Common use of Covenants; Representations and Warranties; Miscellaneous Clause in Contracts

Covenants; Representations and Warranties; Miscellaneous. (a) Pledging Group will execute and deliver to Secured Group (and to the extent permitted by applicable law, Pledging Group hereby authorizes Secured Group to execute and deliver, in the name of Pledging Group or otherwise) such financing statements, assignments and other documents and do such other things relating to the Performance Assurance and the security interest granted under this Collateral Annex, including, without limitation, any action Secured Group may deem necessary or appropriate to perfect or maintain perfection of its security interest in the Performance Assurance, and Pledging Group shall pay all costs relating to its delivery of Performance Assurance and the maintenance and perfection of the security interest therein. (b) On each day on which Performance Assurance is held by Secured Group and/or its Custodian under the Agreement, including, without limitation, this Collateral Annex, Pledging Group hereby represents and warrants that: (i) Pledging Group has good title to and is the sole owner of such Performance Assurance, and the execution, delivery and performance of the covenants and agreements of the Agreement, including, without limitation, this Collateral Annex, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Performance Assurance, other than the security interests and liens created under the Agreement; (ii) upon the Transfer of Performance Assurance by Pledging Group to Secured Group and/or its Custodian, Secured Group shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; (iii) Secured Group has a valid and perfected first priority continuing security interest in the Performance Assurance, free of any liens, claims or encumbrances, except those liens, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and (iv) it is not and will not become a party to or otherwise be bound by any agreement, other than the Agreement, which restricts in any manner the rights of any present or future holder of any of the Performance Assurance with respect hereto. (c) The Agreement, including, without limitation, this Collateral Annex, has been and is made solely for the benefit of the Parties and their permitted successors and assigns, and no other person, partnership, association, corporation or other entity shall acquire or have any right under or by virtue hereof. (d) Pledging Group shall pay on request and indemnify Secured Group against any taxes (including, without limitation, any applicable transfer taxes and stamp, registration or other documentary taxes), assessments, or charges that may become payable by reason of the security interests, general first lien and right of offset granted under, or the execution, delivery, performance or enforcement of, the Agreement, including, without limitation, this Collateral Annex, as well as any penalties with respect thereto (including, without limitation costs and reasonable fees and disbursements of counsel). Each member of Pledging Group agrees to pay Secured Group for all reasonable expenses (including without limitation, court costs and reasonable fees and disbursements of counsel) incurred by it in connection with the enforcement of, or suing for or collecting any amounts payable by it under, the Agreement, including, without limitation, this Collateral Annex. (e) No failure or delay by either Group hereto in exercising any right, power, privilege, or remedy hereunder shall operate as a waiver thereof. (f) The headings in the Collateral Annex are for convenience of reference only, and shall not affect the meaning or construction of any provision thereof. SCHEDULE 1 TO COLLATERAL ANNEX IRREVOCABLE STANDBY LETTER OF CREDIT FORMAT DATE OF ISSUANCE: _______________ [Address] Re: Credit No. _______________ We hereby establish our Irrevocable Transferable Standby Letter of Credit in your favor for the account of _______________________ (the "Account Group"), for the aggregate amount not exceeding ______________________ United States Dollars ($___________), available to you at sight upon demand at our counters at (Location) on or before the expiration hereof against presentation to us of one or more of the following statements, dated and signed by [Enron North America Corp.] [COUNTERPARTY COLLATERAL ADMINISTRATOR]:

Covenants; Representations and Warranties; Miscellaneous. (a) Pledging Group Party will execute and deliver to Secured Group Party (and to the extent permitted by applicable law, Pledging Group Party hereby authorizes Secured Group Party to execute and deliver, in the name of Pledging Group Party or otherwise) such financing statements, assignments and other documents and do such other things relating to the Performance Assurance and the security interest granted under this Collateral Annex, including, without limitation, any action Annex as Secured Group Party may reasonably deem necessary or appropriate to perfect or maintain perfection of its security interest in the Performance AssuranceAssurance or otherwise as required hereunder, and Pledging Group Party shall pay all costs relating to its delivery of Performance Assurance and the maintenance and perfection of the security interest thereingranted in this Collateral Annex. (b) On each day on which Performance Assurance is held by or on behalf of Secured Group and/or its Custodian Party under the Agreement, including, without limitation, this Collateral Annex, Pledging Group Party hereby represents and warrants to Secured Party that: (i) Pledging Group Party has good title to and is the sole owner of such Performance Assurance, and the execution, delivery and performance of the covenants and agreements of the Agreement, including, without limitation, this Collateral Annex, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Performance Assurance, other than the security interests and liens created under the AgreementAgreement unless otherwise stated herein; (ii) upon the Transfer of Performance Assurance by Pledging Group Party to Secured Group and/or its CustodianParty, Secured Group Party shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; (iii) Secured Group Party has a valid and perfected first priority continuing security interest in the Performance Assurance, free of any liens, claims or encumbrances, except those liens, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and (iv) it is not and will not become a party to or otherwise be bound by any agreement, other than the Agreement, which restricts in any manner the rights of any present or future holder of any of the Performance Assurance with respect hereto. (c) The Agreement, including, without limitation, this Collateral Annex, has been and is made solely for the benefit of the Parties and their permitted successors and assigns, and no other person, partnership, association, corporation or other entity shall acquire or have any right under or by virtue hereof. (d) Pledging Group Party shall pay on request and indemnify Secured Group Party against any taxes (including, without limitation, any applicable transfer taxes and stamp, registration or other documentary taxes), assessments, or charges that may become payable by reason of the security interests, general first lien and right of offset granted under, or the execution, delivery, performance or enforcement of, the Agreement, including, without limitation, this Collateral Annex, as well as any penalties with respect thereto (including, without limitation costs and reasonable fees and disbursements of counsel). Each member of Pledging Group Party agrees to pay Secured Group Party for all reasonable expenses (including without limitation, court costs and reasonable fees and disbursements of counsel) incurred by it in connection with the enforcement of, or suing for or collecting any amounts payable by it under, the Agreement, including, without limitation, this Collateral Annex. (e) No failure or delay by either Group Party hereto in exercising any right, power, privilege, or remedy hereunder shall operate as a waiver thereof. (f) The headings in the Collateral Annex are for convenience of reference only, and shall not affect the meaning or construction of any provision thereof. SCHEDULE 1 TO COLLATERAL ANNEX IRREVOCABLE STANDBY LETTER OF CREDIT FORMAT DATE OF ISSUANCE: _______________ [Address] Re: Credit No. _______________ We hereby establish our Irrevocable Transferable Standby Letter of Credit in your favor of __________ (the "Beneficiary") for the account of _______________________ (the "Account GroupParty"), for the aggregate amount not exceeding ______________________ United States Dollars ($___________), available to you at sight upon demand at our counters at (Location) on or before the expiration hereof against presentation to us of one or more of the following statements, dated and signed by [Enron North America Corp.] _______________________]: "A Default (as defined in the Master Netting, Setoff, and Security Agreement dated as of November ___, 2002, between MCV and El Paso Merchant Energy, L.P., as the same may be amended (the "Master Agreement")) has occurred and is continuing with respect to the Account Party under the Master Agreement. Wherefore, the undersigned does hereby demand payment in the amount of [COUNTERPARTY COLLATERAL ADMINISTRATORUS$___________]:"; or "An Additional Default Event (as defined in the Master Netting, Setoff, and Security Agreement dated as of November ___, 2002, between MCV and El Paso Merchant Energy, L.P., as the same may be amended (the "Master Agreement")) has occurred and is continuing with respect to the Account Party under the Master Agreement. Wherefore, the undersigned does hereby demand payment in the amount of [US$___________]"; or

Covenants; Representations and Warranties; Miscellaneous. (a) Pledging Group will execute and deliver to Secured Group (and to the extent permitted by applicable law, Pledging Group hereby authorizes Secured Group to execute and deliver, in the name of Pledging Group or otherwise) such financing statements, assignments and other documents and do such other things relating to the Performance Assurance and the security interest granted under this Collateral Annex, including, without limitation, any action Secured Group may deem necessary or appropriate to perfect or maintain perfection of its security interest in the Performance Assurance, and Pledging Group shall pay all costs relating to its delivery of Performance Assurance and the maintenance and perfection of the security interest therein. (b) On each day on which Performance Assurance is held by Secured Group and/or its Custodian under the Agreement, including, without limitation, this Collateral Annex, Pledging Group hereby represents and warrants that: (i) Pledging Group has good title to and is the sole owner of such Performance Assurance, and the execution, delivery and performance of the covenants and agreements of the Agreement, including, without limitation, this Collateral Annex, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Performance Assurance, other than the security interests and liens created under the Agreement; (ii) upon the Transfer of Performance Assurance by Pledging Group to Secured Group and/or its Custodian, Secured Group shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; (iii) Secured Group has a valid and perfected first priority continuing security interest in the Performance Assurance, free of any liens, claims or encumbrances, except those liens, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and (iv) it is not and will not become a party to or otherwise be bound by any agreement, other than the Agreement, which restricts in any manner the rights of any present or future holder of any of the Performance Assurance with respect hereto. (c) The Agreement, including, without limitation, this Collateral Annex, has been and is made solely for the benefit of the Parties and their permitted successors and assigns, and no other person, partnership, association, corporation or other entity shall acquire or have any right under or by virtue hereof. (d) Pledging Group shall pay on request and indemnify Secured Group against any taxes (including, without limitation, any applicable transfer taxes and stamp, registration or other documentary taxes), assessments, or charges that may become payable by reason of the security interests, general first lien and right of offset granted under, or the execution, delivery, performance or enforcement of, the Agreement, including, without limitation, this Collateral Annex, as well as any penalties with respect thereto (including, without limitation costs and reasonable fees and disbursements of counsel). Each member of Pledging Group agrees to pay Secured Group for all reasonable expenses (including without limitation, court costs and reasonable fees and disbursements of counsel) incurred by it in connection with the enforcement of, or suing for or collecting any amounts payable by it under, the Agreement, including, without limitation, this Collateral Annex. (e) No failure or delay by either Group hereto in exercising any right, power, privilege, or remedy hereunder shall operate as a waiver thereof. (f) The headings in the Collateral Annex are for convenience of reference only, and shall not affect the meaning or construction of any provision thereof. SCHEDULE 1 TO COLLATERAL ANNEX IRREVOCABLE STANDBY LETTER OF CREDIT FORMAT DATE OF ISSUANCE: _______________ [Address] Re: Credit No. _______________ We hereby establish our Irrevocable Transferable Standby Letter of Credit in your favor for the account of _______________________ (the "Account Group"), for the aggregate amount not exceeding ______________________ United States Dollars ($___________), available to you at sight upon demand at our counters at (Location) on or before the expiration hereof against presentation to us of one or more of the following statements, dated and signed by [Enron North America Corp.] [COUNTERPARTY COLLATERAL ADMINISTRATORX]: 1. A Default (as defined in the Master Netting, Setoff, and Security Agreement dated as of ________ among ______________, as the same may be amended (the "Master Agreement")) has occurred and is continuing with respect to the Account Group or any member of the Account Group under the Master Agreement and no Default has occurred and is continuing with respect to the beneficiary of this Letter of Credit or any other member of its Group (as defined in the Master Agreement). Wherefore, the undersigned does hereby demand payment of $_________________"; or

Covenants; Representations and Warranties; Miscellaneous. (a) The Pledging Group Party will execute and deliver to the Secured Group Party (and to the extent permitted by applicable law, the Pledging Group Party hereby authorizes the Secured Group Party to execute and deliver, in the name of the Pledging Group Party or otherwise) such financing statements, assignments and other documents and do such other things relating to the Performance Assurance and the security interest granted under this Collateral AnnexCSA, including, without limitation, including any action the Secured Group Party may deem necessary or appropriate to perfect or maintain perfection of its security interest in the Performance Assurance, and the Pledging Group Party shall pay all costs relating to its delivery Transfer of Performance Assurance and the maintenance and perfection of the security interest therein. (b) On each day on which Performance Assurance is held by the Secured Group Party and/or its Custodian under the AgreementContract and this CSA, including, without limitation, this Collateral Annex, the Pledging Group Party hereby represents and warrants that: (i) the Pledging Group Party has good title to and is the sole owner of such Performance Assurance, and the execution, delivery and performance of the covenants and agreements of the Agreement, including, without limitation, this Collateral AnnexCSA, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Performance Assurance, other than the security interests and liens created under the AgreementContract and this CSA; (ii) upon the Transfer of Performance Assurance by the Pledging Group Party to the Secured Group Party and/or its Custodian, the Secured Group Party shall have a valid and perfected first priority continuing security interest therein, free of any liens, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; (iii) Secured Group has a valid and perfected first priority continuing security interest in the Performance Assurance, free of any liens, claims or encumbrances, except those liens, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and (iviii) it is not and will not become a party to or otherwise be bound by any agreement, other than the AgreementContract and this CSA, which restricts in any manner the rights of any present or future holder of any of the Performance Assurance with respect hereto. (c) The Agreement, including, without limitation, this Collateral Annex, This CSA has been and is made solely for the benefit of the Parties and their permitted successors and assigns, and no other person, partnership, association, corporation or other entity shall acquire or have any right under or by virtue hereofof this CSA. (d) The Pledging Group Party shall pay on request and indemnify the Secured Group Party against any taxes (including, including without limitation, any applicable transfer taxes and stamp, registration or other documentary taxes), assessments, or charges that may become payable by reason of the security interests, general first lien and right of Gas Sale and Purchase Contract (December 1, 2004) offset granted under, under this CSA or the execution, delivery, performance or enforcement of, of the Agreement, including, without limitation, Contract and this Collateral AnnexCSA, as well as any penalties with respect thereto (including, without limitation costs and reasonable fees and disbursements of counsel). Each member of Pledging Group agrees The Parties each agree to pay Secured Group the other Party for all reasonable expenses (including without limitation, court costs and reasonable fees and disbursements of counsel) incurred by it the other in connection with the enforcement of, or suing for or collecting any amounts payable by it under, the Agreement, including, without limitation, this Collateral AnnexCSA. (e) No failure or delay by either Group hereto in exercising any right, power, privilege, or remedy hereunder shall operate as a waiver thereof. (f) The headings in the Collateral Annex are for convenience of reference only, and shall not affect the meaning or construction of any provision thereof. SCHEDULE 1 TO COLLATERAL ANNEX IRREVOCABLE STANDBY LETTER OF CREDIT FORMAT DATE OF ISSUANCE: _______________ [Address] Re: Credit No. _______________ We hereby establish our Irrevocable Transferable Standby Letter of Credit in your favor for the account of _______________________ (the "Account Group"), for the aggregate amount not exceeding ______________________ United States Dollars ($___________), available to you at sight upon demand at our counters at (Location) on or before the expiration hereof against presentation to us of one or more of the following statements, dated and signed by [Enron North America Corp.] [COUNTERPARTY COLLATERAL ADMINISTRATOR]:

Covenants; Representations and Warranties; Miscellaneous. (a) Pledging Group The Posting Party will execute and deliver to Secured Group the Beneficiary Party (and to the extent permitted by applicable law, Pledging Group the Posting Party hereby authorizes Secured Group the Beneficiary Party to execute and deliver, in the name of Pledging Group the Posting Party or otherwise) such financing statements, assignments and other documents and do such other things relating to the Performance Assurance and the security interest granted under this Collateral Annex, including, without limitation, Annex including any action Secured Group the Beneficiary Party may deem necessary or appropriate to perfect or maintain perfection of its security interest in the Performance Assurance, and Pledging Group the Posting Party shall pay all costs relating to its delivery of Performance Assurance and the maintenance and perfection of the security interest therein. (b) On each day on which Performance Assurance is held by Secured Group and/or its Custodian under the Agreement, including, without limitation, this Collateral AnnexAnnex by the Beneficiary Party, Pledging Group the Posting Party hereby represents and warrants that: (i) Pledging Group : the Posting Party has good and marketable title to and is the sole owner of such Performance Assurance, and the execution, delivery and performance of the covenants and agreements of the Agreement, including, without limitation, this Collateral Annex, do not result in the creation or imposition of any lien or security interest upon any of its assets or properties, including, without limitation, the Performance Assurance, other than the security interests and liens created under the Agreement; (ii) Agreements and this Collateral Annex; upon the Transfer transfer of Performance Assurance by Pledging Group the Posting Party to Secured Group and/or its Custodianthe Beneficiary Party for the benefit of the Beneficiary Party, Secured Group the Beneficiary Party shall have a valid and perfected first priority continuing security interest therein, free of any liens, security interests, claims or encumbrances, except those liens, security interests, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; (iii) Secured Group has a valid and perfected first priority continuing security interest in the Performance Assurance, free of any liens, claims or encumbrances, except those liens, claims or encumbrances arising by operation of law that are given priority over a perfected security interest; and (iv) it is not and will not become a party Party to or otherwise be bound by any agreement, other than the AgreementAgreements and this Collateral Annex, or amendments thereto, which restricts in any manner the rights of any present or future holder of any of the Performance Assurance with respect hereto; and No approval or authorization by, and no filing with or consent of, any federal, state, local, municipal or other government agency, department or regulatory authority is required either (A) for the grant by the Posting Party of the liens granted hereby or for the execution, delivery or performance of this Collateral Annex by the Posting Party or (B) for the perfection (except for filing of any financing statements in the jurisdictions identified in writing by the Posting Party) of the liens created hereby or the exercise by the Beneficiary Party of the rights and remedies hereunder. (c) The Agreement, including, without limitation, this This Collateral Annex, Annex has been and is made solely for the benefit of the Parties and their permitted successors and assigns, and no other person, partnership, association, corporation corporation, or other entity shall acquire or have any right under thereunder or by virtue hereof. (d) Pledging Group shall pay on request and indemnify Secured Group against any taxes (including, without limitation, any applicable transfer taxes and stamp, registration or other documentary taxes), assessments, or charges that may become payable by reason of the security interests, general first lien and right of offset granted under, or the execution, delivery, performance or enforcement of, the Agreement, including, without limitation, this Collateral Annex, as well as any penalties with respect thereto (including, without limitation costs and reasonable fees and disbursements of counsel). Each member of Pledging Group agrees to pay Secured Group for all reasonable expenses (including without limitation, court costs and reasonable fees and disbursements of counsel) incurred by it in connection with the enforcement of, or suing for or collecting any amounts payable by it under, the Agreement, including, without limitation, this Collateral Annex. (d) Each Party represents and warrants to the other Party that (i) it has all requisite power and authority to execute and deliver this Collateral Annex, to consummate the transactions contemplated hereby and to perform its respective obligations hereunder; (ii) it has taken all necessary action to authorize the execution, delivery and performance of this Collateral Annex and (iii) this Collateral Annex has been duly executed and delivered and, when executed and delivered by the other Party, will constitute the legal, valid and binding obligation of such Party enforceable against it in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally or by general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law). (e) No failure As of the date a Party executes this Collateral Annex, the Cover Sheet Elections, or delay Security Agreement, or any amendment thereto, such Party is a member in good standing of the WSPP, Inc. or has signed a WSPP Agreement. (f) Section 34 of the WSPP Agreement is inapplicable to any disputes concerning the enforcement of this Collateral Annex or the rights and obligations set forth herein concerning Performance Assurance. In the event litigation is commenced by either Group hereto Party to enforce this Collateral Annex or collect any amounts required to be paid, provided or transferred hereunder, each Party agrees to pay the other Party for all reasonable attorneys' fees, disbursements, and court costs incurred by the prevailing Party in such litigation. (g) No delay or forbearance by any Party or its agents in exercising any right, power, privilege, or remedy hereunder accruing to such Party upon the occurrence of any breach or default by the other Party under this Collateral Annex, and no course of dealing between the Parties, shall operate as impair any such right, power or remedy of the non-defaulting Party, nor shall it be construed to be a waiver thereofof any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of a Party of any such breach or default under this Collateral Annex, or any waiver on the part of any non-defaulting Party hereto of any provision or condition of this Collateral Annex, must be in writing or electronic mail and shall be effective only to the extent specifically set forth in such communication. This Collateral Annex may be amended only by a document executed by the Parties. (fh) Each demand, notice, consent, agreement, approval or other communication required or permitted to be given from one Party to the other Party under this Collateral Annex shall be provided in writing (unless expressly provided otherwise) and shall be submitted by recognized overnight courier service or telefacsimile addressed to the recipient Party at its address set forth in Part IX of the Cover Sheet Elections or as changed by notice to the other Party. Email communications shall be permitted for Demand Notices, to the extent and following the protocols, set forth in the Cover Sheet Elections. All such notices, requests, demands, approvals and other communications shall be deemed to have been duly given, received and effective when: (a) received if personally delivered; (b) on the day transmitted (unless transmitted after 2:00 p.m. PPT at the place of receipt or on a day that is not a Business Day, in which case it shall be deemed received on the next Business Day), if transmitted by facsimile transmis­sion and the sender's facsimile machine has received the correct answerback of the addressee and confirmation of uninterrupted transmission by a transmission report or the recipient confirming by telephone to sender that he has received the facsimile message; (c) the day immediately following the day it is sent, if sent for next day delivery to a domestic address by a nationally-recognized overnight courier or delivery service; (d) on the day of receipt, if sent by certified or registered mail, return receipt requested; and (e) on the date actually received, if sent or delivered by any other means; provided, that any notice, demand, request or other communication made or delivered in connection with an alleged breach or default hereunder (including an Event of Default) shall only be delivered personally or by a nationally-recognized overnight courier or delivery service. (i) The headings in the this Collateral Annex are for convenience of reference only, and shall not affect the meaning or construction of any provision thereof. SCHEDULE 1 TO COLLATERAL ANNEX IRREVOCABLE STANDBY LETTER OF CREDIT FORMAT DATE OF ISSUANCE: _______________ [Address] Re: Credit No. _______________ We hereby establish our Irrevocable Transferable Standby Letter . (j) This Collateral Annex shall be governed by, and construed and interpreted in accordance with, the laws of Credit in your favor the State of Washington except to the extent that the perfection, the effect of perfection or nonperfection and the priority of the security interest granted hereunder, or remedies hereunder, are governed by provisions of the UCC, including but not limited to UCC §§ 9-104, 9-301, 9-303, 9-304, 9-305, 9-306 and 9-307, that may call for the account application of _______________________ the laws of jurisdictions other than the State of Washington. (the "Account Group"), for the aggregate amount not exceeding ______________________ United States Dollars ($___________), available to you at sight upon demand at our counters at (Locationk) on or before the expiration hereof against presentation to us of This Collateral Annex may be executed in one or more counterparts, all of which, when taken together, shall constitute one and the same instrument and each of the following statements, dated and signed Parties hereto may execute this Collateral Annex by [Enron North America Corp.] [COUNTERPARTY COLLATERAL ADMINISTRATOR]:signing any such counterpart.