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Enron Mail |
ENFOLIO MASTER FIRM PURCHASE/SALE AGREEMENT
GUARANTY AGREEMENT SAMPLE FOR DISCUSSION PURPOSES ONLY This Guaranty Agreement (this "Guaranty"), dated as of ________, is made and entered into between ________________, a ___________ corporation ("Guarantor "), and ______________________, a _____________ ___________ ("Contract Party"). WHEREAS, (i) Contract Party and ____________________, a wholly owned subsidiary of Guarantor ("Obligor"), are contemplating entering into an ENFOLIO Master Firm Purchase/Sale Agreement of even date here-with and herein incorporated for all purposes (said Agreement, as the same may be from time to time extended, amended and supplemented, particularly including, without limitation, all Transactions thereunder, the "Gas Contract"), (ii) Guarantor will directly or indirectly benefit from the Gas Contract and (iii) as a condition precedent to the consummation of the Gas Contract, Contract Party has required that Guarantor unconditionally guarantee to Contract Party all payment obligations of Obligor under the Gas Contract. NOW THEREFORE, to induce Contract Party to enter into the Gas Contract, Guarantor agrees as follows: 1. PAYMENT GUARANTY. Guarantor absolutely, irrevocably and unconditionally guarantees to Contract Party all payment obligations of Obligor set forth in the Gas Contract and interest thereon accrued as provided in the Gas Contract (the "Obligations"); provided, the applicable rate of interest shall never exceed the maximum lawful rate permitted by law. This guaranty of payment is a continuing guaranty effective during the term of the Gas Contract and until complete performance by Obligor of its obligations under the Gas Contract and payment in full of all Obligations; provided, in all instances this Guaranty shall continue for a period of six months after the termination of the Gas Contract for the purpose of guaranteeing indemnity Obligations which survive the termination of the Gas Contract as set forth in Section 8.4 of the Gas Contract (the "Indemnity Period"). With respect to any Claims threatened or filed as of the close of the Indemnity Period, the Obligations resulting from any such Claims shall be guaranteed hereunder. No notice of the Obligations or any Transaction need be given in any form to Guarantor at any time and Guarantor WAIVES any such notice and the right to consent to the Obligations or any Transaction. Guarantor WAIVES any right to require as a condition to its obligations hereunder that (i) collateral be applied to the Obligations, (ii) presentment or demand be made upon Obligor or (iii) action be brought against Obligor or any other person or entity except Guarantor, should Contract Party seek to enforce the obligations of Guarantor. Specifically, without limitation, Guarantor WAIVES any right to require, substantively or procedurally, that (i) a judgment previously be rendered against Obligor or any other person or entity except Guarantor, (ii) Obligor or any other person or entity be joined in any action against Guarantor or (iii) an action separate from one against Guarantor be brought against Obligor or any other person or entity. The obligations of Guarantor are several from those of Obligor or any other person or entity, including, without limitation, any other surety for Obligor, and are primary payment obligations concerning which Guarantor is the principal obligor. To the extent Obligor shall fail to timely make payment of any Obligations, Guarantor shall satisfy its obligations hereunder regardless of whether Contract Party or any other person or entity shall have taken any steps to enforce its rights against Obligor or any other person or entity except Guarantor. The obligations of Guarantor hereunder shall in no way be affected or impaired by reason, and Guarantor WAIVES its right to prior notice, of the happening from time to time of any of the following: (i) extensions (whether or not material) of the time for payment of all or any portion of the Obligations, (ii) the modification or amendment in any manner (whether or not material) of the Gas Contract or the Obligations, (iii) except for applicable statutes of limitations, any failure, delay or lack of diligence on the part of Contract Party, or any other person or entity to enforce, assert or exercise any right, privilege, power or remedy conferred on Contract Party or any other person or entity in the Gas Contract or at law, or any action on the part of Contract Party or such other person or entity granting indulgence or extension of any kind, (iv) the settlement or compromise of any Obligations, (v) the status, composition, structure or name of Obligor change, including, without limitation, by reason of merger, dissolution, consolidation or reorganization, (vi) except for releases or waivers resulting from the rights or defenses of Obligor that Guarantor has reserved in Section 3, the release or waiver, by operation of law or otherwise, of the performance or observance by Obligor of any express or implied covenant, term or condition in the Gas Contract, (vii) the release or waiver, by operation of law or otherwise, of the performance or observance by any co-guarantor, surety, endorser or other obligor of any express or implied covenant, term or condition to be performed or observed by it under the Gas Contract or related document and (viii) the failure to acquire, perfect or maintain perfection of any lien on, or security interest in, any collateral provided by Obligor to Contract Party or the release of any such collateral or the release, modification or waiver of, or failure to enforce, any pledge, security device, guaranty, surety or other indemnity agreement in respect of such collateral. Notwithstanding the foregoing, the liability of Guarantor hereunder shall be limited to direct, actual damages and, unless expressly provided in the Gas Contract, Guarantor shall not be liable for consequential, incidental, punitive, exemplary or indirect damages, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, in tort, contract or otherwise, or any penalties or charges assessed by any person or entity for the unauthorized receipt of gas. Upon 30 Days written notice and with the prior written consent of Contract Party, which consent shall not be unreasonably withheld, this Guaranty may be replaced by (i) a guaranty in identical form made by a guarantor of equal or better creditworthiness, including credit ratings by nationally recognized credit rating agencies, taking into consideration all relevant information concerning corporate structure, all relevant financial information, both current and projected, and all effects on the enforceability of the replacement guaranty, or (ii) a letter of credit in favor of Contract Party in the amount of the Maximum Limit (below defined), issued by a bank and in a form, each of which shall be reasonably satisfactory to Contract Party, taking into consideration all effects on the enforceability of the replacement letter of credit; provided, this Guaranty shall continue to apply to all Transactions in effect at the time this Guaranty is replaced until all such Transactions are completed and the replacement guaranty or letter of credit shall apply to only those Transactions formed after its execution and delivery. 2. MAXIMUM LIMIT. The amount covered by this Guaranty for all Obligations in respect of the aggregate of all Transactions under the Gas Contract that ever shall be required to be paid by Guarantor shall not exceed $_____________ (the "Maximum Limit"); provided, this Guaranty shall cover and Guarantor shall pay, in addition to the Maximum Limit, all reasonable expenses, including, without limitation, attorneys' fees, court costs and similar costs, of Contract Party in the event of judgment, settlement or other enforcement against Guarantor. The Maximum Limit shall not be affected by the number or type of outstanding Transactions or the holding or application of any collateral by Contract Party. 3. DEFENSES. Other than as expressly waived in this Guaranty, Guarantor retains its own defenses and rights hereunder. Guarantor WAIVES all rights, setoffs, counterclaims and other defenses of Obligor relating to the Obligations, including, without limitation, all rights, setoffs, counterclaims and other defenses arising out of the bankruptcy, insolvency, dissolution or liquidation of Obligor. 4. DEFAULT. If Obligor fails or refuses to pay timely any Obligations, Contract Party may at its option exercise any or all of its rights, powers and remedies afforded hereunder and under all documents, if any, securing this Guaranty and may declare the unpaid amounts of all Obligations then owing under the Gas Contract to be immediately due and payable, and thereupon such amounts shall be immediately due and payable without presentation and demand for payment, protest, notice of protest or dishonor, notice of default, notice of intent to accelerate or notice of acceleration to Guarantor or any other person or entity, all of which Guarantor hereby WAIVES. 5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the State of its incorporation and has the power and authority to execute, deliver and carry out the terms and provisions of this Guaranty, (ii) no authorization, approval, consent or order of, or registration or filing with, any court or other governmental body having jurisdiction over Guarantor is required on the part of Guarantor for the execution and delivery of this Guaranty and (iii) assuming due authorization, execution and delivery hereof by Contract Party, this Guaranty constitutes a legal, valid and binding agree-ment of Guarantor enforceable in accordance with its terms, except as the enforceability thereof 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. 6. FINANCIAL INFORMATION. At the written request of Contract Party, Guarantor shall provide Contract Party with the financial information described in Appendix "1" of the Gas Contract under Financial Information in accordance therewith. 7. NOTICE. All notices and communications made pursuant to this Guaranty shall be in writing and delivered personally or mailed by certified mail, postage prepaid and return receipt requested, or sent by facsimile, as follows: To Guarantor: ________________ ________________ ________________ Facsimile: _______ To Contract Party: ________________ ________________ ________________ Facsimile: _______ Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall be effective upon actual receipt if received during recipient's normal business hours or at the beginning of recipient's next business day after receipt if not received during recipient's normal business hours. Any party may change its address to which notice is to be given hereunder by providing notice of same in accordance with this Section 7. 8. LAW, WAIVERS, MISCELLANEOUS. THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. Guarantor WAIVES all right to require marshaling of assets and liabilities, sale in inverse order of alienation, notice of disposition of collateral and notice of acceptance of this Guaranty. The Transaction Procedures set forth in the Gas Contract are acknowledged and agreed to by Guarantor and Guarantor agrees not to contest the validity or enforceability of any Transaction entered into in accordance with the Transaction Procedures under applicable law relating to whether certain agreements are to be in writing or signed by the Party to be thereby bound. No term or provision of this Guaranty shall be amended, modified, altered, waived, supple-mented or terminated except in a writing signed by the parties hereto. All capitalized terms used in this Guaranty and not herein defined shall have the meanings attributed to them in the Gas Contract. This Guaranty shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of Guarantor and Contract Party. This Guaranty embodies the entire agreement and under-standing between Guarantor and Contract Party and supersedes all prior 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. This Guaranty may be executed in any number of counterparts, each of which shall be an original, but all of which together shall con-stitute one document. The parties hereto have caused this Guaranty to be executed as of the day and year first above written. [GUARANTOR] [CONTRACT PARTY] ____________________________ _____________________________ By _________________________ By __________________________ Title _______________________ Title ________________________ Debra Perlingiere Enron North America Corp. Legal Department 1400 Smith Street, EB 3885 Houston, Texas 77002 dperlin@enron.com Phone 713-853-7658 Fax 713-646-3490
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