Exhibit B-3
DRAFT
FORM OF GUARANTY
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce, a
___________ corporation (herein, with its participants,
successors and assigns, called "Lender"), at its option, at any
time or from time to time to make loans or extend other
accommodations to or for the account of ("Issuer") and
("Borrower") or to engage in any other transactions with Borrower
and Issuer, the undersigned hereby: absolutely and
unconditionally guarantees to Lender the full and prompt payment
when due, whether at maturity or earlier by reason of
acceleration or otherwise, of any and all present and future
debts, liabilities and obligations owed by Borrower or Issuer to
Lender evidenced by or arising out of the Loan Agreement dated as
of _________ among Lender, Borrower and Issuer (the
"Indebtedness") and subject to prior written consent of
undersigned, any and all extensions, renewals, modifications,
supplements or amendments thereto or thereof and any related
agreements which upon such consent shall become Indebtedness.
1. The undersigned represents and warrants to Lender that
(a) the undersigned is a corporation duly organized and existing
in good standing and has full power and authority to make and
deliver this Guaranty; (b) the execution, delivery and
performance of this Guaranty by the undersigned have been duly
authorized by all necessary action of its directors and do not
and will not violate the provisions of, or constitute a default
under, any presently applicable law or its articles of
incorporation or bylaws or any agreement presently binding on it;
(c) this Guaranty has been duly executed and delivered by the
authorized officers of the undersigned and constitutes its
lawful, binding and legally enforceable obligation; and (d) the
authorization, execution, delivery and performance of this
Guaranty do not require notification to, registration with, or
consent or approval by, any federal, state or local regulatory
body or administrative agency.
2. No act or thing need occur to establish the liability
of the undersigned hereunder, and no act or thing, except full
payment and discharge of all Indebtedness, shall in any way
exonerate the undersigned hereunder or modify, reduce, limit or
release the liability of the undersigned hereunder. This is an
absolute, unconditional and continuing guaranty of payment of the
Indebtedness. The dissolution, adjudication of bankruptcy of the
undersigned shall not revoke this Guaranty.
3. The undersigned represents and warrants to Lender that
the undersigned has an economic interest in Borrower and expects
to derive benefits therefrom and from any loans resulting in the
creation of Indebtedness guaranteed hereby, and that this
Guaranty is given for a corporate purpose. This Guaranty shall
be effective and enforceable by Lender without regard to the
receipt, nature or value of any such benefits.
4. If the undersigned shall be dissolved or shall be or
become insolvent (however defined), then Lender shall have the
right to declare immediately due and payable, and the undersigned
will forthwith pay to Lender, the full amount of all Indebtedness
whether due and payable or unmatured. If the undersigned
voluntarily commences or there is commenced involuntarily against
the undersigned a case under the United States Bankruptcy Code,
the full amount of all Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or
notice thereof.
5. The undersigned will not exercise or enforce any right
of contribution, reimbursement, recourse or subrogation available
to the undersigned as to any Indebtedness, or against any person
liable therefor, or as to any collateral security therefor,
unless and until all Indebtedness shall have been fully paid and
discharged.
6. The undersigned will pay or reimburse Lender for all
costs and expenses (including reasonable attorneys' fees and
legal expenses) incurred by Lender in connection with the
protection, defense or enforcement of this Guaranty in any
litigation or bankruptcy or insolvency proceedings.
7. Lender shall not be obligated by reason of its
acceptance of this Guaranty to engage in any transactions with or
for Borrower or Issuer. Whether or not any existing relationship
between the undersigned and Borrower has been changed or ended,
Lender may enter into transactions resulting in the creation or
continuance of Indebtedness and may otherwise agree, consent to,
or suffer the creation or continuance of any Indebtedness,
without any consent or approval by the undersigned and without
any prior or subsequent notice to the undersigned. The liability
of the undersigned shall not be affected or impaired by any of
the following acts or things (which Lender is expressly
authorized to do, omit or suffer from time to time, both before
and after revocation of this Guaranty, without consent or
approval by or notice to the undersigned): (a) any acceptance of
collateral security, guarantors, accommodation parties or
sureties for any or all Indebtedness; (b) one or more extensions
or renewals of Indebtedness (whether or not for longer than the
original period) or any modification of the interest rates,
maturities or other contractual terms applicable to any
Indebtedness; (c) any waiver or indulgence granted to Borrower or
Issuer, any delay or lack of diligence in the enforcement of
Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any
Indebtedness; (d) any full or partial release of, compromise or
settlement with, or agreement not to sue, Borrower, Issuer or any
guarantor or other person liable in respect of any Indebtedness;
(e) any release, surrender, cancellation or other discharge of
any evidence of Indebtedness or the acceptance of any instrument
in renewal or substitution therefor; (f) any failure to obtain
collateral security (including rights of setoff) for
Indebtedness, or to see to the proper or sufficient creation and
perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any
collateral security; or any modification, alteration,
substitution, exchange, surrender, cancellation, termination,
release or other change, impairment, limitation, loss or
discharge of any collateral security; (g) any collection, sale,
lease or disposition of, or any other foreclosure or enforcement
of or realization on, any collateral security; (h) any
assignment, pledge or other transfer of any Indebtedness or any
evidence thereof; (i) any manner, order or method of application
of any payments or credits upon Indebtedness; (j) any election
by Xxxxxx under Section 1111(b) of the United States Bankruptcy
Code. The undersigned waives any and all defenses and discharges
available to a surety, guarantor, or accommodation co-obligor.
8. The undersigned waives any and all defenses, claims,
setoffs, and discharges of Borrower or Issuer, or any other
obligor, pertaining to Indebtedness, except the defense of
discharge by payment in full. Without limiting the generality of
the foregoing, the undersigned will not assert, plead or enforce
against Lender any defense of waiver, release, discharge in
bankruptcy, statute of limitations, res judicata, statute of
frauds, anti-deficiency statute, fraud, incapacity, minority,
usury, illegality or unenforceability which may be available to
Borrower or Issuer or any other person liable in respect of any
Indebtedness, or any setoff available against Lender to Borrower
or Issuer or any other such person, whether or not on account of
a related transaction. The undersigned expressly agrees that the
undersigned shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage or security interest
securing Indebtedness, whether or not the liability of Borrower
or Issuer or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision. The liability of the
undersigned shall not be affected or impaired by any voluntary or
involuntary liquidation, dissolution, sale or other disposition
of all or substantially all the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement,
composition or readjustment of, or other similar event or
proceeding affecting Borrower or Issuer or any of their
respective assets. The undersigned will not assert, plead or
enforce against Lender any claim, defense or setoff available to
the undersigned against Borrower or Issuer.
9. The undersigned waives presentment, demand for payment,
notice of dishonor or nonpayment, and protest of any instrument
evidencing Indebtedness. Lender shall not be required first to
resort for payment of the Indebtedness to Borrower or Issuer or
other persons, or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before
enforcing this Guaranty.
10. If any payment applied by Lender to Indebtedness in
thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the
bankruptcy, insolvency or reorganization of Borrower or Issuer or
any other obligor), the Indebtedness to which such payment was
applied shall for the purpose of this Guaranty be deemed to have
continued in existence, notwithstanding such application, and
this Guaranty shall be enforceable as to such Indebtedness as
fully as if such application had never been made.
11. The liability of the undersigned under this Guaranty is
in addition to and shall be cumulative with all other liabilities
of the undersigned to Lender as guarantor, surety, endorser,
accommodation co-obligor or otherwise of any Indebtedness or
obligation of Borrower or Issuer, without any limitation as to
amount, unless the instrument or agreement evidencing or creating
such other liability specifically provides to the contrary.
12. This Guaranty shall be effective upon delivery to
Lender, without further act, condition or acceptance by Lender,
shall be binding upon the undersigned and the successors and
assigns of the undersigned and shall inure to the benefit of
Xxxxxx and its participants, successors and assigns. Any
invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and
application hereof, and to this end the provisions of this
Guaranty are declared to be severable. This Guaranty may not be
waived, modified, amended, terminated, released or otherwise
changed except by a writing signed by the undersigned and Lender.
This Guaranty shall be governed by the laws of the ___________.
The undersigned waives notice of Xxxxxx's acceptance hereof and
waives the right to trial by jury in any action based on or
pertaining to this Guaranty.
IN WITNESS WHEREOF, this Guaranty has been duly executed on
behalf of the undersigned by its duly authorized officer as of
the day and year first above written.
MASSACHUSETTS ELECTRIC COMPANY
By: _____________________________
Title: ___________________________
STATE OF ______________________)
COUNTY OF______________________)
The foregoing instrument was acknowledged before me this
____ day of _____________, by _______________, the
_________________ of ______________, a _____________ corporation,
on behalf of the corporation.
_____________________________
Notary Public
[Please note that this Draft Form of Guaranty has not been
reviewed by the Lender and its counsel.]
