Exhibit 10.8.5
GUARANTY
This GUARANTY dated as of June 28, 1996 by NRG Generating (U.S.)
Inc., a Delaware corporation ("Guarantor"), to Credit Suisse, as Agent for
the benefit of the Lenders ("Agent") under the Credit Agreement referred to
below.
WHEREAS, pursuant to the Credit Agreement dated as of May 17,
1996 by and among (i) NRG Generating (Newark) Cogeneration Inc., a Delaware
corporation ("NRG Newark"), and NRG Generating (Xxxxxx) Cogeneration Inc.,
a Delaware corporation ("NRG Xxxxxx"), (ii) Credit Suisse and each
Purchasing Lender (each, a "Lender" and, collectively, the "Lenders"), and
(iii) Agent (as amended, supplemented or otherwise modified from to time,
the "Credit Agreement"), the Lenders have agreed, among other things, to
make available to Borrower certain Loans and Commitments on the terms and
subject to the conditions set forth in the Credit Agreement;
WHEREAS, each of NRG Newark and NRG Xxxxxx is a wholly owned
subsidiary of Guarantor; and
WHEREAS, Guarantor will benefit from the Loans and the
Commitments made or to be made available to NRG Newark and NRG Xxxxxx by
the Lenders pursuant to the Credit Agreement; and
WHEREAS, the Credit Agreement requires as a condition precedent
to the making available of the Additional Loan and the Debt Service Line of
Credit Facility Commitment that Guarantor shall have executed and delivered
this Guaranty to Agent;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders to make available and maintain the Additional Loan and the Debt
Service Line of Credit Facility Commitment under the Credit Agreement, and
for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Guarantor hereby agrees with Agent as
follows:
1. Definitions. Unless otherwise defined herein, any
capitalized terms used herein shall have the meaning assigned to such term
in the Credit Agreement. As used herein, the following terms shall have
the following meanings and such meanings shall be applicable to the
singular and plural form thereof giving effect to the numerical difference:
"Bankruptcy Event" means (a) either Borrower is generally not
paying or admits in writing its inability to pay its debts as such debts
become due, or files any petition or action for relief under any
bankruptcy, reorganization,
insolvency, or moratorium Law or any other Law for the relief of, or
relating to, debtors, now or hereafter in effect, or makes any assignment
for the benefit of creditors, liquidates or dissolves, or takes any action
in furtherance of any of the foregoing; or (b) an involuntary petition is
filed against either Borrower under any bankruptcy, reorganization,
insolvency, or moratorium Law now or hereafter in effect, or a custodian,
receiver, trustee, assignee for the benefit of creditors (or other similar
official) is appointed to take possession, custody or control of any
property of such Borrower, and (i) such petition or appointment is not
dismissed, set aside or withdrawn or otherwise ceases to be in effect
within 60 days from the date of said filing or appointment, or (ii) an
order for relief is entered against such Borrower with respect thereto, or
(iii) such Borrower shall take any action indicating its consent to,
approval of, or acquiescence in, any such petition or appointment.
"Payment Amount" has the meaning set forth in Section 2.2 hereof.
"Payment Default" means an Event of Default pursuant to Section
6.1(a) of the Credit Agreement.
2. Guaranty.
2.1 Guaranty Unconditional. Guarantor hereby unconditionally
and irrevocably guaranties, as a primary obligor and not merely as a
surety, to the Lenders and their successors, indorsees, transferees and
assigns, the prompt and complete payment when due, whether at the stated
maturity or on acceleration or otherwise, of the Obligations; provided,
however, that the maximum aggregate liability of Guarantor hereunder with
respect to the Obligations shall in no event exceed $25,000,000 which
maximum amount shall be reduced from time to time in proportion to
reductions, as a result of repayments and prepayments in accordance with
the terms of the Credit Agreement, of the outstanding principal amount of
the Funding Loans.
2.2 Payments by Guarantor. Subject to the limitation set forth
in Section 2.1 hereof, Guarantor shall, immediately upon notice by Agent to
Guarantor of the occurrence of a Payment Default, pay to Agent such portion
of the Obligations ("Payment Amount") as is equal to the sum of (i) any
principal of, or interest on, any of the Loans, or any other amounts, in
each case due and payable at such time to the Lenders or Agent under the
Credit Agreement or any other Loan Instruments, plus (ii) the amount
required to fund the Debt Service Reserve Account up to the amounts
specified in Section 5.1(c)(vi) of the Credit Agreement, without taking
into account the Debt Service Line of Credit Facility Commitment. Each and
2
every Payment Default by Borrower shall give rise to a separate liability
of Guarantor hereunder to pay the Payment Amount to Agent, subject,
however, to the limitation set forth in Section 2.1 hereof of the maximum
aggregate amount payable hereunder. For the avoidance of doubt, if an
Event of Default has occurred and Agent exercises the remedies specified in
Section 6.1(i)(B) of the Credit Agreement, the Guarantor shall, immediately
upon notice by Agent to Guarantor, pay to Agent any principal of, or
interest on, any of the Loans, or any other amounts, in each case due and
payable at such time to the Lenders or Agent under the Credit Agreement or
any other Loan Instruments, subject, however, to the limitation set forth
in Section 2.1 hereof of the maximum aggregate amount payable hereunder.
(b) Notwithstanding the provisions of Section 2.2(a) hereof, if
an Event of Default has occurred and is continuing, and Agent notifies
Guarantor of such Event of Default and, upon the request or with the
consent of the Majority Lenders, requests Guarantor to pay to Agent all of
Borrower's Obligations outstanding at such time, then Guarantor shall,
subject to the proviso in Section 2.1 hereof, immediately pay to Agent all
such amounts.
(c) If a Bankruptcy Event has occurred and Agent notifies
Guarantor of such Bankruptcy Event, Guarantor shall, subject to the proviso
in Section 2.1 hereof, immediately pay to Agent all of Borrower's
Obligations outstanding at such time.
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 of any of the
Obligations or any failure by Agent or any of the other Lenders to make any
such demand on either Borrower or on any other guarantor or to collect any
payments from either Borrower or from any other guarantor or any release of
either Borrower or any other guarantor;
(b) any renewal, extension, modification, amendment,
acceleration, compromise, waiver, indulgence, rescission, discharge,
surrender or release, in whole or in part, of the Credit Agreement or any
other Loan Instrument or 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, regularity or enforceability of any of the
Obligations or of the Credit Agreement or any other Loan Instrument;
3
(d) any failure by Agent or any of the other Lenders to protect,
secure, perfect, record, insure or enforce any Security Document or
Collateral subject thereto at any time constituting security for the
Obligations;
(e) any act or omission of Agent or any of the other Lenders
relating in any way to the Obligations or to either 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 which has furnished security for the Obligations, or to apply
any funds of any such party held by Agent or any of the other Lenders, or
to resort to any Collateral or collateral of any other guarantor;
(f) any defense, set-off or counterclaim which may at any time
be available to or be asserted by or on behalf of either Borrower or
Guarantor against Agent or any of the other Lenders or any circumstance
which constitutes, or might be construed to constitute, an equitable or
legal discharge of either Borrower or of any other guarantor 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 either Borrower or any other guarantor or any defense which
either 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; or
(h) any change, whether direct or indirect, in the Guarantor's
relationship to either Borrower, including, without limitation, any such
change by reason of any merger or any sale, transfer, issuance, or other
disposition of any stock of either Borrower, Guarantor or any other entity.
2.4 Continuing Guaranty. This Guaranty shall be construed as a
continuing, absolute and unconditional guaranty of payment when due, and
not of collection only, and the obligations of Guarantor hereunder shall
not be conditioned or contingent upon the pursuit by Agent or any of the
other Lenders at any time of any right or remedy against either Borrower or
against any other Person which may be or become liable in respect of all or
any part of the Obligations or against any Collateral or guaranty therefor.
This Guaranty shall remain in full force and effect until all of the
Obligations shall have been satisfied by payment in full.
2.5 Reinstatement of Guaranty. 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 the Obligations
4
is avoided, rescinded or must otherwise be restored or returned by Agent or
any of the other Lenders to either Borrower or its representative or to any
other guarantor for any reason including as a result of any insolvency,
bankruptcy or reorganization proceeding with respect to either Borrower or
Guarantor, all as though such payment had not been made.
2.6 Financial Condition of Borrower. Loans under the Credit
Agreement may be granted to Borrower or continued from time to time without
notice to or authorization from Guarantor regardless of the financial or
other condition of Borrower at the time of any such grant or continuation.
Neither Agent nor any of the other Lenders shall have any obligation to
disclose or discuss with Guarantor its assessment of the financial or other
condition of Borrower.
3. Right of Set-Off. Upon the occurrence and during the
continuation of an Event of Default, Agent and the other Lenders are hereby
authorized to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of Guarantor against any and all of the obligations of the
Guarantor now or hereafter existing under this Guaranty, irrespective of
whether or not such Lender shall have made any demand under this Guaranty
and although such deposits, indebtedness, or obligations may be unmatured
or contingent. Such Lender agrees to notify Guarantor promptly of any such
set-off and the application thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
4. Taxes. Subject to the proviso contained in Section
2.5(a)(i) of the Credit Agreement, any and all payments or reimbursements
made hereunder shall be made net, free and clear of and without deduction
for any and all Taxes, and all liabilities with respect thereto. Subject
to the proviso contained in Section 2.5(a)(i) of the Credit Agreement, if
Guarantor shall be required by law to deduct any such Taxes from or in
respect of any sum payable hereunder to Agent or any other Lender, then the
sum payable hereunder shall be increased as may be necessary so that, after
making all required deductions, the Lender receives an amount equal to the
sum it would have received had no such deductions been made. Subject to
the proviso contained in Section 2.5(a)(i) of the Credit Agreement,
Guarantor hereby indemnifies and agrees to hold Agent and each other Lender
harmless from and against all Taxes attributable to the transactions made
under this Guaranty.
5. Subrogation. Guarantor hereby agrees that, notwithstanding
anything to the contrary in this Guaranty or any other Loan Instrument,
until all Obligations are paid in
5
full Guarantor shall not be entitled to be subrogated to any of the rights
of the Lenders against either Borrower or any collateral security or
guaranty held by the Lenders for the satisfaction of any of the
Obligations, nor shall Guarantor seek any reimbursement, indemnity,
exoneration or contribution from either Borrower in respect of payments
made by Guarantor hereunder. Notwithstanding the foregoing, if any amount
shall be paid to Guarantor on account of such subrogation, reimbursement,
indemnity, exoneration or contribution rights, such amount shall be held by
Guarantor in trust for the Lenders, segregated from other funds of
Guarantor, and shall be turned over to Agent for the benefit of the
Lenders, in the exact form received by Guarantor (duly endorsed by
Guarantor to Agent for the benefit of the Lenders, if required), to be
applied against such amounts in such order as Agent may elect. This
Section 5 shall inure to the benefit of the Agent and the other Lenders and
their respective successors and assigns.
6. Representations and Warranties. The Guarantor represents
and warrants to Agent and the other Lenders that:
(a) Guarantor (i) is a corporation duly organized and validly
existing under the Laws of its jurisdiction of incorporation and (ii) has
all requisite corporate power and authority to execute, deliver and perform
this Guaranty and each other Loan Instrument to which it is a party.
(b) Guarantor is duly qualified and in good standing in each
jurisdiction where the failure to maintain such qualification or good
standing could reasonably be expected to result in a Material Adverse
Effect.
(c) The execution, delivery and performance by Guarantor of this
Guaranty and each other Loan Instrument to which it is a party has been
duly authorized by all necessary corporate action and shareholder action.
(d) The execution, delivery and performance by Guarantor of this
Guaranty and each other Loan Instrument to which it is a party does not and
will not: (1) violate any provision of Law applicable to Guarantor, where
such violation could reasonably be expected to result in a Material Adverse
Effect; (2) violate the certificate of incorporation or by-laws of
Guarantor, (3) violate, conflict with, result in a breach of, or constitute
(with due notice or lapse of time or both) a default under any contract,
agreement, indenture or instrument to which Guarantor is a party or by
which its respective properties are bound, where such violation, conflict,
breach or default could reasonably be expected to result in a Material
Adverse Effect; (4) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Guarantor (other than
Permitted Liens); or (5) require any
6
approval or consent of any Person under any contractual obligation of
Guarantor.
(e) The execution, delivery and performance by Guarantor of this
Guaranty and each other Loan Instrument to which it is a party does not and
will not require any filing or registration with, consent or approval or
authorization of, or notice to, or other action to, with or by, any
Governmental Authority, regulatory body or any other Person, except where
the failure to so file or register could not reasonably be expected to
result in a Material Adverse Effect.
(f) This Guaranty and each other Loan Instrument to which
Guarantor is a party are the legal, valid and binding obligation of
Guarantor enforceable against Guarantor, in accordance with their terms
except to the extent enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditor rights and subject to general
equitable principles.
(g)Guarantor is in compliance with all Laws, other than those
Laws the non compliance with which could not reasonably be expected to
result in a Material Adverse Effect.
(h) Except as disclosed on Schedule A hereto, there are no
actions, suits, proceedings, claims or disputes pending or, to the best of
the Guarantor's knowledge, threatened against or affecting Guarantor or any
of its respective properties or assets before any arbitrator or other
Governmental Authority. There is no injunction, writ, preliminary
restraining order or any order of any nature issued by an arbitrator or
other Governmental Authority directing that any material aspect of the
transactions provided for in any of the Loan Instruments or Acquisition
Documents not be consummated as herein or therein provided.
(i) No event has occurred or would result from the incurring of
obligations under this Guaranty or any other Loan Instrument to which
Guarantor is a party or the consummation of the Acquisition which is, or
upon the lapse of time or notice or both would become, an Event of Default.
Guarantor is not in default under or with respect to any contractual
obligation in any respect, the default of which could reasonably be
expected to result in a Material Adverse Effect. Guarantor is not in
default under any order, award or decree of any court, arbitrator or
Governmental Authority binding upon or affecting it or by which any of its
properties or assets is bound or affected, the default of which could
reasonably be expected to result in a Material Adverse Effect. Guarantor
has not received notice of, and is not aware of, the occurrence of any
event of force majeure with respect to either Project.
7
(j) Guarantor is (and after giving effect to the transactions
contemplated by the Loan Instruments and the Acquisition Documents will be)
Solvent.
(k) No Contractual Obligation of Guarantor and no Requirement of
Law has, or is reasonably expected to have, in light of all facts and
circumstances of which Guarantor has actual knowledge, a Material Adverse
Effect, it being understood that the mere existence of traditional project
finance contractual provisions which provide lenders with security
interests and restrictive covenants, including the ability to restrict cash
distributions, would not constitute a burdensome restriction hereunder.
(l) All tax returns which are required to be filed in respect of
each Borrower and Guarantor, and all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property
and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than those the amount or
validity of which is currently being contested in a Good Faith Contest and
with respect to which reserves in conformity with GAAP have been provided
on the books of such Borrower) have been filed and paid by Guarantor; and
no tax Liens have been filed and, to the knowledge of Guarantor, no claims
are being asserted with respect to any such taxes, fees or other charges
which are material either as to amount or potentially adverse effect when
considered with respect to the financial and business condition of such
Borrower or Guarantor.
(m) Guarantor is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation G, T, U, or X of the Board of Governors of the Federal
Reserve System) and no proceeds of any Loan will be used in a manner which
would violate, or result in a violation of, such Regulation G, T, U, or X.
(n) No representation or warranty of Guarantor contained in any
Loan Instrument or Acquisition Document, or any other document, certificate
or written statement set forth on Schedule 4.24 of the Credit Agreement
contains any untrue statement of a fact or omitted, omits or will omit to
state a fact necessary in order to make the statements contained herein or
therein, when taken as a whole, not misleading in any respect in light of
the circumstances in which the same were made. There is no fact known to
Guarantor which has not been disclosed in writing to Agent and which
materially adversely affects, or which could reasonably be expected in the
future to materially adversely affect, the properties, business, prospects
or financial condition of either Borrower or Guarantor or either Project.
8
7. Covenants. The Guarantor hereby covenants and agrees that
until payment in full in cash of all of the Obligations or so long as any
of the Commitments shall remain available pursuant to the Credit Agreement,
the Guarantor will observe and fulfill each and all of the following
covenants unless the Majority Lenders shall otherwise consent in writing:
(a) The Guarantor shall at all times (i) preserve and maintain
in full force and effect (A) its existence as a corporation in good
standing under the laws of the State of Delaware, (B) its qualification to
do business in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business as
conducted or proposed to be conducted makes such qualification necessary
and where the failure to maintain such qualification could reasonably be
expected to result in a Material Adverse Effect and (C) all of its powers,
rights, privileges and franchises necessary for the ownership, maintenance
and operation of each Project and the maintenance of its existence, except,
in the case of clause (C) only, where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect and (ii)
obtain and maintain in full force and effect all Governmental Approvals and
other consents and approvals required to be obtained and maintained by the
Guarantor at any time in connection with the maintenance, ownership or
operation of each Borrower and where the failure to obtain and maintain in
full force and effect such Governmental Approvals, consents and approvals
could reasonably be expected to result in a Material Adverse Effect;
provided, however, Guarantor may be merged or consolidated with or into
another Person if: (i) either (x) Guarantor shall be the surviving Person
or (y) the Person (if other than Guarantor) formed by such consolidation or
into which Gurantor is merged shall be a corporation organized and existing
under the laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Lenders and the Agent in form and substance
satisfactory to the Majority Lenders and the Agent, all of the obligations
of Guarantor under this Guaranty, (ii) immediately before and immediately
after giving effect to such transaction, no Default shall have occurred and
be continuing, (iii) immediately after, and giving effect to, such
transaction and the assumption contemplated by clause (i)(y) above, and the
incurrence or anticipated incurrence of any Indebtedness to be incurred in
connection therewith, the surviving Person shall have a Net Worth (as
defined in the Tax Indemnification Agreement) equal to or greater than the
Net Worth of Guarantor immediately preceding such transaction and Guarantor
shall have delivered to the Agent a certificate of an Authorized Officer of
Guarantor stating that such consolidation or merger and such supplemental
agreement comply with this Section 7(a) and that all conditions
9
precedent herein provided relating to such transaction have been complied
with.
(b) Guarantor is not engaged in, nor will it engage in, any
activity which would cause the Loans to be in violation of Regulation G, T,
U, or X of the Board of Governors of the Federal Reserve System.
(c) Promptly upon receipt thereof, Guarantor will deliver copies
of all significant reports submitted to Guarantor by independent public
accountants in connection with each annual, interim or special audit of the
financial statements of Guarantor made by such accountants.
(d) Guarantor will furnish to Agent with sufficient copies for
each Lender (as designated by Agent) such information respecting the
condition or operations, financial or otherwise, of Guarantor as any Lender
through Agent may from time to time reasonably request.
(e) Guarantor will furnish to Agent with sufficient copies for
each Lender (as designated by Agent) promptly upon Guarantor's knowledge
thereof, a written statement from an Authorized Officer of Guarantor
describing the details of any substantial dispute which may exist between
Guarantor and any governmental regulatory body or law enforcement authority
that could reasonably be expected to result in a Material Adverse Effect.
8. Costs and Expenses. Guarantor shall pay all reasonable
costs and expenses of Agent and the other Lenders (including, without
limitation, attorneys' fees and disbursements) incurred in connection with
(a) the enforcement of, or collection of any amounts due under, this
Guaranty, (b) any waiver, extension, amendment or modification of any
provision of this Guaranty, or (c) the administration of this Guaranty.
9. Indemnity. Guarantor shall indemnify Agent and each of the
other Lenders and their respective officers, directors, employees,
representatives and agents from and against any and all damages, losses,
liabilities, costs and expenses (including, without limitation, attorneys'
fees and disbursements) arising out of or resulting from, or otherwise in
connection with, this Guaranty.
10. Renewals, Extensions, Modifications, etc. Guarantor hereby
consents and agrees that, without the necessity of any reservation of
rights against Guarantor, (a) any demand for payment of any of the
Obligations made by Agent or any of the other Lenders may be rescinded and
any of the Obligations continued; (b) the Obligations or the liability
10
of any party upon or for any part thereof or any collateral security
thereof or guaranty thereof, may from time to time, in whole or in part, be
renewed, extended, modified, accelerated, compromised, waived, surrendered
or released by Agent or any of the other Lenders; (c) the Credit Agreement,
the Notes, and any other instrument or agreement evidencing, relating to,
securing or guaranteeing any of the Obligations, may be amended, modified,
supplemented or terminated, in whole or in part, as Agent or any of the
other Lenders may deem advisable from time to time; and (d) any collateral
security at any time held by Agent for the payment of any of the
Obligations may be sold, exchanged, waived, surrendered or released, all
without notice to or further assent by Guarantor, who will remain bound
hereunder as specified herein notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement, termination,
sale, exchange, waiver, surrender or release. Guarantor acknowledges and
agrees that neither Agent nor any of the other Lenders has any obligation
to provide Guarantor with any information regarding Borrower or any other
guarantor of the Obligations and that Guarantor has the ability to obtain
without the assistance of Agent or any other Lender all such information.
11. Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of Agent or any other Lender in the exercise
of any power, right or privilege under this Guaranty or any other Loan
Instruments to which Guarantor is a party and no course of dealing with
respect thereto shall impair such power, right or privilege or be construed
to be a waiver of any default or acquiescence therein, nor shall any single
or partial exercise of any power, right or privilege thereunder preclude
any other or further exercise thereof or the exercise of any other power,
right or privilege. All rights and remedies existing under this Guaranty
and the other Loan Instruments to which Guarantor is a party are cumulative
to, and not exclusive of, any rights and remedies provided by law or
otherwise available.
12. Waiver of Demand, Protest, Notice, etc. Guarantor waives
presentment, demand and protest and notice of presentment, protest,
default, nonpayment, maturity, release, compromise, settlement, extension
or renewal of any or all notes, commercial paper, accounts, contract
rights, documents, instruments, chattel paper and guaranties at any time
held by Agent or any of the other Lenders on which Guarantor may in any way
be liable.
13. Amendment; Assignment. No amendment, modification,
termination, or waiver of any provision of this Guaranty or any other Loan
Instrument to which Guarantor is a party, or consent to any departure by
Guarantor therefrom shall in any event be effective unless the same shall
be in writing
11
and signed by Agent. Guarantor hereby consents to any Lender's sale,
assignment, transfer or other disposition (including participations and
obtaining co-lenders) at any time and from time to time hereafter, of this
Guaranty, the Loan Instruments or of any portion thereof, including,
without limitation, Lender's rights, titles, interests, remedies, powers,
duties and/or obligations hereunder or thereunder, in each case, to the
extent permitted in Section 8.6 of the Credit Agreement.
14. Severability. The invalidity, illegality or
unenforceability in any jurisdiction of any provision in or obligation
under this Guaranty, or any other Loan Instrument to which Guarantor is
party, shall not affect or impair the validity, legality or enforceability
of the remaining provisions or obligations under this Guaranty or any other
Loan Instrument to which Guarantor is a party or of such provision or
obligation in any other jurisdiction.
15. Successors and Assigns. This Guaranty shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, except that Guarantor may not assign its rights or
obligations hereunder or any portion hereof without the prior written
consent of Agent.
16. Applicable Law. This Guaranty shall be governed and
controlled by, and shall be construed and enforced in accordance with, the
Laws of the State of New York, without regard to the principles of conflict
of laws.
17. Consent to Jurisdiction and Service of Process. (a) Any
legal action or proceeding against Guarantor with respect to this Guaranty
or any other Loan Instrument may be brought in the courts of the State of
New York in the County of New York or of the United States for the Southern
District of New York and, by execution and delivery of this Guaranty,
Guarantor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor agrees that a judgment, after exhaustion of all
available appeals, in any such action or proceeding shall be conclusive and
binding upon the Guarantor, and may be enforced in any other jurisdiction
by a suit upon such judgment, a certified copy of which shall be conclusive
evidence of the judgment. Guarantor hereby irrevocably designates,
appoints and empowers CT Corporation System as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding.
If for any reason such designee, appointee and agent shall cease to be
available to act as such, Guarantor agrees to designate a new designee,
appointee and agent in New York City on the terms and for the purposes of
this provision
12
satisfactory to Agent. Guarantor further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to Guarantor, at its address set forth in
Section 19 hereof, such service to become effective __ days after such
mailing. Nothing herein shall affect the right of any Lender to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Guarantor in any other
jurisdiction.
(b) Guarantor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Guaranty
or any other Loan Instrument brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
18. Waiver of Jury Trial. Guarantor and Agent hereby waive
their respective rights to a jury trial of any claim or cause of action
based upon or arising out of this Guaranty, any other documents, the
Collateral or any dealings between them relating to the subject matter of
this Guaranty and the other Loan Instruments and the lender/guarantor
relationship that is being established. Guarantor and Agent also waive any
bond or surety or security upon such bond which might, but for this waiver,
be required of secured parties. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims, and all
other common law and statutory claims. Guarantor and Agent each
acknowledge that this waiver is a material inducement to enter into a
business relationship, that each has already relied on the waiver in
entering into this Guaranty and that each will continue to rely on the
waiver in their related future dealings. Guarantor and Agent further
warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. This waiver is
irrevocable, meaning that it may not be modified either orally or in
writing, and the waiver shall apply to any subsequent amendments, renewals,
supplements or modifications to this Guaranty, the other Loan Instruments,
or to any other documents or agreements relating thereto. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by
the court.
19. NOTICES.
13
Except as otherwise expressly provided herein, (a) all notices
and other communications provided for hereunder shall be provided in
writing (including telegraphic, facsimile or cable communication) and shall
be sent by telecopy, telegraph or cable with the original of such
communication dispatched by (if inland) overnight or (if overseas)
international courier and, if such courier service is not available, by
registered airmail (or, if inland, registered first-class mail) with
postage prepaid to Guarantor and Agent at their respective addresses
specified below, or at such other address as shall be designated by such
party in a written notice to the other party hereto and (b) all such
notices and communications shall, when mailed, telegraphed, telecopied, or
cabled or sent by overnight courier, be effective seven (7) days after
being deposited in the mails in the manner as aforesaid, when delivered to
the telegraph company or cable company (if inland), one (1) day or (if
overseas) three (3) days after delivery to a courier in the manner as
aforesaid, as the case may be, or when sent by telecopier:
14
Addresses:
If to Guarantor:
NRG Generating (US) Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn : Xxxxxxx X. Xxxxx
Tel : (000) 000-0000
Fax : (000) 000-0000
If to Agent:
CREDIT SUISSE
Tower 49
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Project Finance
Tel : (000) 000-0000
Fax : (000) 000-0000
20. Headings. All headings in this Guaranty are included herein
for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose or be given any substantive effect.
21. Financial Statements; Reports. Guarantor agrees that it
will provide to the Agent on a timely basis all financial statements,
reports, letters and certificates of Guarantor which Borrower are required
to deliver to Agent pursuant to Section 5.8 of the Credit Agreement, all
such financial statements, reports, letters and certificates will be
prepared in accordance with and conform to the provisions of such Section
of the Credit Agreement.
22. Loan Instruments. Guarantor will perform and observe all of
its covenants and agreements contained in any of the Loan Instruments to
which it is a party.
23. Remedies. The remedies provided herein are cumulative and
not exclusive of any remedies provided under any other Loan Instrument or
by law. Agent and the Lenders shall have all of the rights and remedies
granted under the other Loan Instruments, and available under law or in
equity, and these same rights and remedies may be pursued separately,
successively or concurrently.
15
24. Counterparts. This Guaranty and any amendments, waivers,
consents or supplements hereto may be executed in any number of
counterparts and by the different parties in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all
of which counterparts together shall constitute one and the same
instrument. This Guaranty shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
IN WITNESS WHEREOF, this Guaranty has been duly executed as of
the date and year first above written.
NRG GENERATING (U.S.) INC.
By:/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Agreed and Accepted as of this
28th day of June, 1996
CREDIT SUISSE, as Agent
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Associate
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Associate
