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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 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in favor of El Paso
Merchant Energy, L.P. (herein called "Creditor") with its
principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
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 ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior VP Finance, Chief
Financial Officer & Treasurer