Enron Mail

From:cindy.richardson@enron.com
To:gerald.nemec@enron.com
Subject:Form of Guaranty
Cc:
Bcc:
Date:Fri, 23 Feb 2001 06:27:00 -0800 (PST)

ENRON CORP.
=01;
Guaranty
=01;
This Guaranty Agreement (the "Guaranty"), dated effective as of=20
_____________, is made and entered into by Enron Corp., an Oregon corporati=
on=20
("Guarantor") in favor of _________________________ (=01&Counterparty=018).
=01;
WHEREAS, Counterparty has agreed to enter into a [DESCRIBE TRANSACTION AND=
=20
AGREEMENTS TO BE ENTERED INTO BETWEEN COUNTERPARTY AND ENRON COMPANY] (the=
=20
=01&Agreement=018) with [ENRON COMPANY] (the =01&Company"), a subsidiary of=
the=20
Guarantor. Guarantor will directly or indirectly benefit from the=20
transactions to be entered into between the Company and Counterparty.
=01;
NOW THEREFORE, in consideration of Counterparty entering into the Agreement=
,=20
Guarantor hereby covenants and agrees as follows:
1.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; GUARANTY.=01; Subject to the=
provisions hereof, (a) Guarantor=20
hereby irrevocably and unconditionally guarantees the timely payment when d=
ue=20
of the obligations of the Company to the Counterparty in connection with an=
d=20
to the extent provided for in the Agreement (the "Obligations"), and (b) to=
=20
the extent that the Company shall fail to pay any Obligations, Guarantor=20
shall promptly pay to Counterparty the amount due.=01; This Guaranty shall=
=20
constitute a guarantee of payment and not of collection.=01; The liability =
of=20
Guarantor under the Guaranty shall be subject to the following:
(a)=01;=01;=01;=01;=01;=01;=01; Guarantor's liability hereunder shall be an=
d is specifically=20
limited to payments expressly required to be made under the Agreement (even=
=20
if such payments are deemed to be damages) and, except to the extent=20
specifically provided in the Agreement, in no event shall Guarantor be=20
subject hereunder to consequential, exemplary, equitable, loss of profits,=
=20
punitive, tort, or any other damages or costs; and
=01;
(b)=01;=01;=01;=01;=01;=01;=01; The aggregate amount covered by this Guaran=
ty shall not exceed $=20
____________ (_______ U.S. Dollars).
=01;
2.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; DEMANDS AND NOTICE.=01; If t=
he Company fails or refuses to pay any=20
Obligations, Counterparty shall make a demand upon Guarantor (hereinafter=
=20
referred to as a "Payment Demand").=01; Guarantor shall pay such=01; Paymen=
t Demand=20
within five (5) business days.=01; A Payment Demand shall be in writing and=
=20
shall reasonably and briefly specify in what manner and what amount the=20
Company has failed to pay and an explanation of why such payment is due, wi=
th=20
a specific statement that Counterparty is calling upon Guarantor to pay und=
er=20
this Guaranty. A single written Payment Demand shall be effective as to any=
=20
specific default during the continuance of such default, until the Company =
or=20
Guarantor has cured such default, and additional written demands concerning=
=20
such default shall not be required until such default is cured.
=01;
3.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; REPRESENTATIONS AND WARRANTI=
ES.=01; Guarantor represents and=20
warrants that:
=01;
(a)=01;=01;=01;=01;=01;=01;=01; it is a corporation duly organized and vali=
dly existing under the=20
laws of the State of Oregon and has the corporate power and authority to=20
execute, deliver and carry out the terms and provisions of the Guaranty;
=01;
(b)=01;=01;=01;=01;=01;=01;=01; no authorization, approval, consent or orde=
r of, or registration=20
or filing with, any court or other governmental body having jurisdiction ov=
er=20
Guarantor is required on the part of Guarantor for the execution and delive=
ry=20
of this Guaranty; and
=01;
©=01;=01;=01;=01;=01;=01;=01; this Guaranty, when executed and delivered,=
will constitute a=20
valid and legally binding agreement of Guarantor, except as the=20
enforceability of this Guaranty may be limited by the effect of any=20
applicable bankruptcy, insolvency, reorganization, moratorium or similar la=
ws=20
affecting creditors' rights generally and by general principles of equity a=
s=20
they apply to the Guarantor.
=01;
4.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; SETOFFS AND COUNTERCLAIMS.=
=01; Without limiting Guarantor's own=20
defenses and rights hereunder, and except as specifically set forth in=20
Section 8 hereof, Guarantor reserves to itself all rights, setoffs,=20
counterclaims and other defenses to which the Company is or may be entitled=
=20
to arising from or out of the Agreement, (except those set-offs or=20
counterclaims arising out of the bankruptcy, insolvency, reorganization,=20
moratorium, conservatorship, receivership or similar laws relating to=20
creditors=01, rights generally, or any proceedings thereunder, in respect o=
f or=20
in relation to the Company or any of its assets) until such time (if any) a=
s=20
such set-off is disproved or judgment is given against such counterclaim.
=01;
5.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; AMENDMENT OF GUARANTY.=01; N=
o term or provision of this Guaranty=20
shall be amended, modified, altered, waived or supplemented except in a=20
writing signed by Guarantor and Counterparty.
=01;
6.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; WAIVERS.=01; Guarantor hereb=
y waives (a) notice of acceptance of=20
this Guaranty; (b) presentment and demand concerning the liabilities of=20
Guarantor, except as expressly hereinabove set forth; and © any right to=
=20
require that any action or proceeding be brought against the Company or any=
=20
other person, or except as expressly hereinabove set forth, to require that=
=20
Counterparty seek enforcement of any performance against the Company or any=
=20
other person, prior to any action against Guarantor under the terms hereof.
=01;
Except as to applicable statutes of limitation, no delay of Counterparty in=
=20
the exercise of, or failure to exercise, any rights hereunder shall operate=
=20
as a waiver of such rights, a waiver of any other rights or a release of=20
Guarantor from any obligations hereunder.
=01;
Guarantor consents to the renewal, compromise, extension, acceleration or=
=20
other changes in the time of payment of or other changes in the terms of th=
e=20
Obligations, or any part thereof or any changes or modifications to the ter=
ms=20
of the Agreement.
=01;
This Guaranty shall terminate on the earlier of _________________ at midnig=
ht=20
Houston time or upon Guarantor providing written notice of such termination=
=20
to Counterparty and upon the effectiveness of such termination, Guarantor=
=20
shall have no further liability hereunder except as provided by the last=20
sentence of this paragraph.=01; No such termination by written notice shall=
be=20
effective until fifteen (15) business days after receipt by Counterparty of=
=20
such termination notice.=01; However, in either case of termination, no suc=
h=20
termination shall affect Guarantor's liability with respect to any=20
transaction (as defined in the Agreement) entered into prior to the time th=
e=20
termination is effective, which transaction shall remain guaranteed pursuan=
t=20
to the terms of this Guaranty.
=01;
7.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; EXPENSES. The Guarantor agre=
es to pay on demand all reasonable=20
out of pocket expenses (including reasonable fees and expenses of=20
Counterparty=01,s counsel) in any way relating to the enforcement or protec=
tion=20
of the rights of the Counterparty hereunder, provided that the Guarantor=20
shall not be liable for any expenses of Counterparty if no payment under th=
is=20
Guaranty is due.
=01;
8.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; SUBROGATION.=01;=01;=01;=01;=
=01;=01;=01;=01;=01;=01;=01; The Guarantor will not exercise any=20
rights which it may have by way of subrogation until all the Obligations to=
=20
Counterparty shall have been paid in full.=01; Subject to the foregoing, up=
on=20
payment of all the Obligations, the Guarantor shall be subrogated to the=20
rights of Counterparty against the Company, and Counterparty agrees to take=
=20
at the Guarantor=01,s expense such steps as the Guarantor may reasonable re=
quest=20
to implement such subrogation.
=01;
9.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; NOTICE.=01; Any Payment Dema=
nd, notice, request, instruction,=20
correspondence or other document to be given hereunder by any party to=20
another (herein collectively called "Notice") shall be in writing and=20
delivered personally or mailed by certified mail, postage prepaid and retur=
n=20
receipt requested, or by telegram or telecopier, as follows:
=01;
To Counterparty:
=01;
=01;
=01;
=01;
=01;
=01;
=01;
To Guarantor:
=01;
Enron Corp.
1400 Smith Street
Houston, Texas=01; 77002
Attn:=01;=01;=01;=01; Vice President,
=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; Finance and Treasurer
Fax No.:=01; (713) 646-3422
=01;
Notice given by personal delivery or mail shall be effective upon actual=20
receipt. Notice given by telegram or telecopier shall be effective upon=20
actual receipt if received during the recipient's normal business hours, or=
=20
at the beginning of the recipient's next business day after receipt if not=
=20
received during the recipient's normal business hours.=01; All Notices by=
=20
telegram or telecopier shall be confirmed promptly after transmission in=20
writing by certified mail or personal delivery.=01; Any party may change an=
y=20
address to which Notice is to be given to it by giving notice as provided=
=20
above of such change of address.
=01;
10.=01;=01;=01;=01;=01;=01;=01;=01;=01;=01;=01; MISCELLANEOUS.=01; THIS GUA=
RANTY SHALL IN ALL RESPECTS BE=20
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF TEXA=
S=20
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.=01; This Guaranty shall b=
e=20
binding upon Guarantor, its successors and assigns and inure to the benefit=
=20
of and be enforceable by Counterparty, its successors and assigns.=01; The=
=20
Guaranty embodies the entire agreement and understanding between Guarantor=
=20
and Counterparty and supersedes all prior agreements and understandings=20
relating to the subject matter hereof.=01; The headings in this Guaranty ar=
e for=20
purposes of reference only, and shall not affect the meaning hereof.
=01;
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on ___________=
=20
2001, but it is effective as of the date first above written.
=01;
ENRON CORP.
=01;
By:
=01;
Name:
=01;
Title:
=01;
=01;