Enron Mail |
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;
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