Exhibit 99.7
NEWPOWER HOLDINGS, INC.
GUARANTY
This Guaranty (this "Guaranty"), dated effective as of March 14, 2001, is
made and entered into by NEWPOWER HOLDINGS, INC., a Delaware corporation
("Guarantor"), joined herein by Enron North America Corp.
WITNESSETH:
WHEREAS, The New Power Company, a Delaware corporation ("NewPower"), a
wholly owned subsidiary of Guarantor, and ENRON NORTH AMERICA CORP. ("ENA"), a
Delaware corporation, and ENRON ENERGY SERVICES, INC., a Delaware corporation
("EES") (collectively, "Enron"), have entered into that certain Master
Cross-Product Netting, Setoff, and Security Agreement dated effective of even
date herewith (the "Netting Agreement") and either of ENA or EES, on the one
hand, and NewPower, on the other hand, are parties to one or more of the
Underlying Master Agreements (therein defined), together with Transactions
(therein defined) under such Underlying Master Agreements, and NewPower and
Enron contemplate entering into additional Transactions thereunder (all such
Underlying Master Agreements and Transactions, whether entered into prior to,
on, or after the date hereof, together with the Netting Agreement, as the same
may from time to time be modified, amended, and supplemented, shall be referred
to herein collectively as the "Contract");
WHEREAS, Guarantor has and will directly or indirectly benefit from the
foregoing;
WHEREAS, Guarantor executed a Guaranty dated effective as of August 10,
2000, as such guaranty may have been modified, amended, and supplemented from
time to time (the "Prior Guaranty"), guaranteeing NewPower's obligations to ENA
under the Underlying Master Agreement between ENA and NewPower dated as of
August 10, 2000, and identified in the Netting Agreement as the XXX-XxxXxxxx
ISDA Master Agreement; and
WHEREAS, Guarantor desires to substitute and replace this Guaranty for the
Prior Guaranty and ENA agrees to such substitution and replacement.
NOW THEREFORE, in consideration of Enron entering into the Contract,
Guarantor hereby covenants and agrees as follows:
1. GUARANTY. Subject to the provisions hereof, Guarantor hereby
irrevocably and unconditionally guarantees the timely payment when due of the
obligations of NewPower (the "Obligations") to Enron under the Contract. This
Guaranty shall constitute a guarantee of payment and not of collection. The
liability of Guarantor under this Guaranty shall be subject to the following:
(a) Guarantor's liability hereunder shall be and is specifically limited
to payments expressly required to be made under the Contract (even if such
payments are deemed to be damages) and, except to the extent specifically
provided in the Contract, in no event shall Guarantor be subject hereunder
to consequential, exemplary, equitable, loss of profits, punitive, tort,
or any other damages, costs, or attorney's fees.
(b) The aggregate amount payable by Guarantor under this Guaranty shall
not exceed U.S. $20,000,000.00.
2. DEMANDS AND NOTICE. Upon the occurrence and during the continuance of
an event of default under the Contract, if NewPower fails or refuses to pay any
Obligations and Enron has elected to exercise its rights under this Guaranty,
Enron shall make a demand upon Guarantor (hereinafter referred to as a "Payment
Demand"). A Payment Demand shall be in writing and shall reasonably and briefly
specify in what manner and what amount NewPower has failed to pay and an
explanation of why such payment is due, with a specific statement that Enron is
calling upon Guarantor to pay such amount under this Guaranty. A Payment Demand
satisfying the foregoing requirements shall be required before Guarantor is
obligated to pay such Obligations hereunder and shall be deemed sufficient
notice to Guarantor that it must pay the Obligations within five Business Days
(as defined in the Netting Agreement) after its receipt of the Payment Demand. A
single written Payment Demand shall be effective as to any specific default
during the continuance of such default, until NewPower or Guarantor has cured
such default, and additional written demands concerning such default shall not
be required until such default is cured.
3. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants that:
(a) it is a corporation duly organized and validly existing under
the laws of the State of Delaware and has the corporate power and
authority to execute, deliver, and carry out the terms and provisions of
this Guaranty;
(b) no authorization, approval, consent or order of, or registration
or filing with, any court or other governmental body having jurisdiction
over Guarantor is required on the part of Guarantor for the execution and
delivery of this Guaranty; and
(c) this Guaranty, when executed and delivered, will constitute a
valid and legally binding agreement of Guarantor, 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.
4. SETOFFS AND COUNTERCLAIMS. Without limiting Guarantor's own defenses
and rights hereunder, Guarantor reserves to itself all rights, setoffs,
counterclaims, and other defenses to which NewPower, or any other affiliate of
Guarantor that becomes a party to the Contract, is or may be entitled to arising
from or out of the Contract or otherwise, except for defenses arising out of the
bankruptcy, insolvency, dissolution, or liquidation of NewPower.
5. AMENDMENT OF GUARANTY. No term or provision of this Guaranty shall be
amended, modified, altered, waived or supplemented except in a writing signed by
Guarantor and Enron.
6. WAIVERS. Guarantor hereby waives (a) notice of acceptance of this
Guaranty, (b) presentment and demand concerning the liabilities of Guarantor,
except as expressly hereinabove set forth, and (c) any right to require that any
action or proceeding be brought against NewPower or any other person, or except
as expressly hereinabove set forth, to require that Enron seek enforcement of
any performance against NewPower or any other person, prior to any action
against Guarantor under the terms hereof.
Except as to applicable statutes of limitation, no delay by Enron in the
exercise of, or failure to exercise, any rights hereunder shall operate as a
waiver of such rights, a waiver of any other rights or a release of Guarantor
from any obligations hereunder.
Guarantor consents to the renewal, compromise, extension, acceleration, or
other changes in the time of payment or other changes in the terms of the
Obligations, or any part thereof, or any changes or modifications to the terms
of the Contract, and any such changes or modifications shall not release or
excuse Guarantor from performing under this Guaranty.
Guarantor may terminate this Guaranty by providing written notice of such
termination to Enron and upon the effectiveness of such termination, Guarantor
shall have no further liability hereunder, except as provided in the last
sentence of this paragraph. No such termination shall be effective until five
Business Days after receipt by Enron of such termination notice. No such
termination shall affect Guarantor's liability with respect to any Transaction
entered into prior to the time such termination is effective, which Transaction
shall remain guaranteed pursuant to the terms of this Guaranty.
7. NOTICE. Any Payment Demand, notice, request, instruction,
correspondence or other document to be given hereunder by any party to another
(herein collectively called "Notice") shall be in writing and delivered
personally or mailed by certified mail, postage prepaid and return receipt
requested, or by telegram or telecopier, as follows:
To Enron: Enron North America Corp. and Enron Energy Services, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn.: Director, Documentation Department
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
To Guarantor: NewPower Holdings, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn.: Managing Director, Law and Government Affairs
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
A copy of any Notice sent to Enron pursuant hereto must also be sent to the
above address to: (a) Enron Corp., Attention: Corporate Secretary, Fax No. (713)
000-0000, and (b) Enron North America Corp., Attention: Assistant General
Counsel, Trading Group, Fax No. (000) 000-0000 and (c) Enron Energy Services,
inc., Attention: General Counsel, Trading Group, Fax No. (000) 000-0000.
Notice given by personal delivery or mail shall be effective upon actual
receipt. Notice given by telegram or telecopier shall be effective (a) upon
actual receipt if received during the recipient's normal business hours, or (b)
at the beginning of the recipient's next business day after receipt if not
received during the recipient's normal business hours. All Notices by telegram
or telecopier shall be confirmed promptly after transmission in writing by
certified mail or personal delivery. Any party may change any address to which
Notice is to be given to it by giving notice as provided above of such change of
address.
8. PRIOR GUARANTY. Upon execution and delivery of this Guaranty by
Guarantor and ENA, the Prior Guaranty shall become null and void and of no
further force or effect. Upon receipt of an originally executed copy of this
Guaranty, ENA agrees to promptly return the original of the Prior Guaranty to
NewPower. It is expressly acknowledged that this Guaranty is given in
replacement and substitution of the Prior Guaranty and shall become operative
only upon termination of the Prior Guaranty as set forth in this Paragraph 8.
9. MISCELLANEOUS. This Guaranty shall in all respects be governed by, and
construed in accordance with, the law of the State of New York, without regard
to principles of conflicts of laws. This Guaranty shall be binding upon
Guarantor, its successors and assigns and inure to the benefit of and be
enforceable by Enron, its successors and assigns. This Guaranty embodies the
entire agreement and understanding between Guarantor and Enron and supersedes
all prior agreements and understandings relating to the subject matter hereof
The headings in this Guaranty are for purposes of reference only, and shall not
affect the meaning hereof
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty effective as
of the date first above written.
NEWPOWER HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President & Treasurer
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The undersigned agrees and consents to the
provisions of Paragraph 8 hereof
ENRON NORTH AMERICA CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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