GUARANTY
This GUARANTY, dated September 12, 1997 (this "Guaranty"), is
made by NRG ENERGY, INC., a Delaware corporation ("Guarantor"), in favor of
CREDIT LYONNAIS NEW YORK BRANCH, as agent for the Construction/Acquisition
Lenders (as defined below) (in such capacity, the "Construction/Acquisition
Agent"), and each lender that is or becomes a Construction/Acquisition Lender
pursuant to the Loan Agreement (as defined below) (collectively, the
"Construction/Acquisition Lenders").
RECITALS
WHEREAS, Minnesota Methane, L.L.C., a Wyoming limited
liability company ("Borrower"), the Construction/Acquisition Agent, the
Construction/Acquisition Lenders and the other parties thereto have entered
into a Construction, Acquisition and Term Loan Agreement, dated the date hereof
(as the same may be amended, modified or supplemented, the "Loan Agreement"),
pursuant to which the Construction/Acquisition Lenders have agreed to make
certain loans to Borrower for the purpose, among others, of financing the
construction or acquisition of the Projects (as defined in the Loan Agreement);
WHEREAS, Borrower is one-half owned by NEO Corporation, a
Delaware corporation ("NEO"), and NEO is wholly-owned by Guarantor;
WHEREAS, Guarantor will benefit, directly and indirectly,
from the making of the loans by the Construction/Acquisition Lenders to
Borrower; and
WHEREAS, it is a condition precedent to the obligations of
the Construction/Acquisition Lenders under the Loan Agreement that certain
obligations of Borrower thereunder be guaranteed by Guarantor as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Guarantor, intending to be legally bound, hereby
agrees for the benefit of the Construction/Acquisition Agent and the
Construction/Acquisition Lenders as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Guaranty, the terms
defined in the preamble and recitals hereto shall have the respective meanings
specified therein. Capitalized terms used and not otherwise defined herein
shall have the meanings set forth in the Loan Agreement and such meanings are
incorporated herein by reference. The following term shall have the following
meaning:
"Obligations" means all obligations and liabilities of
Borrower to the Construction/Acquisition Agent and the Construction/Acquisition
Lenders, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under or in connection
with any Construction/Acquisition Loan made pursuant to the Loan Agreement or
any document made, delivered or given in connection therewith, including
without limitation the principal of, premium (if any) and interest on the
Construction/Acquisition Loan Note and the indebtedness represented thereby,
whether on account of principal, premium (if any), interest, reimbursement
obligations, fees (including without limitation the Construction/Acquisition
Loan Availability Fee), indemnities, costs and expenses (including without
limitation all costs and expenses required to be paid by Borrower pursuant to
Sections 2.2(b), 2.5 and 8.11 of the Loan Agreement) or otherwise (including
without limitation such interest or other charges as would have accrued on any
portion of the Obligations but for the commencement of any bankruptcy or
insolvency proceedings), it being the intention of Guarantor, the
Construction/Acquisition Agent and the Construction/Acquisition Lenders that
the Obligations that are guaranteed by Guarantor pursuant to this Guaranty be
determined without regard to any rule of law or order that may relieve Borrower
of any portion of such Obligations. Construction/Acquisition Loans that have
converted to Term Loans pursuant to the Loan Agreement are not Obligations.
ARTICLE II
GUARANTY
Section 2.1 Unconditional Guaranty. Guarantor hereby
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, to the Construction/Acquisition Agent and the
Construction/Acquisition Lenders the prompt, punctual and complete payment when
due, whether at the stated maturity, on acceleration or otherwise, and the
prompt, punctual and complete performance when owing, of the Obligations,
irrespective of (a) the validity, legality or enforceability of the Obligations
or any other agreement or instrument relating thereto or (b) any other
circumstance that might otherwise constitute a defense to this Guaranty;
provided, that this Guaranty shall be limited to the maximum amount that may be
guaranteed by Guarantor without this Guaranty being rendered or deemed void or
voidable, whether for fraudulent conveyance or transfer or otherwise, under
applicable law. Each and every default
in the payment or performance of the Obligations shall give rise to a separate
cause of action hereunder and separate suits may be brought hereunder as each
cause of action arises.
Section 2.2 No Subrogation. Notwithstanding any payment or
payments made by Guarantor hereunder or any set-off or application of funds of
Guarantor by the Construction/Acquisition Agent or the Construction/Acquisition
Lenders, Guarantor hereby waives any and all rights to which it may be entitled,
by operation of law or otherwise, upon making any payment hereunder (a) to be
subrogated to any of the rights of the Construction/Acquisition Agent or the
Construction/Acquisition Lenders against Borrower or any other Person or in any
Collateral or other collateral security or guaranty or right of offset held by
the Construction/Acquisition Agent or the Construction/Acquisition Lenders for
the payment of any Obligations or (b) to seek any reimbursement or contribution
from Borrower or any other Person in respect to any payment, set-off or
application of funds made by or for the account of Guarantor hereunder.
Section 2.3 No Effect on Guaranty. The obligations of
Guarantor under this Guaranty shall not be altered, limited, impaired or
otherwise affected by:
(a) any rescission of any demand for payment or
performance of any of the Obligations or any failure by the
Construction/Acquisition Agent or the Construction/Acquisition Lenders
to make any such demand on Borrower, Guarantor or any other Person or
to collect any payment from Borrower, Guarantor or any other Person or
any release of Borrower or any other Person;
(b) any renewal, extension, modification, amendment,
acceleration, compromise, waiver, indulgence, rescission, discharge,
surrender or release, in whole or in part, of the Loan Agreement or
the Obligations or any other instrument or agreement evidencing,
relating to, securing or guaranteeing any of the Obligations, or the
liability of any party to any of the foregoing or for any part thereof
or any collateral security therefor or guaranty thereof;
(c) the validity, legality or enforceability of any
of the Obligations or of the Loan Agreement or any other instrument or
agreement evidencing, relating to, securing or guaranteeing any of the
Obligations;
(d) any failure by the Construction/Acquisition
Agent or the Construction/Acquisition Lenders to protect, secure,
perfect, record, insure or enforce any Security Document or
Collateral;
(e) any act or omission of the
Construction/Acquisition Agent or the Construction/Acquisition Lenders
relating in any way to the Obligations or to Borrower, including
without limitation any failure to bring an action against any party
liable on the Obligations, or any party liable on any guaranty of the
Obligations, or any party that has furnished security for the
Obligations, or to resort to any collateral or collateral of any
other Person;
(f) any defense, set-off or counterclaim that may at
any time be available to or be asserted by or on behalf of Borrower,
Guarantor or any other Person against the Construction/Acquisition
Agent or the Construction/Acquisition Lenders or any circumstance that
constitutes, or might be construed to constitute, an equitable or
legal discharge of Borrower, Guarantor or any other Person for any of
the Obligations, in bankruptcy or in any other instance;
(g) any proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Borrower, Guarantor or any other Person
or any defense that Borrower 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;
(h) any change, whether direct or indirect, in
Guarantor's relationship to Borrower, including without limitation any
such change by reason of any merger or any sale, transfer, issuance or
other disposition of any stock of, membership interest in or other
equity interest in Borrower, Guarantor or any other Person;
(i) the absence of any notice to, or knowledge by,
Guarantor of the existence or occurrence of any matter or event set
forth in this Section 2.3;
(j) any taking, exchange, release or non-perfection
or any manner of application of collateral or proceeds thereof or any
manner of sale or other disposition of collateral;
(k) any failure to pay any tax that may be payable
with respect to the payment of the Obligations by Guarantor or any
failure to obtain any authorization or approval from or other action
by, or to notify or file with, any Governmental Instrumentality
required in connection with the payment of the Obligations by
Guarantor;
(l) the termination of the legal existence of
Borrower or Guarantor, or the termination of any legal obligation of
Borrower to discharge the Obligations undertaken or purported to be
undertaken by it or on its behalf (other than to the extent of payment
or performance of the Obligations by or on behalf of Borrower); or
(m) any impossibility or impracticality of
performance, illegality, force majeure, any action or nonaction of
government, or any other circumstance that might otherwise constitute
a legal or equitable defense available to or resulting in the discharge
of a surety or guarantor or any other circumstance, event or happening
whatsoever, whether foreseen or unforeseen and whether similar or
dissimilar to anything referred to above in this Section 2.3.
Section 2.4 Continuing Guaranty. Guarantor further agrees
that this Guaranty constitutes a present, absolute and continuing guaranty of
prompt, punctual and complete payment and performance when due of the
Obligations, and not of collection only, and waives any right to require that
any resort be had by the Construction/Acquisition Agent or the
Construction/Acquisition Lenders, after demand for such payment being made upon
Borrower by the Construction/Acquisition Agent or the Construction/Acquisition
Lenders, to the Construction/Acquisition Agent's and the
Construction/Acquisition Lenders' rights against any other Person, or any other
right or remedy available to the Construction/Acquisition Agent or the
Construction/Acquisition Lenders by contract, applicable law or otherwise. The
obligations of Guarantor under this Guaranty are unconditional, direct and
completely independent of the obligations of any other Person and shall not be
conditioned or contingent upon the pursuit by the Construction/Acquisition
Agent or the Construction/Acquisition Lenders at any time of any right or
remedy against Borrower or against any other Person that may be or become
liable in respect of all or any part of the Obligations or against any
collateral security or guaranty therefor. A separate cause of action or
separate causes of action may be brought and prosecuted against Guarantor
without the necessity of joining Borrower or any other party or previously
proceeding with or exhausting any other remedy against any other Person who
might have become liable for the Obligations or any part thereof or of
realizing upon any security held by or for the benefit of the
Construction/Acquisition Agent and the Construction/Acquisition Lenders.
Section 2.5 Obligations Unconditional. The obligations of
Guarantor under this Guaranty shall be absolute and unconditional irrespective
of (i) any lack of validity of the Obligations or any other agreement or
instrument relating thereto or (ii) any other circumstance that might otherwise
constitute a defense to this Guaranty and shall remain in full force and effect
until the
Obligations have been indefeasibly satisfied by payment and performance in
full, or release by the Construction/Acquisition Agent and the
Construction/Acquisition Lenders and, to the extent permitted by law, such
Obligations shall not be affected, modified, released or impaired by any state
of facts or the happening from time to time of any event whatsoever, whether or
not with notice to, or the consent of, Guarantor.
Section 2.6 Term and Reinstatement of Guaranty. This Guaranty
will terminate on the date that is the later of (i) October 30, 1998 and (ii)
the date on which all Obligations (including without limitation all default
interest thereon) have been indefeasibly paid in full. Notwithstanding the
foregoing, this Guaranty shall continue in full force and effect, or be
reinstated, as the case may be, if at any time any payment or performance
hereunder, or any part thereof, of the Obligations is subsequently invalidated,
declared to be fraudulent or preferential, avoided, rescinded, set aside or
must otherwise be restored or returned by the Construction/Acquisition Agent or
the Construction/Acquisition Lenders or any other Person to Borrower or its
representatives or to a trustee, receiver, assignee for the benefit of
creditors or any other party under any bankruptcy act or code, state or federal
law or common law or equitable doctrine, for any reason including as a result
of any insolvency, bankruptcy or reorganization proceeding with respect to
Borrower or Guarantor, all as though such payment had not been made.
Section 2.7 Financial Condition of Borrower has no Effect on
Guaranty. Borrower may borrow the Loans from the Construction/Acquisition
Lenders without notice to or authorization from Guarantor regardless of the
financial or other condition of Borrower at the time of such borrowing. None of
the Construction/Acquisition Agent or the Construction/Acquisition Lenders
shall have any obligation to disclose or discuss with Guarantor its assessment
of the financial or other condition of Borrower. Guarantor confirms that no
representation has been made to the Guarantor concerning the financial
condition of Borrower by the Construction/Acquisition Agent or the
Construction/Acquisition Lenders.
Section 2.8 No Waiver or Set-Off. No act of commission or
omission of any kind or at any time upon the part of Borrower, any of its
successors and assigns or the Construction/Acquisition Agent or the
Construction/Acquisition Lenders in respect of any matter whatsoever shall in
any way impair the rights of the Construction/Acquisition Agent and the
Construction/Acquisition Lenders to enforce any right, power or benefit under
this Guaranty, and no set-off, counterclaim, reduction or diminution of any
obligation, or any defense of a surety or guarantor that Guarantor have or may
have against Borrower, the Construction/Acquisition Agent, the
Construction/Acquisition
Lenders or any assignee or successor thereof shall be available hereunder to
Guarantor.
Section 2.9 Demands for Payment; Payment. Demands by the
Construction/Acquisition Agent for payment of amounts due pursuant to Sections
2.1 and 7.1 may be made on any number of occasions and without any demand for
payment given to Borrower. Each demand shall be in writing, shall state the
amount owing and shall be effective as of the date given in accordance with
Section 7.6. Within five Business Days of giving such a demand in accordance
with Section 7.6, dated and signed by an authorized officer of the
Construction/Acquisition Agent setting forth the amount of the Obligations at
the time owing, Guarantor shall make such payment to or as directed to the
Construction/Acquisition Agent and such payment shall not be withheld for any
reason.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties. Guarantor
represents and warrants that as of the date hereof:
(a) It is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware and
has the corporate power, authority and legal right to execute, deliver
and carry out the terms and provisions of this Guaranty.
(b) The execution, delivery and performance by
Guarantor of this Guaranty have been duly authorized by all necessary
corporate action.
(c) The execution, delivery and performance by
Guarantor of this Guaranty do not and will not (i) require any consent
or approval of any shareholder of Guarantor or Government
Instrumentality that has not been obtained and which remains valid,
(ii) violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in
effect having applicability to Guarantor, or (iii) result in a breach
of or constitute a default under any material agreement binding upon
Guarantor.
(d) This Guaranty constitutes a valid and legally
binding agreement of Guarantor, enforceable in accordance with its
terms 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.
(e) The audited consolidated balance sheet of
Guarantor and its subsidiaries as of December 31, 1996 and the related
audited consolidated statements of income, cash flows and changes in
stockholders' equity accounts for the fiscal year then ended and the
unaudited consolidated balance sheet of Guarantor and its subsidiaries
as of June 30, 1997 and the related unaudited consolidated statements
of income, cash flows and changes in stockholders' equity accounts for
the six months then ended, certified by the chief financial or
accounting officer of Guarantor, copies of which have been delivered
to the Construction/Acquisition Agent, fairly present, in conformity
with GAAP except as otherwise expressly noted therein and except with
respect to footnotes in all unaudited financial statements, the
consolidated financial position of Guarantor and its subsidiaries as
of such dates and their consolidated results of operations and changes
in financial position for such fiscal periods, subject (in the case of
the unaudited balance sheet and statements) to changes resulting from
audit and normal year-end adjustments.
(f) Since December 31, 1996, there has been no
material adverse change in the business, consolidated financial
position or consolidated results of operations of Guarantor and its
subsidiaries, considered as a whole.
(g) There is no action, suit or proceeding pending
against Guarantor or any of its subsidiaries, or to the knowledge of
Guarantor threatened against Guarantor or any of its subsidiaries,
before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse
decision that could materially adversely affect the business,
consolidated financial position or consolidated results of operations
of Guarantor and its subsidiaries taken as a whole or that in any
manner draws into question the validity of this Guaranty or any other
Document to which Guarantor is or will be a party.
(h) Guarantor and its subsidiaries have filed or
caused to be filed all United States federal income tax returns and
all other material domestic tax returns which to the knowledge of
Guarantor are required to be filed by them and have paid or provided
for the payment of, before the same become delinquent, all taxes due
pursuant to such returns or pursuant to any assessment received by
Guarantor or any subsidiary, other than those taxes contested in good
faith by appropriate proceedings. The charges, accruals and reserves
on the books of Guarantor and its subsidiaries
in respect of taxes are, in the reasonable opinion of Guarantor,
adequate to the extent required by GAAP.
ARTICLE IV
AFFIRMATIVE COVENANTS
Section 4.1 Affirmative Covenants. Guarantor covenants and
agrees that it will, unless the Construction/Acquisition Lenders otherwise
consent in writing:
(a) Reporting Requirements. Furnish to the
Construction/Acquisition Agent and each Construction/Acquisition
Lender:
(i) (A) within 60 days after the end of
each of the first three fiscal quarters of each fiscal year
of Guarantor, a copy of Guarantor's quarterly unaudited
consolidated financial statements as of the end of and for
such quarter, and (B) within 120 days after the end of each
fiscal year of Guarantor, a copy of Guarantor's annual
audited consolidated financial statements as of the end of
and for such year;
(ii) simultaneously with the delivery of
each of the annual or quarterly reports referred to in
paragraph (i) above, a certificate of the chief financial
officer or chief accounting officer of Guarantor in a form
acceptable to the Construction/Acquisition Agent stating
whether there exists on the date of such certificate any
Event of Default or event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default,
and, if so, setting forth the details thereof and the action
which Guarantor has taken and proposes to take with respect
thereto;
(iii) as soon as possible and in any event
within five days after a change in, or issuance of, any
rating of any of the Guarantor's senior unsecured long-term
debt by Standard & Poor's Rating Services or Xxxxx'x
Investors Services, Inc., notice to the
Construction/Acquisition Agent of such change;
(iv) as soon as possible and in any event
within five days after an executive officer of Guarantor
obtaining knowledge thereof, notice of the occurrence of any
Event of Default or any event which, with the giving of
notice or lapse of time, or both, would constitute an Event
of Default, continuing on the date of such notice, and a
statement of the chief financial officer of Guarantor
setting forth details of such Event of Default or event and
the action that Guarantor has taken and proposes to take with
respect thereto;
(v) such other information respecting the
condition or operations, financial or otherwise, of Guarantor
or any of its subsidiaries as any Construction/Acquisition
Lender through the Construction/Acquisition Agent may from
time to time reasonably request.
(b) Compliance with Laws, Etc. Comply, and cause
each of its subsidiaries to comply, with all applicable laws, rules,
regulations and orders to the extent noncompliance therewith would
have a material adverse effect on Guarantor and its subsidiaries taken
as a whole, such compliance to include without limitation compliance
with Environmental Laws and the paying before the same become
delinquent of all taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent contested in good
faith.
(c) Maintenance of Insurance. Maintain insurance,
and cause Borrower and the Affiliates to maintain, with responsible
and reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties as Guarantor or such
other Person.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of Borrower and the Affiliates
to preserve and maintain, its legal existence, rights and franchises;
provided, that this Section 4.1(d) shall not apply to any transaction
or matter permitted by Section 5.1(a) or (b); provided, that
Guarantor, Borrower and the Affiliates shall not be required to
preserve any right or franchise if Guarantor or such other Person
reasonably determines that the preservation thereof is no longer
desirable in the conduct of the business of Guarantor or such other
Person, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the
Construction/Acquisition Lenders.
(e) Visitation Rights. At any reasonable time and
from time to time, after reasonable notice, permit the
Construction/Acquisition Agent or any of the Construction/Acquisition
Lenders or any agent or representative thereof to examine the records
and books of account of, and visit the properties of, Guarantor,
Borrower and the Affiliates, and to discuss the affairs, finances and
accounts of Guarantor and any of such other Persons with any of their
respective officers or directors.
ARTICLE V
NEGATIVE COVENANTS
Section 5.1 Negative Covenants. Guarantor will not at any
time, without the prior written consent of the Construction/Acquisition Lenders:
(a) Mergers, Etc. Merge or consolidate with or into
any Person unless (i) Guarantor is the survivor or (ii) the surviving
Person, if not Guarantor, is organized under the laws of the United
States or a state thereof and assumes all obligations of Guarantor
under this Guaranty and executes and delivers to the
Construction/Acquisition Agent documents reasonably satisfactorily in
form and substance to the Construction/Acquisition Agent pursuant to
which such Person acknowledges and assumes all obligations of
Guarantor hereunder; provided, in each case that immediately after
giving effect to such proposed transaction, no Event of Default or
event which, with the giving of notice or the lapse of time, or both,
would constitute an Event of Default would exist or result.
(b) Disposition of Assets. Lease, sell, transfer or
otherwise dispose of, voluntarily or involuntarily, all or
substantially all of its assets.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Events of Default. The occurrence and continuance
of any of the following events shall constitute an "Event of Default":
(a) Any representation or warranty made by Guarantor
or any of its officers under or in connection with any Document proves
to have been incorrect in any material respect when made or deemed
made.
(b) Guarantor fails to perform or observe any term,
covenant or agreement contained in Articles IV and V or fails to
perform or observe any other term, covenant or agreement contained in
any Document on its Part to be performed or observed and such failure
remains unremedied for five (5) days after the occurrence thereof;
provided, that if such failure can not be remedied within such five
(5) day period and if Guarantor is diligently seeking to remedy such
failure, and if such failure is reasonably likely to be remedied
within thirty (30) days after the initial five
(5) day period, then Guarantor shall have an additional thirty (30)
days to remedy such failure.
(c) Guarantor or any of its subsidiaries fails to
pay any principal of or premium or interest on any Indebtedness which
is outstanding in the principal amount of at least $1,000,000 in the
aggregate when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure continues after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness; or any other event occurs or condition exists under any
agreement or instrument relating to any such Indebtedness and
continues after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to accelerate the maturity of such Indebtedness; or any such
Indebtedness is declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or as
a result of the giving of notice of a voluntary prepayment), prior to
the stated maturity thereof.
(d) Guarantor or any of its subsidiaries generally
fails to pay its debts as such debts become due, or admits in writing
its inability to pay its debts generally, or makes a general
assignment for the benefit of creditors; or any proceeding is
instituted by or against Guarantor or any of its subsidiaries seeking
to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for the relief or the appointment
of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), remains
undismissed or unstayed for a period of 60 days; or Guarantor or any
of its subsidiaries takes any corporate action to authorize any of the
actions set forth above in this paragraph (d).
(e) Any judgment, decree or order for the payment of
money in excess of $1,000,000 is rendered against Guarantor or any of
its subsidiaries and remains unsatisfied and either (i) enforcement
proceedings have been commenced by any creditor upon such judgment,
decree or order or (ii) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment, decree or
order, by reason of a pending appeal or otherwise, shall not be in
effect.
(f) Any provision of this Guaranty for any reason is
not or ceases to be valid and binding on Guarantor or Guarantor so
states in writing.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Costs and Expenses. Except as herein otherwise
expressly provided, Guarantor covenants and agrees to pay or reimburse the
Construction/Acquisition Agent and the Construction/Acquisition Lenders upon
request for all reasonable expenses, disbursements, fees, costs and commissions
incurred or made by the Construction/Acquisition Agents or the
Construction/Acquisition Lenders (including the reasonable compensation and
expenses and disbursements of counsel and of persons not regularly in their
employ) in connection with (i) the enforcement of or attempt to enforce, or
collection of or attempt to collect any amount due under, this Guaranty or
(ii) any waiver, extension, amendment or modification of any provision of this
Guaranty.
Section 7.2 Election of Remedies. Each and every right,
power and remedy herein given to the Construction/Acquisition Agent and the
Construction/Acquisition Lenders, or otherwise existing, shall be cumulative
and not exclusive, and shall be in addition to all other rights, powers and
remedies now or hereafter granted or otherwise existing. Each and every right,
power and remedy, whether specifically herein given or otherwise existing, may
be exercised from time to time and as often and in such order as may be deemed
expedient by the Construction/Acquisition Agent or the Construction/Acquisition
Lenders.
Section 7.3 Effect of Delay or Omission to Pursue Remedy. No
single or partial waiver by the Construction/Acquisition Agent or the
Construction/Acquisition Lenders of any right, power or remedy, or delay or
omission by the Construction/Acquisition Agent or the Construction/Acquisition
Lenders in the exercise of any right, power or remedy shall impair any such
right, power or remedy or operate as a waiver thereof or of any other right,
power or remedy then or thereafter existing. Any waiver given by the
Construction/Acquisition Agent or the Construction/Acquisition Lenders of any
right, power or remedy in any one instance shall only be effective in that
specific instance and only for the purpose for which given, and will not be
construed as a waiver of any right, power or remedy on any future occasion.
Section 7.4 Guarantor's Waivers. Guarantor waives any and
all promptness, diligence, notice of the creation or acceptance, any other
notice, renewal, extension or accrual of any of the Obligations and notice of
or proof of
reliance by the Construction/Acquisition Agent or the Construction/Acquisition
Lenders upon this Guaranty or acceptance of this Guaranty or any action taken
or omitted in reliance hereon. The Obligations, and any of them, shall
conclusively be deemed to have been created, contracted, incurred, renewed,
extended, amended or waived in reliance upon this Guaranty and all dealings
among Guarantor, Borrower, the Construction/Acquisition Agent and the
Construction/Acquisition Lenders shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guaranty.
Guarantor further waives diligence, presentment, demand for payment or
performance, notice, any requirement that any right or power be exhausted or
any action be taken against Borrower or Guarantor or against any Collateral,
protest of all promissory notes or other instruments included in or evidencing
any of the Obligations or Collateral, and all other demands in connection with
the delivery, acceptance, performance, default or enforcement of any such
promissory note or other instrument or this Guaranty or any other requirement
that the Construction/Acquisition Agent or the Construction/Acquisition Lenders
protect, secure, perfect or insure any security interest or lien on any
property subject thereto or exhaust any right or take any action against
Borrower, Guarantor or any other Person, or any Collateral.
Section 7.5 Amendment. This Guaranty may not be modified,
amended, terminated or revoked, in whole or in part, except by an agreement in
writing signed by the Construction/Acquisition Agent and Guarantor. No waiver
of any term, covenant or provision of this Guaranty, or consent given
hereunder, shall be effective unless given in writing by the
Construction/Acquisition Agent.
Section 7.6 Notices. Unless otherwise specifically provided
herein, any notice or other communication required or permitted to be given
shall be in writing addressed to the respective party as set forth below and
may be personally served, telecopied or sent by overnight courier service or
United States mail (return receipt requested) and shall be deemed to have been
given (a) if delivered in person, when delivered; (b) if delivered by
telecopy, on the date of transmission if transmitted on a Business Day before
4:00 p.m. (New York, New York time) or, if not, on the next succeeding Business
Day; (c) if delivered by reputable overnight courier, two (2) days after
delivery to such courier properly addressed; or (d) if by U.S. Mail, four (4)
Business Days after deposit in the United States mail, with postage prepaid and
properly addressed.
Notices shall be addressed as follows:
If to Guarantor:
NRG ENERGY, INC.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Director Finance
Telecopy: (000) 000-0000
With a copy to:
NRG ENERGY, INC.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
If to the Construction/Acquisition Agent or any
Construction/Acquisition Lender:
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
XXXXXXXXXX & XXXXX LLP
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxxxx X. Xxxxxx, Xx., Esq.
Telecopy: (000) 000-0000
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section 7.6. A notice not given as provided above shall,
if it is in writing, be deemed given if and when actually received by the
party to whom given.
Section 7.7 Successors and Assigns. This Guaranty shall be
binding upon and shall inure to the benefit of Guarantor, the
Construction/Acquisition Agent and the Construction/Acquisition Lenders and
their respective successors and permitted assigns. Notwithstanding the
foregoing, Guarantor shall have no right to assign its rights or obligations
hereunder (whether by operation of law or otherwise) without the prior written
consent of the Construction/Acquisition Agent and any purported transfer
without such prior written consent shall be void. No assignment by Guarantor of
any rights or obligations under this Guaranty shall release Guarantor therefrom
unless the
Construction/Acquisition Agent has consented to such release in a writing
specifically referring to the obligation from which Guarantor is to be
released.
Section 7.8 Headings. The article and section headings used
in this Guaranty are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
Section 7.9 CONSENT TO JURISDICTION. ALL LEGAL ACTIONS OR
PROCEEDINGS BROUGHT AGAINST GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY GUARANTOR ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES THE JURISDICTION OF THE AFORESAID
COURTS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS GUARANTY. GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY
ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
OR ANY SIMILAR BASIS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
CONSTRUCTION/ACQUISITION AGENT OR THE CONSTRUCTION/ACQUISITION LENDERS TO BRING
PROCEEDINGS AGAINST GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION OR TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
Section 7.10 GOVERNING LAW. THIS GUARANTY WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, OTHER THAN
CONFLICT OF LAWS PRINCIPLES THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION,
AND EXCEPT TO THE EXTENT THAT THE LAWS OF ANOTHER JURISDICTION ARE MANDATORILY
APPLICABLE.
Section 7.11 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 7.12 AGENT FOR SERVICE OF PROCESS. GUARANTOR HEREBY
AGREES TO DESIGNATE, APPOINT AND EMPOWER CT CORPORATION SYSTEM, NEW YORK, NEW
YORK, AS ITS AUTHORIZED AGENT TO RECEIVE FOR AND ON ITS BEHALF SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY
ACTION, SUIT OR PROCEEDING IN THE STATE OF NEW YORK. AS LONG AS THIS GUARANTY
REMAINS IN FORCE, GUARANTOR SHALL MAINTAIN A DULY APPOINTED AGENT FOR THE
SERVICE OF SUMMONS, COMPLAINT AND OTHER LEGAL PROCESS IN NEW YORK, NEW YORK,
FOR PURPOSES OF ANY LEGAL ACTION, SUIT OR PROCEEDING THE
CONSTRUCTION/ACQUISITION AGENT OR THE CONSTRUCTION/ACQUISITION LENDERS MAY
BRING IN RESPECT OF THIS GUARANTY. GUARANTOR SHALL KEEP THE
CONSTRUCTION/ACQUISITION AGENT ADVISED OF THE IDENTITY AND LOCATION OF SUCH
AGENT. GUARANTOR ALSO IRREVOCABLY CONSENTS, IF FOR ANY REASON GUARANTOR'S
AUTHORIZED AGENT FOR SERVICE OF PROCESS OF SUMMONS, COMPLAINT AND OTHER LEGAL
PROCESS IN ANY SUCH ACTION, SUIT OR PROCEEDING IS NOT PRESENT IN NEW YORK,
NEW YORK, THAT SERVICE OF SUCH PAPERS MAY BE MADE OUT OF THOSE COURTS BY MAILING
COPIES OF THE PAPERS BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE
ADDRESS SET FORTH IN SECTION 7.6. SERVICE IN THE MANNER PROVIDED IN THIS
SECTION 7.12 IN ANY SUCH ACTION, SUIT OR PROCEEDING WILL BE DEEMED PERSONAL
SERVICE, WILL BE ACCEPTED BY GUARANTOR AS SUCH AND WILL BE VALID AND BINDING
UPON GUARANTOR FOR ALL PURPOSES OF ANY SUCH ACTION, SUIT OR PROCEEDING.
Section 7.13 Severability. If any provision hereof or of any
promissory note or other instrument evidencing part or all of the Obligations
is invalid or unenforceable in any jurisdiction, the other provisions hereof or
thereof shall remain in full force and effect in such jurisdiction and the
remaining provisions hereof shall be liberally construed in favor of the
Construction/Acquisition Agent and the Construction/Acquisition Lenders 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 7.14 Entire Agreement. This Guaranty constitutes the
entire agreement and understanding of Guarantor with respect to the subject
matter hereof and supersedes any and all prior and contemporaneous contracts,
negotiations, agreements and understandings of Guarantor relating to the
subject matter herein contained, whether oral or written. Guarantor hereby
expressly acknowledges that it has not relied, in making this Guaranty, upon
any statement or representation, not contained herein, made by any other party,
including without limitation the Construction/Acquisition Agent, the
Construction/Acquisition Lenders and Borrower.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered on its behalf on the date first written above.
NRG ENERGY, INC.
By /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President Finance
