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Exhibit 10.68
ENRON OIL & GAS COMPANY
Guaranty
This Agreement (this "Guaranty"), dated effective as of January 16,
1996, is made and entered into by Enron Oil & Gas Company, a Delaware
corporation ("Guarantor").
W I T N E S S E T H
WHEREAS, Royal Bank of Canada ("Counterparty") and EOG Company of
Canada (the "Company"), is a subsidiary of Guarantor, are contemplating
entering into a Master Agreement dated as of the effective date hereof, a copy
of which is attached hereto as Exhibit "A" (such Master Agreement, as the same
may from time to time be modified, amended and supplemented, shall be referred
to herein as the "Contract"); and Guarantor will directly or indirectly benefit
from the transactions to be entered into between the Company and Counterparty.
NOW THEREFORE, in consideration of Counterparty 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 Company (the "Obligations") to Counterparty under the Contract.
To the extent that Company shall fail to pay any Obligations, Guarantor shall
promptly pay to Counterparty the amount due. This Guaranty shall constitute a
guarantee of payment and not of collection. The liability of Guarantor under
the 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.
2. DEMANDS AND NOTICE. If Company fails or refuses to pay any
Obligations, Counterparty shall notify Company in writing of the manner in
which Company has failed to pay and demand that payment be made by Company. If
Company's failure or refusal to pay continues for a period of fifteen (15) days
after the date of Counterparty's notice to Company, and Counterparty has
elected to exercise its rights under this Guaranty, Counterparty 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 Company has failed to pay and an explanation of why
such payment is due, with a specific statement that Counterparty is calling
upon Guarantor to pay under this Guaranty. A Payment Demand satisfying the
foregoing requirements shall be deemed sufficient notice to Guarantor that
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it must pay the Obligations. A single written Payment Demand shall be effective
as to any specific default during the continuance of such default, until
Company 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 the 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 creditor's
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 Company or any other
subsidiary of Guarantor 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 Company.
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 Counterparty.
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 Company or any other
person, or except as expressly hereinabove set forth, to require that
Counterparty seek enforcement of any performance against Company or any other
person, prior to any action against Guarantor under the terms hereof.
Except as to applicable statutes of limitation, no delay of
Counterparty 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.
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Guarantor consents to the renewal, compromise, extension, acceleration
or other changes in the time of payment of or other changes in the terms of
the Obligations, or any part thereof or any changes or modifications to the
terms of the Contract.
Guarantor may terminate this Guaranty by providing written notice of
such termination to Counterparty. No such termination shall be effective until
five (5) business days after receipt by Counterparty of such termination
notice. No such termination shall affect Guarantor's liability with respect to
any Transaction (as defined in the Contract) entered into prior to the time the
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:
Counterparty: Royal Bank of Canada Guarantor: Enron Oil & Gas Company
Treasury Division 0000 Xxxxx
00xx Xxxxx, Xxxxx Xxxxx Xxxxxxx, Xxxxx 00000
Royal Bank Plaza Attn: Senior Vice President
Toronto, Ontario and Xxxxx Xxxxxxxxx Xxxxxxx
XXXXXX X0X 0X0 Fax No: (000) 000-0000
Attn: Documentation Manager
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 upon
actual receipt if received during the recipient's normal business hours, or 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. MISCELLANEOUS. THIS GUARANTY SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS,
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 Counterparty, its successors and assigns. The Guaranty
embodies the entire agreement and understanding between Guarantor and
Counterparty 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. This Guaranty may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty on the
date first above written.
ENRON OIL & GAS COMPANY
By: /s/ XXX X. XXXX
___________________________
Name: Ben. X. Xxxx
_________________________
Title: VP and Controller
________________________
