DEALER MANAGER AGREEMENT
June 2005
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
- 1.
- The Exchange Offer. AQUILA, INC., a Delaware corporation (the "Company"), proposes to offer additional shares (hereinafter referred to, together with any amendments, supplements or extensions thereof, as the "Exchange Offer") of its common stock, par value $1 per share (the "Additional Securities"), to the holders of its issued and outstanding Premium Income Equity SecuritiesSM ("PIESSM") representing $345,000,000 aggregate principal amount of its Mandatorily Convertible Senior Notes (the "Existing Securities") who agree to exercise their early conversion rights on the terms and subject to the conditions set forth in the Exchange Offer Material (as hereinafter defined). The Additional Securities, together with the shares of the Company's common stock, par value $1 per share, to be issued upon the conversion of the Existing Securities pursuant to the Exchange Offer, are referred to herein as the "New Securities."
- 2.
- Appointment as Dealer Manager. The Company hereby appoints you as Dealer Manager (the "Dealer Manager") and authorizes you to act as such in connection with the Exchange Offer. On the basis of the representations, warranties and covenants of the Company contained herein, you agree, in accordance with your customary practice, to perform those services in connection with the Exchange Offer as are customarily performed by investment banks in connection with exchange offers of a like nature, including, but not limited to, using reasonable efforts to solicit tenders of Existing Securities pursuant to the Exchange Offer and communicating generally regarding the Exchange Offer with brokers, dealers, commercial banks and trust companies and other holders of Existing Securities. In such capacity, you shall act as an independent contractor, and each of your duties arising out of your engagement pursuant to this Agreement shall be owed solely to the Company.
The Company further authorizes you to communicate with The Depository Trust Company, in its capacity as depositary (the "Depositary"), with Union Bank of California, N.A., in its capacity as exchange agent (the "Exchange Agent") and with The Altman Group, Inc., in its capacity as information agent (the "Information Agent"), with respect to matters relating to the Exchange Offer. The Company has instructed the Depositary to advise you at least daily as to the number of Existing Securities which have been tendered pursuant to the Exchange Offer and as to such other matters in connection with the Exchange Offer as you may request.
- 3.
- No Liability for Acts of Brokers, Dealers, Banks and Trust Companies. Neither you nor any of your affiliates shall have any liability to the Company or any other person for any losses, claims, damages, liabilities and expenses (each, a "Loss" and collectively, the "Losses") arising from any act or omission on the part of any broker or dealer in securities (a "Dealer"), bank or trust company, or any other person, and neither you nor any of your affiliates shall be liable for any Losses arising from your own acts or omissions in performing your obligations as Dealer Manager hereunder, except for any such Losses which are finally judicially determined to have resulted primarily from your bad faith or gross negligence. In soliciting or obtaining tenders, no Dealer, bank or trust company is to be deemed to be acting as your agent or the agent of the Company or any of its affiliates, and you, as Dealer Manager, are not to be deemed the agent of any Dealer, bank or trust company or the agent or fiduciary of the Company or any of its affiliates, security holders, creditors or of any other person solely because of your role as Dealer Manager. In soliciting or obtaining tenders, you shall not be and shall not be deemed for any purpose to act as
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