PARENT GUARANTY
This GUARANTY, dated as of March ____, 1995, made by RAYTHEON
COMPANY, a Delaware corporation, ("Guarantor") in favor of
PANDA-BRANDYWINE, L. P., a Delaware Limited partnership
("Owner").
RECITALS
WHEREAS, Owner has entered into an Amended and Restated
Turnkey Cogeneration Facility Agreement dated as of
February _____, 1995 with Raytheon Engineers &
Constructors, Inc., a Delaware corporation ("Contractor"),
for the performance by Contractor of certain work and
services in connection with the establishment of a
cogeneration facility in Prince George's County, Maryland,
(the ''Agreement"; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the
Agreement );
WHEREAS, Contractor is an indirect subsidiary
of Guarantor;
WHEREAS, Contractor has agreed to request Guarantor
to guarantee its performance under the Agreement in lieu of
Contractor providing a performance bond to assure its
performance;
WHEREAS, Owner has agreed to accept this Guaranty
from Guarantor in lieu of such performance bond; and
WHEREAS, Guarantor has agreed to guarantee
the obligations of Contractor as described in this
Guaranty.
NOW, THEREFORE, in consideration of the mutual
covenants arid premises contained herein, Owner and
Guarantor agree as follows:
SECTION 1. Guaranty. Guarantor hereby irrevocably and unconditionally
guarantees the punctual performance of each and every obligation of
Contractor under the Agreement (including, without limitation, under
Sections 5.02, 5.04, 8.06 (b) and 9.01 thereof) and agrees that if
for any reason whatsoever Contractor shall fail or be unable duly,
punctually and fully to perform any such obligation under the
Agreement, Guarantor shall forthwith perform each and every such
obligation, or cause each such obligation to be performed, without
regard to any exercise or nonexercise by Owner of any right, remedy,
power or privilege under or in respect of the Agreement against
Contractor. Guarantor's obligations shall be subject to Owner
providing Guarantor written notice (unless the giving of such notice
is prevented by applicable law or court order of any default of
Contractor in performing any obligation f or which Owner i s seeking
Guarantor's guaranty. Guarantor shall cure such default within 15
business days after receipt by Guarantor of written notice thereof
specifying the nature of such default. Should a default that cannot
be cured by the payment of money reasonably require more than 15
business days to cure, Guarantor shall commence to cure such default
and diligently prosecute such cure to completion. In addition,
Guarantor agrees to reimburse Owner on demand for any and all expenses
(including counsel fees and expenses) reasonably incurred by Owner in
enforcing or attempting to enforce any rights under this
Guaranty.
SECTION 2. Guaranty Absolute. The liability of
Guarantor under this Guaranty with respect to the guaranteed
obligations shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the
Agreement or any other agreement or instrument relating
thereto; provided, that this clause shall not ever have
the effect of increasing the liability of the Guarantor
beyond the obligations of the Contractor set forth in the
Agreement, assuming, for purposes of establishing Guarantor's
liability hereunder, that such obligations are valid
and enforceable obligations of Contractor;
(b) any amendment to, waiver of or consent to departure
from, or failure to exercise any right, remedy,
power or privilege under or in respect of, the
Agreement, unless Owner, and any assignee of Owner
pursuant to Section ll hereof, shall expressly
agree otherwise in writing, and then only to the
extent that such liability is released in such
written agreement;
(c) any exchange, release or nonperfection of any
collateral, or any release or amendment or waiver of
or consent to departure from any other guaranty of
or security for the performance of all any of the
obligations of Contractor under the Agreement;
(d) the insolvency of Contractor or any other guarantor or
any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership,
reorganization, arrangement, dissolution or
liquidation of Contractor or any other guarantor or
any defense which Contractor or any other guarantor
may have by reason of the order, decree or decision
of any court or administrative body resulting from
any such proceeding;
(e) any change in ownership of Contractor or any change,
whether direct or indirect, in Guarantor's
relationship to Contractor, including, without
limitation, any such change by reason of any merger
or any sale, transfer, issuance, or other
disposition of any stock of Contractor, Guarantor or
any other entity; and
(f) any other circumstance of a similar or different
nature that might otherwise constitute a defense
available to Guarantor as a guarantor.
Except as provided above in this Section 2, in no
event shall the obligations of Guarantor hereunder exceed the
obligations Guarantor would have had if it were itself a party
to the Agreement, and Guarantor shall have all rights and
defenses of "Contractor" under the terms of the Agreement.
This Guaranty shall continue to be effective, or be reinstated,
as the case may be, if at any time any payment made, or any
part thereof, to Owner by Contractor under the Agreement or by
Guarantor hereunder is ordered rescinded or must otherwise be
returned by Owner to Contractor or its representative for any
reason, including, without limitation, upon the insolvency,
bankruptcy, reorganization, dissolution or liquidation of
Contractor or otherwise, all as though such payment had not
been made.
SECTION 3. Waiver. Guarantor hereby waives
promptness, diligence, notice of acceptance and any other
notice with respect to this Guaranty and any requirement that
the Owner exhaust any right or take any action against or with
respect to Contractor or any other person or entity or any
property.
SECTION 4. Consent to Jurisdiction: Waiver of
Immunities. (a) Guarantor hereby irrevocably submits to the
jurisdiction of any State or Federal court sitting in the
State of New York, United States of America in any action or
proceeding arising out of or relating to this Guaranty, and
the Guarantor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and
determined in such State or Federal court. Guarantor hereby
irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. Guarantor hereby irrevocably
consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process
to Guarantor at its address specified in Section 9 hereof .
Guarantor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
permitted by law.
(b) Nothing in this Section shall affect the right
of Owner to serve legal process in any other manner permitted
by law or affect the right of Owner to bring any action or
proceeding against Guarantor or its property in the courts of
any other jurisdiction.
(c) To the extent that Guarantor has or hereafter
may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its
property, Guarantor hereby irrevocably waives such immunity
in respect of its obligations under this Guaranty.
SECTION 5. Representations. Guarantor hereby represents as follows:
(a) Guarantor (i) is a duly organized and validly
existing corporation in good standing under the Laws of
Delaware, and (ii) has the corporate power and authority to
own its property and to transact the business in which it is
engaged:
(b) Guarantor has the corporate power to execute,
deliver and carry out the terms and provisions of this
Guaranty and has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Guaranty. This Guaranty has been duly executed and delivered
by Guarantor and constitutes the legal, valid and binding
obligation of Guarantor enforceable against it in accordance
with its terms:
(c) Neither the execution, delivery or performance
by Guarantor of this Guaranty nor the consummation of the
transactions herein contemplated, nor compliance with the terms
and provisions hereof will (i) violate any provision of the
charter, by-laws or like organization documents of Guarantor;
or (ii) in any manner that would have a material adverse
effect on the Guarantor or on its ability to perform its
obligations hereunder, contravene any applicable provision of
any law, statute, rule, regulation, order, writ, in junction or
decree of any court or governmental instrumentality or
authority or requires the authorization or approval of or any
filing with any such instrumentality or authority or (iii) will
conflict or be inconsistent with, or result in any breach-of,
any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose] any lien
upon or assignment of any of the property or assets of
Guarantor pursuant to the terms of any agreement or other
instrument to which Guarantor is a party or by which it or any
of its property or assets is bound or to which it is subject;
and
(d) There are no actions, suits or proceedings
pending or, to the best of the knowledge of Guarantor (without
having made any independent inquiry in respect thereof) ,
threatened against or affecting Guarantor before any court or
before any governmental or administrative body or agency of
which there is a likelihood that the outcome will materially
and adversely affect its ability to perform its obligations
hereunder.
SECTION 6. No Subornation. Notwithstanding any payment or
payments made by Guarantor hereunder or any set-off or
application of funds of Guarantor by Owner, Guarantor shall
not, until all of Contractor's obligations under the
Agreement (including Warranty obligations) shall have been
fulfilled, (a) be entitled to be subrogated to any of the
rights of Owner against Contractor or any other guarantor
or in any collateral security or guaranty or right of
offset held by Owner for the performance and payment of all
of the obligations of Contractor under the Agreement, or
(b) seek any reimbursement or contribution from Contractor
or any other guarantor in respect of any payment, set-off
or application of funds made by Guarantor hereunder.
SECTION 7. No Petition. Guarantor shall not,
without the prior consent of Owner, (i) voluntarily commence,
or join with or solicit any other person or entity in
commencing, any case or other proceeding seeking liquidation,
reorganization or other relief with respect to Contractor or
its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of Contractor, or (ii) authorize or permit Contractor
to (A) confluence any such proceeding, or (B) consent to any
such relief or to the appointment of any such case or
proceeding.
SECTION 8. Amendments. No amendment or waiver of
any provision of this Guaranty nor consent t o any departure
by Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by Owner (including
any Person becoming an "Owner" hereunder pursuant to Section
11), and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose of which
given.
SECTI0N 9. Addresses for Notices. All notices and
other communication provided for hereunder shall be writing
and, if to Guarantor, mailed or communicated by facsimile or
delivered to it, addressed to:
Raytheon Company
x00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
if to Owner, mailed or delivered to it, addressed to it at its
address specified in the Agreement (and as to any Person
becoming an "Owner" hereunder pursuant to Section 11, at such
address as shall be specified by such Person), or as to each
party at such other address as shall be designated by such
party in a written notice to the other party. All such
notices and other communications shall, when mailed or
communicated by facsimile transmission, respectively, be
effective when deposited in the mails addressed as aforesaid
or when such facsimile transmission is confirmed.
SECTION 10. No Waiver; Remedies. No failure on the
part of Owner to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise thereof or the exercise of any
other right operate as a waiver thereof. The remedies herein
provided are cumulative and are not exclusive of any remedies
provided by law.
SECTION 11. Continuing Guaranty; Assignments. This Guaranty
shall be construed as a continuing, absolute and unconditional
Guaranty of performance, and, except as specifically provided in
Section 1 hereof, the obligations of Guarantor hereunder shall
not be conditioned or contingent upon the pursuit by Owner at
any time of any right or remedy against Contractor or against
any other person or entity which may be or become liable in
respect of all or any part of the obligations of Contractor
under the Agreement or against any collateral security or
guaranty therefor. This Guaranty shall (i) remain in full force
and effect until satisfaction in full of all Contractor's
obligations under the Agreement, (ii) be binding upon Guarantor
and its successors and ( iii ) inure to the benefit of and be
enforceable by Owner and its successors, transferees and
assigns. Except as may be necessary to fulfill its obligations
hereunder in a timely manner, and with the consent of Owner, not
to be unreasonably withheld or delayed, Guarantor shall have no
right, power or authority to delegate a1 or any of its
obligations hereunder; provided that upon any such delegation
permitted hereunder, Guarantor shall nevertheless remain liable
for the performance of any obligations so delegated. Guarantor
hereby expressly agrees that Owner may assign all or any of its
rights hereunder without Guarantor's approval to any person or
entity to which it has assigned its rights under the Agreement
(including, without limitation, the Construction Lender referred
to in the Agreement and/or any security agent acting on its
behalf) and that any such assignee of Owner may similarly further
assign such rights assigned to it. Owner or any such assignee
shall notify Guarantor in writing of each such assignment (other
than to Construction Lender and/or any security agent acting on
its behalf) made pursuant to this Section 11. In the event of
any such assignment, references herein to ''Owner" shall be
deemed to include references to the relevant assignee. Guarantor
shall not be obligated to render performance under this Guaranty
to any person other than Owner unless Guarantor shall have first
received notice of the assignment of this Guaranty by Owner to
such person.
SECTION 12. Waiver of Jury Trial. Guarantor hereby
irrevocably and unconditionally waives any and all right to
trial by jury in any action, suit or counterclaim arising in
connection with this Guaranty.
SECTION 13. Governing Law. This Guaranty shall be
governed by, and construed and interpreted in accordance
with, the laws of the State of New York.
SECTION 14. Severabilitv. If any provision hereof
is invalid or unenforceable in any jurisdiction, the other
provisions hereof shall remain in full force and effect in
such jurisdiction and the remaining provisions hereof shall be
construed in order to carry out the provisions hereof. The
invalidity or unenforceability of any provision of this
Guaranty in any jurisdiction shall not affect the validity or
enforceability of any such provision in any other
jurisdiction.
SECTION 15. Miscellaneous. Any suit under this
Guaranty must be instituted within two years of the date of
Final Acceptance. No right or action shall accrue hereunder
to or for the use or benefit of any Person other than the
Owner, Construction Lender (any security agent acting on its
behalf) and their respective successors and assigns, but
only then to the extent and in the manner permitted hereby.
This Guaranty No. l787 supersedes and replaces Guarantor's
Guaranty No. 1613 dated as of December 2, 1993 between Guarantor
and Owner, as amended on May 18, 1994.
IN WITNESS WHEREOF, Guarantor has caused this
Guaranty to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
RAYTHEON COMPANY
By_____________________
Name: Xxx X. Xxxxx
Title: President