TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE OTHER
LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT.
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.
SECTION 8.12.
WAIVER OF JURY TRIAL.
EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES OR THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
58
SECTION 8.13.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL
REPRESENTATIONS AND WARRANTIES MADE HEREUNDER, IN THE OTHER LOAN DOCUMENTS AND
IN ANY DOCUMENT, CERTIFICATE OR STATEMENT DELIVERED PURSUANT HERETO OR IN
CONNECTION HEREWITH SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE NOTES AND THE MAKING OF THE LOANS HEREUNDER.
SECTION 8.14.
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT WHICH 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.
SECTION 8.15.
INTEGRATION.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE AGREEMENT OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF, AND THERE ARE NO
PROMISES, UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE ADMINISTRATIVE
AGENT OR ANY LENDER RELATIVE TO SUBJECT MATTER HEREOF OR THEREOF NOT EXPRESSLY
SET FORTH OR REFERRED TO HEREIN OR IN THE OTHER LOAN DOCUMENTS.
SECTION 8.16.
ACKNOWLEDGEMENT.
THE BORROWER HEREBY ACKNOWLEDGES THAT:
(A)
NEITHER THE ADMINISTRATIVE AGENT NOR ANY LENDER HAS ANY FIDUCIARY
RELATIONSHIP WITH OR DUTY TO THE BORROWER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND THE RELATIONSHIP BETWEEN
THE ADMINISTRATIVE AGENT AND THE LENDERS, ON THE ONE HAND, AND THE BORROWER, ON
THE OTHER HAND, IN CONNECTION HEREWITH OR THEREWITH IS SOLELY THAT OF CREDITOR
AND DEBTOR; AND
(B)
NO JOINT VENTURE IS CREATED HEREBY OR BY THE OTHER LOAN DOCUMENTS
OR OTHERWISE EXISTS BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED HEREBY BETWEEN
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER.
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
AQUILA, INC.
By
/s/ Randy Miller
Name:
Randy Miller
Title:
Vice President, Finance and Treasurer
60
Commitment
Lenders
Administrative Agent
$220,000,000
CREDIT SUISSE FIRST BOSTON, acting through its Cayman Islands Branch
By
/s/