creditor and Strategic Energy, L.L.C., a Delaware limited
liability company and a related company of Guarantor (Guarantor
has an indirect ownership interest in Strategic Energy, L.L.C.),
with its principal place of business located at Two Gateway
Center, Pittsburgh, PA 15222, (herein called "Debtor") have
entered into or hereafter may enter into contracts, agreements or
commitments (i) for the sale, purchase, exchange, transmission or
transportation of electricity or (ii) which constitute or cover
swaps, options or other derivative transactions relative to
electricity or the price thereof (herein collectively called the
"Agreements"). In order to induce Creditor to extend or to
continue to extend credit to Debtor pursuant to the Agreements,
Guarantor has agreed to provide to Creditor this Guaranty and
acknowledges adequate consideration, including the fact that it
will benefit directly and/or indirectly from the Agreement, and
hereby further agrees as follows:
Section 1. Guaranty. Guarantor hereby unconditionally
guarantees the punctual and complete payment when due (whether at
stated maturity, by acceleration or otherwise), of any and all
indebtedness, liabilities, and obligations under the Agreements
of Debtor to Creditor now or hereafter existing, whether absolute
or contingent, joint and/or several, secured or unsecured, direct
or indirect (all such indebtedness, liabilities and obligations
are being herein collectively called the "Obligations"). This
Guaranty is a guarantee of payment and not of collection.
Guarantor acknowledges that it is jointly and severally liable
for payment of the Obligations.
Section 2. Demands. If Debtor fails or refuses to pay any
Obligations when due, and Creditor elects to exercise its rights
under this Guaranty, Creditor shall make a demand upon Guarantor
(hereinafter referred to as a "Payment Demand"). A Payment
Demand shall be in writing and shall reasonably and briefly
specify in what manner and what amount Debtor has failed to pay
and an explanation of why such payment is due, with a specific
statement that Creditor is calling upon Guarantor to pay under
this Guaranty. A Payment Demand satisfying the foregoing
requirements when delivered to Guarantor pursuant to Section 9 of
this Guaranty shall be the only requirement with respect to
Obligations before Guarantor is required to pay such Obligations
hereunder and shall be deemed sufficient notice to Guarantor that
it must pay the Obligations within ten (10) days after its
receipt of the Payment Demand. A single written Payment Demand
that complies with the terms of this Section 2 shall be effective
as to any specific failure to pay during the continuance of such
failure to pay, until Debtor or Guarantor has cured such failure
to pay, and additional written demands concerning such failure to
pay shall not be required until such failure to pay is cured.
Section 3. Guaranty Absolute. Creditor may, at any time
and from time to time, without the consent of or notice to
Guarantor, and without impairing, reducing, affecting or
releasing the Obligations of Guarantor hereunder:
(a) change the manner, place or terms of payment of,
or renew, extend or alter, any or all of the Obligations;
(b) amend, waive, terminate or otherwise modify,
alter, extend or supplement, any document or agreement
relating to any of the Obligations;
(c) release the Debtor or any other person liable in
any manner for payment of any or all of the Obligations;
(d) take, substitute, surrender, exchange or release
any collateral for any or all of the Obligations; or
(e) except as to applicable statutes of limitation,
exercise or refrain from exercising any rights against
Debtor or any other person or otherwise act or refrain from
acting or otherwise fail to be diligent.
Section 4. Waiver. Except with respect to the limited
terms and conditions otherwise provided in Sections 2, 7 or 10
hereof, Guarantor hereby waives:
(a) notice of acceptance of this Guaranty, of the
creation and/or existence of any of the Agreements or
Obligations, and of any action by Creditor in reliance
hereon or in connection herewith;
(b) promptness, diligence, presentment, demand for
payment, notice of dishonor or nonpayment, protest and
notice of protest with respect to the Obligations;
(c) any requirement that suit be brought against, or
any other action by Creditor be taken against, or any notice
of default or other notice be given to, or any demand be
made on, the Debtor or any other person, or that any other
action be taken or not taken as a condition to Guarantor's
obligations under this Guaranty or as a condition to
enforcement of this Guaranty against Guarantor, and
(d) all other notices.
Section 5. Effect of Certain Events. Guarantor agrees that
Guarantor's liability hereunder will not be released, reduced,
affected or impaired by the occurrence of any one or more of the
following events:
(a) The liquidation, dissolution, assignment for the
benefit of creditors, insolvency, bankruptcy,
reorganization, release, merger, receivership or discharge
of Debtor, or the arrangement, composition or readjustment
or other similar proceeding affecting the status,
composition, identity, existence, assets or obligations of
Debtor, or the disaffirmance or termination of any of the
Obligations or Agreements in or as a result of any such
proceeding;
(b) The renewal, consolidation, extension,
modification, supplementation, termination or amendment from
time to time of any of the Agreements that might otherwise
affect the Obligations;
(c) Except as to applicable statutes of limitation,
the failure, delay, lack of diligence, waiver or refusal by
Creditor to exercise, in whole or part, any right or remedy
held by Creditor with respect to the Agreements or the
Obligations;
(d) The sale, encumbrance, transfer or other
modification of the ownership of Debtor or the change in the
financial condition or management of Debtor;
(e) Lack of consideration or any other deficiency in
the formation of the Agreement and any and all amendments
and modifications thereof;
(f) Lack of organizational power or authority of
Guarantor or Debtor; or
(g) Any changes to the ownership of the Debtor or its
asset structure, including but not limited to sale, merger,
acquisition, encumbrance, lien, hypothecation or otherwise.
Section 6. Representations and Warranties. Guarantor
hereby represents and warrants to Creditor as follows:
(a) Guarantor is a corporation, duly organized,
validly existing and in good standing under the laws of the
state of its organization, and is duly qualified and in good
standing in each jurisdiction where the nature of its
business or the character of the assets and properties owned
or held under lease by it requires such qualification,
except where the failure to so quality could not reasonably
be expected to have a material adverse effect on Guarantor.
Guarantor has all requisite power and authority,
organizational or otherwise, to conduct in all material
respects its business and to own, or hold under lease, its
material assets or properties and to execute and deliver,
and perform all of its obligations under this Guaranty;
(b) The execution, delivery and performance by
Guarantor of this Guaranty are within the Guarantor's
organizational powers, have been duly authorized by all
necessary corporate action and do not contravene the
organizing documents of Guarantor or any law or material
contractual restriction binding on or affecting Guarantor;
(c) This Guaranty is the legal, valid and binding
obligation of Guarantor enforceable against the Guarantor in
accordance with its terms except as the enforceability of
this Guaranty may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors rights generally and by
general principles of equity; and
(d) Debtor is a majority-owned indirect subsidiary of
Guarantor and Guarantor will benefit, directly or
indirectly, from the Guaranty granted hereby.
Section 7. Setoffs and Counterclaims. Without limiting
Guarantor's own defenses and rights hereunder, Guarantor reserves
to itself all rights, setoffs, counterclaims and other defenses
to which Debtor or any other affiliate of Guarantor is or may be
entitled to, relating to or arising from or out of the Agreements
or otherwise, except for defenses relating to, arising from or
out of the bankruptcy, insolvency, dissolution or liquidation of
Debtor.
Section 8. Amendments, etc. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by
Guarantor therefrom shall in any event be effective unless the
same shall be in writing and signed by Creditor, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 9. Addresses for Notices. All notices and other
communications provided for hereunder shall (i) be in writing and
shall be addressed to the parties at their respective addresses
set forth above or at such other addresses as shall be designated
in a written notice to the other party and (ii) except as
otherwise provided herein, when mailed, be effective five days
after being deposited in the U.S. mail, registered or certified
mail, return receipt requested, postage prepaid, and, in the case
of personal delivery, when delivered at the aforesaid address.
Notwithstanding anything herein to the contrary, any notice of
termination provided by Guarantor to Creditor shall be
transmitted to Creditor only by certified mail, return receipt
requested.
Section 10. No Waiver; Remedies. Except as to applicable
statutes of limitation or repose, no failure on the part of
Creditor to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
Section 11. Continuing Guaranty; Termination. This
Guaranty is an absolute and continuing guaranty, except as
specifically set forth herein. This Guaranty shall terminate on
the first to occur of (a) thirty (30) days after Creditor
receives written notice from Guarantor of such termination, and
(b) June 30, 2003 (the "Termination Date"). From and after the
Termination Date, Guarantor shall have no liability whatsoever
for any Obligations created or incurred after the Termination
Date, but no such termination of this Guaranty shall affect
Guarantor's obligations hereunder for any Obligations created or
incurred on or before the Termination Date. Notwithstanding
anything to the contrary herein, this Guaranty shall continue to
be effective or reinstated, as the case may be, if at any time
payment, or any part thereof, for any of the Obligations created,
incurred or otherwise contracted for on or before the Termination
Date, is rescinded or must otherwise be returned by Creditor upon
the insolvency, bankruptcy or reorganization of Debtor, or
otherwise under applicable law or at equity, all as though such
payment had not been made. Guarantor's obligations hereunder may
not be assigned without Creditor's written consent. This
Guaranty shall be binding upon Guarantor, its successors and
assigns, and shall inure to the benefit of and be enforceable by
Creditor and its successors and assigns.
Section 12. Governing Law. This Guaranty and the rights
and obligations of the parties hereunder shall be governed by and
construed in accordance with the laws of the State of Texas,
without reference to conflict of laws principles of said state.
Section 13. Additional Events of Default. Notwithstanding
anything to the contrary in any document or agreement now or
hereafter existing between Creditor and Debtor, Guarantor agrees
that, solely for the purposes of this Guaranty, the Obligations
of Debtor shall, whether or not then due under any such document
or agreement, automatically be deemed and become immediately due
and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by Guarantor, upon
the occurrence of any of the following events: (i) Guarantor or
Debtor shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy" as now
or hereafter in effect, or any successor thereto (the "Bankruptcy
Code"); (ii) an involuntary case is commenced against Guarantor
or Debtor, and the petition is not controverted within ten days,
or is not dismissed within sixty days, after commencement of the
case; (iii) a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of
the property of Guarantor or Debtor; (iv) Guarantor or Debtor
commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to it or there is
commenced against Guarantor or Debtor any such proceeding which
remains undismissed for a period of sixty days or any order of
relief or other order approving any such case or proceeding is
entered; (v) Guarantor or Debtor is adjudicated insolvent or
bankrupt; (vi) Guarantor or Debtor suffers any appointment of any
custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of
sixty days; (vii) Guarantor or Debtor makes a general assignment
for the benefit of creditors; (viii) any organizational action is
taken by Guarantor or Debtor for the purpose of effecting any of
the foregoing; or (ix) any representation or warranty made by
Guarantor herein shall prove to be untrue in any material respect
on the date as of which made.
Section 14. Severability. If any provision of this
Guaranty or the application thereof to any party or circumstance
shall be invalid or unenforceable, then the remaining provisions
or the application of such provision to parties or circumstances
other than those as to which it is invalid or unenforceable,
shall continue to be valid and enforceable.
Section 15. Limitation on Guarantor's Liability.
Notwithstanding anything herein to the contrary, the liability of
Guarantor under this Guaranty shall be limited to the following:
(a) Guarantor's liability hereunder shall be and is
specifically limited to payments expressly required to be
made by Debtor under the Agreements, and to the extent that
they have been expressly disclaimed under such Agreements
Guarantor shall not be liable or otherwise subject hereunder
to any indirect, special, incidental, consequential,
exemplary, punitive or tort damages; and
(b) Guarantor's aggregate liability to Creditor under
this Guaranty is limited to and shall not exceed Twenty
Million Five Hundred Thousand Dollars ($20,500,000.00).
Section 16. Entire Agreement. This Guaranty embodies the
entire agreement and understanding between Guarantor and Creditor
and supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. The
headings in this Guaranty are for purposes of reference only, and
shall not affect the meaning hereof.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
duly executed and delivered by its duly authorized officer as of
the date first above written.
GREAT PLAINS ENERGY INCORPORATED
By: /s/ Andrea F. Bielsker
Name: Andrea F. Bielsker
Title: Senior VP Finance, Chief
Financial Officer & Treasurer
Exhibit 10.1.d
LINE OF CREDIT AGREEMENT
THIS LINE OF CREDIT AGREEMENT (this "Agreement"), dated as of
June 14, 2002, is between GREAT PLAINS ENERGY INCORPORATED, a
Missouri corporation (herein called the "Company"), and LASALLE
BANK NATIONAL ASSOCIATION (herein called the "Bank").
On the terms and subject to the conditions set forth in this
Agreement, the Bank hereby agrees to make Advances to the
Company, from time to time on any Business Day falling during the
period from the date hereof to June 13, 2003, (the "Commitment
Termination Date"), in such amounts as the Company may from time
to time request but not exceeding $20,000,000 in aggregate
principal amount (the "Commitment Amount") at any one time
outstanding. Subject to the terms hereof, the Company may from
time to time borrow, prepay and (before the Commitment
Termination Date) reborrow Advances made pursuant to this
Agreement.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the meanings indicated for purposes of
this Agreement and the Note (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Advance" means a borrowing hereunder (or conversion or
continuation thereof) consisting of the aggregate amount of the
several loans made on the same Borrowing Date (or date of
conversion or continuation) by the Bank to the Borrower of the
same Type and, in the case of Eurodollar Advances, for the same
Interest Period.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of the Federal Funds Effective Rate for such day
plus 1/2% per annum.
"Applicable Margin" means, with respect to Advances of any
Type at any time, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type as
set forth in the Pricing Schedule.
"Attributable Indebtedness" means, on any date, (a) in
respect of any Capitalized Lease Obligation of any Person, the
capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the
relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP is such
lease were accounted for as a Capitalized Lease.
"Authorized Officer" means any officer or employee
designated by the Company from time to time in an incumbency
certificate, which certificate shall become effective when
received by the Bank.
"Borrower" means Great Plains Energy Incorporated, a
Missouri corporation, and it's permitted successors and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in
Chicago and New York for the conduct of substantially all of
their commercial lending activities and on which dealings in
United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago
for the conduct of substantially all of their commercial lending
activities.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"Consolidated EBITDA" means, for any period, for the
Borrower and its Consolidated Subsidiaries, an amount equal to
the result of (i) Consolidated Net Income plus (ii) Consolidated
Interest Charges plus (iii) the amount of taxes, based on or
measured by income, used or included in the determination of such
Consolidated Net Income plus (iv) the amount of depreciation and
amortization expense deducted in determining such Consolidated
Net Income plus (v) all other non-cash items that reduce
Consolidated Net Income for such period minus (vi) all non-cash
items that increase Consolidated Net Income for such period.
"Consolidated Interest Charges" means, for the Borrower and
its Consolidated Subsidiaries for any period, the sum of (i) all
interest, premium payments, fees, charges and related expenses of
the Borrower and its Consolidated Subsidiaries in connection with
borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, and (ii) the
portion of rent expense of the Borrower and its Consolidated
Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP. It is
understood and agreed that Consolidated Interest Charges shall
not include any obligations of the Borrower or any Consolidated
Subsidiary with respect to subordinated, deferrable interest debt
securities, and any related securities issued by a trust or other
special purpose entity in connection therewith, as long as the
maturity date of such debt securities is subsequent to the
scheduled Commitment Termination Date.
"Consolidated Net Income" means, for any period, for the
Borrower and its Consolidated Subsidiaries, the net income of the
Borrower and its Consolidated Subsidiaries from continuing
operations, excluding extraordinary items for that period.
"Consolidated Subsidiaries" means, as to any Person, each
Subsidiary of such Person (whether now existing or hereafter
created or acquired) the financial statements of which shall be
(or should have been) consolidated with the financial statements
of such Person in accordance with GAAP.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently
liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any
creditor of such other Person against loss.
"DTI Company" means any of DTI Holdings, Inc. and any of its
Subsidiaries.
"Eurodollar Advance" means an Advance which bears interest
at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the applicable British
Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest
Period; provided that, (i) if Reuters Screen FRBD is not
available to the Bank for any reason, the applicable Eurodollar
Base Rate for the relevant Interest Period shall instead be the
applicable British Bankers' Association Interest Settlement Rate
for deposits in U.S. dollars as reported by any other generally
recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, and
(ii) if no such British Bankers' Association Interest Settlement
Rate is available to the Bank, the applicable Eurodollar Base
Rate for the relevant Interest Period shall instead be the rate
determined by the Bank to be the rate at which the Bank offers to
place deposits in U.S. dollars with first-class banks in the
London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period,
in the approximate amount of the Bank's relevant Eurodollar Loan
and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a loan which bears interest at the
applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance or Eurodollar Loan for the relevant Interest Period, the
sum of (i) the quotient of (a) the Eurodollar Base Rate
applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin. The Eurodollar
Rate shall be rounded to the next higher multiple of 1/16 of 1%
if the rate is not such a multiple.
"Facility Fee Rate" means, at any time, the percentage rate
per annum at which facility fees are accruing at such time as set
forth in the Pricing Schedule.
"Federal Funds Effective Rate" means, for any date, an
interest rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such
day, as published for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations at approximately 10:00 a.m. (Chicago time) on such day
on such transactions received by the Bank from three Federal
funds brokers of recognized standing selected by the Bank in its
sole discretion.
"Floating Rate" means, for any day, a rate per annum equal
to the sum of (i) the Alternate Base Rate for such day plus (ii)
the Applicable Margin, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears
interest at the Floating Rate.
"Floating Rate Loan" means a loan which bears interest at
the Floating Rate.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements of the Financial
Accounting Standards Board.
"Indebtedness" means, as to any Person at a particular time,
all of the following, without duplication, to the extent recourse
may be had to the assets or properties of such Person in respect
thereof: (i) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar instruments;
(ii) any direct or contingent obligations of such Person in the
aggregate in excess of $2,000,000 arising under letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, surety bonds and similar instruments; (iii) net
obligations of such Person under Swap Contracts; (iv) all
obligations of such Person to pay the deferred purchase price of
property or services except trade accounts payable arising, and
accrued expenses incurred, in the ordinary course of business),
and indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(v) Capitalized Lease Obligations and Synthetic Lease Obligations
of such Person; and (vi) all Contingent Obligations of such
Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint
venturer, unless such Indebtedness is non-recourse to such
Person. It is understood and agreed that Indebtedness (including
Contingent Obligations) shall not include any obligations of the
Borrower with respect to subordinated, deferrable interest debt
securities, and any related securities issued by a trust or other
special purpose entity in connection therewith, as long as the
maturity date of such debt is subsequent to the scheduled
Commitment Termination Date; provided that the amount of
mandatory principal amortization or defeasance of such debt prior
to the scheduled Commitment Termination Date shall be included in
this definition of Indebtedness. The amount of any Capitalized
Lease Obligation or Synthetic Lease Obligation as of any date
shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.
"Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on
a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six
months thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third, or sixth
succeeding month. If an Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall end
on the next succeeding Business Day; provided, however, that if
said next succeeding Business Day falls in a new calendar month,
such Interest Period shall end on the immediately preceding
Business Day.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Moody's" means Moody's Investors Service, Inc.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Pricing Schedule" means the schedule attached hereto
identified as such.
"Prime Rate" means a rate per annum equal to the prime rate
of interest announced by the Bank from time to time (which is not
necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes.
"Project Finance Subsidiary" means any Subsidiary that meets
the following requirements: (i) it is primarily engaged, directly
or indirectly, in the ownership, operation and/or financing of
independent power production and related facilities and assets;
and (ii) neither the Borrower nor any other Subsidiary (other
than another Project Finance Subsidiary) has any liability,
contingent or otherwise, for the Indebtedness or other
obligations of such Subsidiary (other than non-recourse liability
resulting from the pledge of stock of such Subsidiary).
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person.
"Regulatory Change" means the introduction of, or any change
in any applicable law, treaty, rule, regulation or guideline or
in the interpretation or administration thereof by any
governmental authority or any central bank or other fiscal,
monetary or other authority having jurisdiction over the Bank or
its lending office.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
"Shareholders' Equity" means, as of any date of
determination for the Borrower and its Consolidated Subsidiaries
on a consolidated basis, shareholders equity as of that date
determined in accordance with GAAP.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, or (ii)
any partnership, limited liability company, association, join
venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall
at the time be so owned or controlled; provided that no DTI
Company will be considered a Subsidiary of the Borrower for
purposes of this Agreement. Unless otherwise expressly provided,
all references herein to a "Subsidiary" shall mean a Subsidiary
of the Borrower.
"Swap Contract" means (i) any and all rate swap
transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transaction, floor transactions, collar
transactions, currency swap transactions, cross-currency rate
swap transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by a subject to
any master agreement, and (ii) any and all transactions of any
kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives
Association, Inc. any International Foreign Exchange Master
Agreement, or any other master agreement (any master agreement,
together with any related schedules, a "Master Agreement"),
including any such obligations or liabilities under any Master
Agreement.
"Synthetic Lease Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic or off-balance sheet
or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on
the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting
treatment).
"Total Capitalization" means Total Indebtedness of the
Borrower and its Consolidated Subsidiaries plus the sum of (i)
Shareholder's Equity and (ii) to the extent not otherwise
included in Indebtedness or Shareholder's Equity, preferred and
preference stock and securities of the Borrower and its
Subsidiaries included in a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries in accordance with
GAAP.
"Total Indebtedness" means all Indebtedness of the Borrower
and its Consolidated Subsidiaries on a consolidated basis,
excluding (i) Indebtedness arising under Swap Contracts entered
into in the ordinary course of business to hedge bona fide
transactions and business risks and not for speculation, (ii)
Indebtedness of Project Finance Subsidiaries, (iii) Contingent
Obligations incurred after May 15, 1996 with respect to
Indebtedness of Strategic Energy, L.L.C. in an aggregate amount
not exceeding $275,000,000 and (iv) Indebtedness of KLT
Investments Inc. incurred in connection with the acquisition and
maintenance of its interests (whether direct or indirect) in low
income housing projects.
"Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or a Eurodollar Advance.
"Utilization Fee Rate" means, at any time, the percentage
rate per annum at which utilization fees are accruing at such
time as set forth in the Pricing Schedule.
All Advances shall be evidenced by a single promissory note of
the Company (herein called the "Note") in substantially the form
of Exhibit A hereto. The Company hereby irrevocably authorizes
the Bank to make (or cause to be made) appropriate notations on
the grid attached to the Note (or on any continuation of such
grid) which notations, if made, shall evidence (among other
things) the date of, the outstanding principal of, and the
interest rate applicable to, the Advances evidenced thereby.
Such notations shall be conclusive and binding on the Company
absent manifest error; provided, however, that failure to record
any such notations shall not limit or otherwise affect the
Company's obligations hereunder or under the Note to make
payments of principal of or interest on the Advances when due.
A Floating Rate Advance may be made on any Business Day falling
before the Commitment Termination Date upon prior written or
telephonic request (promptly confirmed in writing) from any of
the Company's Authorized Officers received by the Bank prior to
2:00 pm, Chicago time, on such Business Day. Each such request
shall specify (i) the Borrowing Date (which shall be a Business
Day), (ii) the amount of such Floating Rate Advance and (iii)the
interest rate applicable to such Advance. Each Floating Rate
Advance shall mature and shall become due and payable on the
Commitment Termination Date.
Any of the Company's Authorized Officers may, on any Business
Day, request and receive, by telephone, a quotation of the
Eurodollar Rate that would be applicable to a Eurodollar Rate
Advance; provided, however, that the Bank shall be obligated to
make a Eurodollar Rate Advance at such Eurodollar Rate only upon
prior written or telephonic request (promptly confirmed in
writing) from an Authorized Officer received no later than 11:00
a.m., Chicago time, on such Business Day. Each such request for
a Eurodollar Rate Advance shall specify (i) the Borrowing Date
(which shall be at least three Business Days after the Business
Day on which the quotation of the Eurodollar Rate was made), (ii)
the principal amount of such Advance, (iii) the interest rate
applicable to such Advance and (iv) the period of such Advance
(which shall be the period specified when the Company sought a
quotation of the Eurodollar Rate). Each Eurodollar Rate Advance
shall mature and shall become due and payable on the last day of
its applicable Interest Period.
Interest on (i) Eurodollar Rate Advances and all fees will be
calculated on the basis of a 360 day year for actual number of
days elapsed and (ii) Floating Rate Advances will be calculated
on the basis of a 365 or 366 day year for the actual number of
days elapsed. Interest accrued on each Floating Rate Advance
shall be payable quarterly, in arrears, on the Commitment
Termination Date and on the date of any prepayment of such
Advance (on the principal amount prepaid). Interest accrued on
each Eurodollar Advance shall be payable on the maturity date for
such Advance, on the date of any prepayment of such Advance and,
for any Eurodollar Advance having an Interest Period longer than
three months on the last day of each three-month interval during
such Interest Period. The Company shall have the right to prepay
any Floating Rate Advance in whole or in part at any time without
premium or penalty. No Eurodollar Rate Advance may be repaid
prior to its maturity date without the Bank's prior written
consent.
If the Bank determines in good faith (which determination shall
be conclusive, absent manifest error) prior to the commencement
of any Interest Period that (i) United States dollar deposits of
sufficient amount and maturity for funding any Eurodollar
Advances are not available to the Bank in the London Interbank
Eurodollar market in the ordinary course of business, or (ii) by
reason of circumstances affecting the London Interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
rate of interest to be applicable to the relevant Eurodollar
Advance, the Bank shall promptly notify the Company thereof and,
so long as the foregoing conditions continue, Advances may not be
advanced as a Eurodollar Advance thereafter. In addition, at the
Company's option, each existing Eurodollar Advance shall be
immediately (i) converted to a Floating Rate Advance on the last
Business Day of the then existing Interest Period, or (ii) due
and payable on the last Business Day of the then existing
Interest Period, without further demand, presentment, protest or
notice of any kind, all of which are hereby waived by the
Company.
In addition, if, after the date hereof, a Regulatory Change
shall, in the reasonable determination of the Bank, make it
unlawful for the Bank to make or maintain the Eurodollar
Advances, then the Bank shall promptly notify the Company and
Advances may not be advanced as a Eurodollar Advance thereafter.
In addition, at the Company's option, each existing Eurodollar
Advance shall be immediately (i) converted to a Floating Rate
Advance on the last Business Day of the then existing Interest
Period or on such earlier date as required by law, or (ii) due
and payable on the last Business Day of the then existing
Interest Period or on such earlier date as required by law, all
without further demand, presentment, protest or notice of any
kind, all of which are hereby waived by the Company.
If any Regulatory Change (whether or not having the force of law)
shall (a) impose, modify or deem applicable any assessment,
reserve, special deposit or similar requirement against assets
held by, or deposits in or for the account of or loans by, or any
other acquisition of funds or disbursements by, the Bank; (b)
subject the Bank or any Eurodollar Advance to any tax, duty,
charge, stamp tax or fee or change the basis of taxation of
payments to the Bank of principal or interest due from the
Company to the Bank hereunder (other than a change in the
taxation of the overall net income of the Bank); or (c) impose
on the Bank any other condition regarding such Eurodollar Advance
or the Bank's funding thereof, and the Bank shall determine
(which determination shall be conclusive, absent manifest error)
that the result of the foregoing is to increase the cost to the
Bank of making or maintaining such Eurodollar Advance or to
reduce the amount of principal or interest received by the Bank
hereunder, then the Company shall pay to the Bank, on demand,
such additional amounts as the Bank shall, from time to time,
determine are sufficient to compensate and indemnify the Bank for
such increased cost or reduced amount.
Advances, renewals, or payments hereunder shall be made in
immediately available funds at the principal banking office of
the Bank.
The Company hereby authorizes the Bank to rely upon the telephone
or written instructions of any person identifying himself or
herself as an Authorized Officer and upon any signature which the
Bank reasonably believes to be genuine, and the Company shall be
bound thereby in the same manner as if such person were
authorized or such signature were genuine.
In consideration of the Bank's commitment to lend hereunder, the
Company agrees to pay (i) on or as of the date hereof, an upfront
fee equal to 0.150% of the Commitment Amount; (ii) a facility fee
at a per annum rate equal to the Facility Fee Rate (regardless of
usage) on the Commitment Amount and (iii) for any date on which
the Advances outstanding exceed 33% of the Commitment Amount, a
utilization fee at a per annum rate equal to the Utilization Fee
Rate on outstanding Advances. The facility fee and utilization
fee shall accrue during the period commencing with and including
the date hereof and ending on and including the last day this
Agreement is in effect. The facility fee and utilization fee
shall be payable in arrears on the last Business Day of each
calendar quarter, commencing June 30, 2002, and on the Commitment
Termination Date.
The obligation of the Bank to make Advances hereunder is subject
to the satisfaction of the following conditions precedent:
1. At or before the making of the initial Advance
hereunder, the Company shall furnish the Bank with (i)
certified copies of resolutions of the Board of
Directors of the Company authorizing or ratifying and
approving the execution and delivery of this Agreement
and future borrowings hereunder and the execution and
delivery of the Note; (ii) a certificate of its
secretary or assistant secretary as to the incumbency
and signatures of those of its officers authorized to
act with respect to this Agreement and the Note; (iii)
an opinion of counsel for the Company, satisfactory in
form and substance to the Bank, to the effect (among
other things specified by the Bank) that the Company is
a corporation duly organized and existing under the
laws of Missouri and in good standing, that the making
and performance of this Agreement and the Note have
been duly authorized by all necessary corporate action,
that all necessary governmental and regulatory
approvals have been obtained, and that, upon the
execution and delivery of the Note, this Agreement and
the Note will constitute legal, valid and binding
obligations of the Company, enforceable in accordance
with their respective terms under the laws of the State
of Missouri; and (iv) such additional documents or
information as the Bank may reasonably request.
2. At the time of the making of the initial Advance,
and each subsequent Advance hereunder, the Company
shall, upon request, furnish the Bank with a
certificate signed by a Vice President of the Company,
together with the Treasurer or an Assistant Treasurer
of the Company, it being agreed by the Company that
each such signatory shall be an Authorized Officer, to
the effect that: such Advance will not contravene any
provision of law, the Company's Articles of
Consolidation or By-Laws, or any indenture, agreement,
or instrument to which the Company is a party or by
which the Company or its property may be bound or
affected; and no event of default, or event which with
notice or lapse of time or both would become an event
of default, shall have occurred and be continuing or
shall result from the making of such Advance.
Each of the following shall constitute an event of default under
this Agreement:
A. The Company shall fail (i) to pay when due any principal of
or interest on any
Advance or (ii) to comply with any other term of this
Agreement, and such failure shall have continued for a
period of 30 days or more after notice thereof by the
Bank to the Company;
B. An event of default shall occur with respect to any other
indebtedness of the
Company for borrowed money and shall have continued for
a period of time sufficient to entitle the holder of
such indebtedness to accelerate the maturity or
otherwise enforce the payment thereof and such holder
has asserted this right to accelerate payment;
C. The Company becomes insolvent or admits in writing its
inability to pay its
debts as they mature or is adjudicated a bankrupt or
insolvent; or the Company applies for, consents to, or
acquiesces in the appointment of, a trustee or receiver
for the Company or any property thereof, or makes a
general assignment for the benefit of creditors; or in
the absence of such application, consent or
acquiescence, a trustee or receiver is appointed for
the Company or for a substantial part of the property
thereof, and is not discharged within 30 days; or any
bankruptcy, reorganization, debt arrangement, or other
proceeding under any bankruptcy or insolvency law, or
any dissolution or liquidation proceeding, is
instituted by or against the Company and if instituted
against the Company is consented to or acquiesced in by
the Company or remains for 30 days undismissed;
D. Any representation, warranty, or certificate made by or on
behalf of the
Company to the Bank shall prove to have been incorrect
or misleading in any material respect when made;
E. As of the end of each of its fiscal quarters, Borrower fails
to maintain a
ratio of (a) Consolidated EBITDA for the period of the
four prior fiscal quarters ending on such date to (b)
Consolidated Interest Charges during such period of not
less than 2.0 to 1.0;
F. As of the end of each of its fiscal quarters, the Borrower
fails to cause the
ratio of (i) Total Indebtedness to (ii) Total
Capitalization to be less than or equal to 0.65 to
1.00.
If any event of default described in clause A, B, D, E or F above
shall occur and be continuing, the Bank may declare its
commitment to make Advances to be terminated and declare the
principal of, and all interest then accrued on, the Note to be
forthwith due and payable, whereupon such commitment shall
terminate and all Advances and all interest then accrued thereon
shall immediately become due and payable, all without notice,
protest, or demand of any kind. The Bank shall promptly advise
the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. If an event of
default described in clause C above shall occur, the Bank's
commitment to make Advances shall immediately terminate and each
Advance and all accrued interest thereon shall become immediately
due and payable, all without notice, protest, or demand of any
kind.
This Agreement shall be governed by and construed in accordance
with the internal law of the State of Missouri, shall be deemed
to have been executed in the State of Missouri, shall bind the
Company and its successors and assigns, and shall inure to the
benefit of the Bank and its successors and assigns. The Company
agrees to pay upon demand all expenses (including attorneys' fees
and legal costs and expenses) incurred or paid by the Bank or any
holder hereof in connection with the enforcement or preservation
of its rights hereunder. The Company irrevocably waives
presentment, protest, demand and notice of any kind in connection
herewith.
IN WITNESS WHEREOF, the Company and the Bank have executed
this Agreement as of the date first above written.
GREAT PLAINS ENERGY INCORPORATED
By: /s/ Andrea F. Bielsker
Title: Senior Vice President - Finance,
Chief Financial Officer & Treasurer
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Denis Campbell IV
Title: Senior Vice President
Exhibit 99.1.a
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of
Great Plains Energy Incorporated (the "Company") for the
quarterly period ended June 30, 2002, as filed with the
Securities and Exchange Commission on the date hereof (the
"Report"), Bernard J. Beaudoin, as Chairman of the Board,
President and Chief Executive Officer of the Company, and
Andrea F. Bielsker, as Senior Vice President - Finance, Chief
Financial Officer and Treasurer of the Company, each hereby
certifies, pursuant to 18 U.S.C. (Section symbol) 1350, as
adopted pursuant to 906 of the Sarbanes-Oxley Act of 2002,
that, to the best of his or her knowledge:
(1) The Report fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934;
and
(2) The information contained in the Report fairly
presents, in all material respects, the financial condition and
results of operations of the Company.
/s/Bernard J. Beaudoin
Bernard J. Beaudoin
Chairman of the Board, President
and Chief Executive Officer
Date: August 12, 2002
/s/Andrea F. Bielsker
Andrea F. Bielsker
Senior Vice President - Finance,
Chief Financial Officer and
Treasurer
Date: August 12, 2002
This certification accompanies the Report pursuant to
(Section symbol) 906 of the Sarbanes-Oxley Act of 2002 and
shall not, except to the extent required by the Sarbanes-Oxley
Act of 2002, be deemed filed by the Company for purposes of
(Section symbol) 18 of the Securities Exchange Act of 1934,
as amended.
Exhibit 99.2.a
Certification of CEO and CFO Pursuant to
18 U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Quarterly Report on Form 10-Q of
Kansas City Power & Light Company (the "Company") for the
quarterly period ended June 30, 2002, as filed with the
Securities and Exchange Commission on the date hereof (the
"Report"), Bernard J. Beaudoin, as Chairman of the Board and
Chief Executive Officer of the Company, and Andrea F. Bielsker,
as Senior Vice President - Finance, Chief Financial Officer and
Treasurer of the Company, each hereby certifies, pursuant to 18
U.S.C. (Section symbol) 1350, as adopted pursuant to (Section symbol)
906 of the Sarbanes-Oxley Act of 2002, that, to the best of his
or her knowledge:
(1) The Report fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934;
and
(2) The information contained in the Report fairly
presents, in all material respects, the financial condition and
results of operations of the Company.
/s/Bernard J. Beaudoin
Bernard J. Beaudoin
Chairman of the Board, President
and Chief Executive Officer
Date: August 12, 2002
/s/Andrea F. Bielsker
Andrea F. Bielsker
Senior Vice President - Finance,
Chief Financial Officer and
Treasurer
Date: August 12, 2002
This certification accompanies the Report pursuant to
(Section symbol) 906 of the Sarbanes-Oxley Act of 2002 and
shall not, except to the extent required by the Sarbanes-Oxley
Act of 2002, be deemed filed by the Company for purposes of
(Section symbol) 18 of the Securities Exchange Act of 1934,
as amended.