1
EXHIBIT 10.104
Guaranty Agreement
This Guaranty Agreement (this "Guaranty"), dated as of June 1, 2000,
is made and entered into by East Coast Power L.L.C., a Delaware limited
liability company ("Guarantor"), in favor of Cogen Technologies Linden Venture,
L.P. a Delaware limited partnership ("Counterparty").
WHEREAS, Counterparty and JEDI Linden NB, L.L.C., a Delaware limited
liability company and wholly-owned subsidiary of the Guarantor (the "Company"),
have entered into a Shared Facilities and Coordinated Operations Agreement and
Indemnity (the "Shared Facility Agreement") and a Sublease, dated the dated
hereof (the "Agreements"); and
WHEREAS, Guarantor will directly or indirectly benefit from the
transactions contemplated by the Agreements.
NOW THEREFORE, in consideration of Counterparty entering into the
Agreements, Guarantor hereby covenants and agrees as follows:
1. GUARANTY. Subject to the provisions hereof, (a) Guarantor hereby
irrevocably and unconditionally guarantees the timely payment when due of the
indemnification obligations of the Company to the Counterparty in connection
with and to the extent provided for in Section 12.2A of the Shared Facility
Agreement (the "Obligations"), and (b) to the extent that the Company shall
fail to pay any Obligations, Guarantor shall promptly pay to Counterparty the
amount due as provided in paragraph 2 below. This Guaranty shall constitute a
guarantee of payment and not of collection.
Guarantor's liability hereunder shall be and is specifically limited
to payments expressly required to be made under the Agreements (even if such
payments are deemed to be damages).
2. DEMANDS AND NOTICE. If the Company fails or refuses to pay any
Obligations, Counterparty shall make a demand upon Guarantor (hereinafter
referred to as a "Payment Demand"). Guarantor shall pay such Payment Demand
within five (5) business days. A Payment Demand shall be in writing and shall
reasonably and briefly specify the Obligation that the Company has failed to
pay and shall include a specific statement that Counterparty is calling upon
Guarantor to pay under this Guaranty.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants
that:
(a) it is duly organized and validly existing under the laws of the
State of Delaware and has the corporate power and authority to execute, deliver
and carry out the terms and provisions of this Guaranty;
2
(b) 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;
(c) this Guaranty, when executed and delivered, will constitute a
valid and legally binding agreement of Guarantor, 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 as they apply to
Guarantor;
(d) the Guarantor has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Guaranty, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Guaranty;
(e) the execution, delivery and performance of this Guaranty will not
violate any provision of any requirement of law or contractual obligation of
the Guarantor and will not result in or require the creation or imposition of
any lien on any of the properties or revenues of the Guarantor pursuant to any
requirement of law or contractual obligation of the Guarantor; and
(f) the Guarantor shall preserve and maintain its existence for the
term of this Guaranty.
4. SETOFFS AND COUNTERCLAIMS. Guarantor reserves to itself all rights,
setoffs, counterclaims and other defenses to which the Company is or may be
entitled to in connection with any claim for payment by Counterparty to the
Company under Section 12.2A of the Shared Facility Agreement (except any
rights, setoffs, counterclaims or other defenses arising out of the bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership or
similar laws relating to creditors' rights generally in respect of or in
relation to the Company or any of its assets).
5. AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall
be amended, modified, altered, waived or supplemented except in a writing
signed by Guarantor and Counterparty.
6. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
The Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against the Guarantor, and without notice to or
further assent by the Guarantor, any demand for payment of any of the
Obligations made by the Counterparty may be rescinded by the Counterparty, and
any of the Obligations continued, and the Obligations, or the liability of any
other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Counterparty,
and the Agreements, and any other documents executed and delivered in
2
3
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the parties may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Counterparty for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Counterparty shall not have any obligation to
protect, secure, perfect or insure any lien at any time held by it as security
for the Obligations or for this Guaranty or any property subject thereto. When
making any demand hereunder against the Guarantor, the Counterparty may, but
shall be under no obligation to, make a similar demand on the Company or any
other guarantor, and any failure by the Counterparty to make any such demand or
to collect any payments from the Company or any such other guarantor or any
release of the Company or such other guarantor shall not relieve the Guarantor
of its obligations or liabilities hereunder, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Counterparty against the Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
7. GUARANTY ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Counterparty upon this
Guaranty or acceptance of this Guaranty; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and all
dealings between the Company or the Guarantor, on the one hand, and
Counterparty, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Guaranty. The Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Company or the Guarantor with respect to the
Obligations. This Guaranty shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity,
regularity or enforceability of the Agreements, any of the Obligations or any
other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Counterparty, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance or any defense, setoff or counterclaim permitted by section 4
hereof) which may at any time be available to or be asserted by the Company
against the Counterparty, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Company or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Company for the Obligations, or of the Guarantor under this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantor, the Counterparty may, but shall be
under no obligation to, pursue such rights and remedies as it may have against
the Company or any other person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any
failure by the Counterparty to pursue such other rights or remedies or to
collect any payments from the Company or any such other person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Company or any such other person or of any such
collateral security, guarantee or right of offset, shall not relieve the
Guarantor of any liability hereunder, and shall not impair or affect the rights
3
4
and remedies, whether express, implied or available as a matter of law, of the
Counterparty against the Guarantor. This Guaranty shall remain in full force
and effect and be binding in accordance with and to the extent of its terms
upon the Guarantor and its successors and assigns thereof, and shall inure to
the benefit of the Counterparty, and their respective successors, endorsees,
transferees and assigns, until all the Obligations and the obligations of the
Guarantor under this Guaranty shall have been satisfied by payment in full.
8. REINSTATEMENT. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned
by the Counterparty upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Company or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any substantial part of its property, or otherwise, all as though
such payments had not been made.
9. EXPENSES. Guarantor agrees to pay on demand all reasonable out of
pocket expenses (including reasonable fees and expenses of Counterparty's
counsel) in any way relating to the enforcement or protection of the rights of
the Counterparty hereunder.
10. SUBROGATION. Guarantor will not exercise any rights which it may
have by way of subrogation until all the Obligations to Counterparty shall have
been paid in full. Subject to the foregoing, upon payment of all the
Obligations, Guarantor shall be subrogated to the rights of Counterparty
against the Company, and Counterparty agrees to take at Guarantor's expense
such steps as the Guarantor may reasonably request to implement such
subrogation.
11. NOTICE. Any Payment Demand, notice, request, instruction,
correspondence or other document to be given hereunder by any party to another
(herein 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 Counterparty:
Cogen Technologies Linden Venture, L.P.
Pennzoil Building - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
4
5
To Guarantor:
East Coast Power L.L.C.
Pennzoil Building - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copies to:
East Coast Power L.L.C.
Pennzoil Building - South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Contract Administrator
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Enron North America Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
12. ASSIGNMENT. The Guaranty shall be assignable only in accordance
with the assignment of the Agreements.
13. MISCELLANEOUS. THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. This
Guaranty shall be binding upon Guarantor, its successors and assigns and inure
to the benefit of and be enforceable by Counterparty, its successors and
assigns. This Guaranty embodies the entire agreement and understanding between
Guarantor and Counterparty 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.
5
6
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty effective
as of the date first above written.
East Coast Power L.L.C.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ACCEPTANCE IS HEREBY ACKNOWLEDGED:
COGEN TECHNOLOGIES LINDEN VENTURE, L.P.
By: Cogen Technologies Linden, Ltd., its general partner
By: JEDI Linden GP, L.L.C., its general partner
By: JEDI Linden NB, L.L.C., its managing member
By: East Coast Power L.L.C., its sole member
By:
------------------------------------------
Name:
Title:
6