Exhibit 10.4.a.
GUARANTY
This Guaranty, dated as of April 1, 2002, is made by Great
Plains Energy Incorporated (herein called "Guarantor"), a
Missouri corporation with its principal place of business located
at 0000 Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, in favor of Xxxxxxxx
Energy Marketing & Trading Company (herein called "Creditor")
with its principal place of business located at Xxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxx 00000.
In order to induce Creditor to enter into, from time to
time, agreements or contracts (herein collectively called the
"Agreements") with Strategic Energy, L.L.C. (herein called
"Debtor"), a Delaware limited liability company and a related
company of Guarantor (Guarantor has an indirect ownership
interest in Debtor), with its principal place of business located
at Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Guarantor
acknowledges adequate consideration and hereby 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 7 of
this Guaranty shall be required 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 thirty (30) 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. Waiver. Except as otherwise provided in
Sections 2, 5 or 8 hereof, Guarantor hereby waives:
(a) notice of acceptance of this Guaranty, of the
creation and/or existence of any of the Obligations and of
any action by Creditor in reliance hereon or in connection
herewith;
(b) promptness, diligence, presentment, demand for
payment, notice of
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dishonor or nonpayment, protest and notice of protest with
respect to the Obligations; and
(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.
Except as to applicable statutes of limitation or repose, no
delay of Creditor in the exercise of, or failure to exercise, any
rights hereunder shall operate as a waiver of such rights, a
waiver of any other rights or a release of Guarantor from any
obligations hereunder.
Guarantor consents to the renewal, compromise, extension,
acceleration or other changes in the time of payment of or other
changes in the terms of the Obligations, or any part thereof or
any changes or modifications to the terms of the Agreements
(collectively, "Changes"); however, such consent shall not be
deemed to add to, delete from, or modify any of the terms and
conditions of this Guaranty. Creditor shall take reasonable
efforts to seasonably notify Guarantor of any Changes; provided
that Creditor's failure to provide such notice shall not affect
the validity or effectiveness of such Changes or Guarantor's
obligations hereunder.
Section 4. 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 qualify 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;
and
(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.
Section 5. Setoffs and Counterclaims. Without limiting
Guarantor's own defenses and rights hereunder, Guarantor reserves
to itself all rights, setoffs, counterclaims and other defenses
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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 6. 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 7. Addresses for Notices. All notices and other
communications provided for hereunder (collectively called
"Notice") shall be in writing and delivered personally or mailed
by certified mail, postage prepaid and return receipt requested,
or by telegram or telecopier, as follows:
To Guarantor: Great Plains Energy Incorporated
0000 Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Treasurer
To Creditor: Xxxxxxxx Energy Marketing &
Trading Company
Xxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Contract Management
Notice given by personal delivery or mail shall be effective
upon actual receipt. Notice given by telegram or telecopier
shall be effective upon actual receipt if received during the
recipient's normal business hours, or at the beginning of the
recipient's next business day after receipt if not received
during the recipient's normal business hours. All Notices by
telegram or telecopier shall be confirmed promptly after
transmission in writing by certified mail or personal delivery.
Any party may change any address to which Notice is to be given
to it by giving notice as provided above of such change of
address.
Section 8. 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 9. 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) ten (10) days after Creditor receives written notice
from Guarantor of such termination, (b) the full payment of all
Obligations, and (c) March 31, 2003 (the "Termination Date").
Except as set forth in the next sentence, from and after the
Termination Date, Guarantor shall have no liability whatsoever
for any Obligations created or incurred either before, on or
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after the Termination Date. Notwithstanding the preceding
sentence, (i) no termination of this Guaranty pursuant to clause
(a) of this Section 9 shall affect Guarantor's obligations
hereunder for any Obligations created or incurred on or before
the Termination Date, and (ii) this Guaranty shall continue to be
effective or reinstated, as the case may be, if at any time
payment of the Obligations created or incurred on or before the
Termination Date, or any part thereof, is rescinded or must
otherwise be returned by Creditor upon the insolvency, bankruptcy
or reorganization of Debtor or otherwise, 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 10. 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 Missouri,
without reference to conflict of laws principles of said state.
Section 11. 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, but in no event shall
Guarantor be liable or otherwise subject hereunder to any
indirect, special, incidental, consequential, exemplary,
punitive or tort damages, costs, attorney's fees and
expenses or loss of profits; and
(b) Guarantor's aggregate liability to Creditor under
this Guaranty is limited to and shall not exceed Sixteen
Million Dollars ($16,000,000.00).
Section 12. 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/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: vice President - Finance,
Chief Financial Officer
and Treasurer
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