EXH.10(i)96
CONFORMED COPY
GUARANTEE AGREEMENT
THIS GUARANTEE AGREEMENT (the "Agreement"), dated August 7, 2000, by and
between Dynegy Holdings, Inc., a Delaware corporation ("Guarantor"), Central
Xxxxxx Gas & Electric Corporation, a New York corporation ("Central Xxxxxx"),
Consolidated Edison Company of New York, Inc., a New York corporation ("Con
Edison"), and Niagara Mohawk Power Corporation, a New York corporation ("Niagara
Mohawk") (each a "Seller," and collectively, "Sellers"). Guarantor and Sellers
are referred to herein individually as a "Party" and collectively as the
"Parties."
WHEREAS, Central Xxxxxx, Con Edison, Niagara Mohawk and Dynegy Power Corp.,
a Delaware corporation and a wholly-owned subsidiary of Guarantor ("Buyer"), are
parties to that certain Asset Purchase and Sale Agreement, dated the date hereof
(as amended, supplemented or otherwise modified from time to time, the "Roseton
Asset Sale Agreement"), pursuant to which Buyer has agreed to purchase, and
Central Xxxxxx, Con Edison and Niagara Mohawk have agreed to sell, the Auctioned
Assets (as defined in the Roseton Asset Sale Agreement);
WHEREAS, Central Xxxxxx and Buyer are parties to that certain Asset
Purchase and Sale Agreement, dated the date hereof (as amended, supplemented or
otherwise modified from time to time, the "Danskammer Asset Sale Agreement")
(the Danskammer Asset Sale Agreement and the Roseton Asset Sale Agreement are
referred to herein collectively as the "Asset Sale Agreements"), pursuant to
which Buyer has agreed to purchase, and Central Xxxxxx has agreed to sell, the
Auctioned Assets (as defined in the Danskammer Asset Sale Agreement);
WHEREAS, as a condition precedent to and in consideration of Sellers'
entering into the respective Asset Sale Agreements, Guarantor has agreed to
guarantee payment and performance of Buyer's covenants, agreements, obligations,
liabilities, representations and warranties under the Asset Sale Agreements, any
Ancillary Agreement or any other agreement or instrument related thereto or
entered into in connection therewith; and
WHEREAS, Guarantor will benefit from the transactions contemplated by the
Asset Sale Agreements.
NOW, THEREFORE, the Parties agree as follows:
Section 1. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the respective Asset Sale
Agreements. For purposes of this Agreement, the term "Buyer" shall include
Buyer, any Affiliate of Buyer that enters into any Ancillary Agreement and any
of their respective successors and assigns under the Asset Sale Agreements or
any Ancillary Agreement.
Section 2. GUARANTEE. Guarantor absolutely, irrevocably and unconditionally
guarantees, as a primary obligor and not merely as a surety, (a) the due and
punctual payment of (i) each payment required to be made by Buyer under the
Asset Sale Agreements or any Ancillary Agreement, when and as due, including
payments in respect of reimbursement of disbursements and interest thereon and
(ii) all other monetary obligations, including indemnities, fees, costs and
expenses, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of Buyer, when and as due, under the
Asset Sale Agreements, any Ancillary Agreement or any other agreement or
instrument related thereto (all such obligations referred to in this clause (a)
being collectively referred to as the "Monetary Obligations") and (b) the due
and punctual performance and observance of, and compliance with, all covenants,
agreements, obligations, liabilities, representations and warranties of Buyer
under or pursuant to the Asset Sale Agreements, any Ancillary Agreement or any
other agreement or instrument related thereto (all such obligations referred to
in the preceding clauses (a) and (b) being collectively referred to as the
"Obligations"). Guarantor further agrees that the Obligations may be extended,
amended, modified or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee notwithstanding
any extension, amendment, modification or renewal of any Obligation by any
Seller or Sellers and Buyer.
Section 3. OBLIGATIONS NOT WAIVED. To the fullest extent permitted by
applicable law, Guarantor waives all notices whatsoever with respect to this
Agreement or with respect to the Obligations, including presentment to, demand
of payment from and protest to Buyer of any of the Obligations, and notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of Guarantor hereunder shall
not be affected by (a) the failure of any Seller or Sellers to assert any claim
or demand or to enforce or exercise any right or remedy against Buyer in respect
of the Obligations or otherwise under the provisions of the Asset Sale
Agreements, any Ancillary Agreement or otherwise or, in each case, any delay in
connection therewith, or (b) any rescission, waiver, amendment or modification
of, or any release from any of the terms or provisions of, this Agreement, the
Asset Sale Agreements, any Ancillary Agreement or any other agreement.
Section 4. CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. Guarantor
further agrees that its guarantee constitutes a continuing guarantee of payment
and performance when due, and not of collection, and Guarantor further waives
any right to require that any resort be had by any Seller or Sellers to any
security.
Section 5. NO DISCHARGE OR DIMINISHMENT OF GUARANTEE.
(a) The obligations of Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination, or be subject to any defense
or setoff, counterclaim, recoupment or termination whatsoever, or otherwise be
affected, for any reason (other than the performance in full of all Obligations,
including the indefeasible payment in full in cash of all Monetary Obligations,
and the termination of all the Obligations), including:
(i) any claim of waiver, release, surrender, alteration or
compromise of any of the Obligations;
(ii) the invalidity, illegality or unenforceability of the
Obligations;
(iii) the occurrence or continuance of any event of bankruptcy,
reorganization, insolvency, receivership or other similar proceeding with
respect to Buyer or any other person (for purposes hereof, "person" means any
individual, partnership, limited liability company, joint venture, corporation,
trust, unincorporated organization or Governmental Authority), or the
dissolution, liquidation or winding up of Buyer or any other person;
(iv) any permitted assignment or other transfer of this Agreement by
any Seller or Sellers or any permitted assignment or other transfer of the Asset
Sale Agreements or any Ancillary Agreement in whole or in part;
(v) any sale, transfer or other disposition by Guarantor of any
direct or indirect interest it may have in Buyer or any other change in
ownership or control of Buyer; or
(vi) the absence of any notice to, or knowledge on behalf of,
Guarantor of the existence or occurrence of any of the matters or events set
forth in the foregoing clauses.
(b) Without limiting the generality of the foregoing, the obligations of
Guarantor hereunder shall not be discharged or impaired or otherwise affected by
the failure of any Seller or Sellers to assert any claim or demand or to enforce
any remedy under the Asset Sale Agreements, any Ancillary Agreement or any other
agreement, by any waiver or modification of any provision thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of Guarantor or that would otherwise operate as a
discharge of Guarantor as a matter of law or equity (other than the performance
in full of all Obligations, including the indefeasible payment in full in cash
of all Monetary Obligations, and the termination of all the Obligations).
Section 6. DEFENSES WAIVED. To the fullest extent permitted by applicable
law, Guarantor waives any defense based on or arising out of the
unenforceability of the Obligations or any part thereof from any cause. Sellers
may compromise or adjust any part of the Obligations, make any other
accommodation with Buyer or exercise any other right or remedy available to it
against Buyer, without affecting or impairing in any way the liability of
Guarantor hereunder except to the extent all the Obligations have been fully and
finally performed, including the indefeasible payment in full of all Monetary
Obligations, and terminated. To the fullest extent permitted by applicable law,
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of Guarantor
against Buyer or any security. Guarantor waives each right and all defenses to
which it may be entitled under applicable law as in effect or construed from
time to time.
Section 7. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. Guarantor
represents and warrants to Sellers as follows:
(a) ORGANIZATION. Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as is now being conducted.
(b) AUTHORITY RELATIVE TO THIS AGREEMENT. Guarantor has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution and delivery by Guarantor of
this Agreement and performance by Guarantor of its obligations hereunder have
been duly and validly authorized by the Board of Directors of Guarantor and no
other corporate proceedings on the part of Guarantor are necessary to authorize
this Agreement or performance by Guarantor of its obligations hereunder. This
Agreement has been duly and validly executed and delivered by Guarantor and this
Agreement constitutes a valid and binding agreement of Guarantor, enforceable
against Guarantor in accordance with its terms.
(c) CONSENTS AND APPROVALS; NO VIOLATION.
(i) Subject to obtaining the Buyer Required Regulatory Approvals,
neither the execution and delivery of this Agreement by Guarantor nor
performance by Guarantor of its obligations hereunder will (i) conflict with or
result in any breach of any provision of the organizational or governing
documents or instruments of Guarantor, (ii) result in a default (or give rise to
any right of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which Guarantor or any of
its subsidiaries is a party or by which any of their respective assets may be
bound or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Guarantor, or any of its assets, except in the case of
clauses (ii) and (iii) for such failures to obtain a necessary consent, defaults
and violations which would not, individually or in the aggregate, have a
material adverse effect on the ability of Guarantor to discharge its obligations
under this Agreement (a "Guarantor Material Adverse Effect").
(ii) No declaration, filing or registration with, or notice to, or
authorization, consent or approval of any Governmental Authority is necessary
for performance by Guarantor of its obligations hereunder, other than such
declarations, filings, registrations, notices, authorizations, consents or
approvals which, if not obtained or made would not, individually or in the
aggregate, have a Guarantor Material Adverse Effect.
Section 8. AGREEMENT TO PERFORM AND PAY; SUBORDINATION. In furtherance of
the foregoing and not in limitation of any other right that Sellers have at law
or in equity against Guarantor by virtue hereof, upon the failure of Buyer, to
perform or pay any Obligation when and as the same shall become due, Guarantor
hereby promises to and will forthwith, as the case may be, (a) perform, or cause
to be performed, such unperformed Obligations and (b) pay, or cause to be paid,
to Sellers in cash the amount of such unpaid Monetary Obligations. Upon payment
by Guarantor of any sums to Sellers as provided above, all rights of Guarantor
against Buyer, arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Monetary Obligations. If any amount shall erroneously be
paid to Guarantor on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of
Buyer, such amount shall be held in trust for the benefit of Sellers and shall
forthwith be paid to Sellers to be credited against the payment of the Monetary
Obligations or performance in accordance with the terms of the Asset Sale
Agreements or any Ancillary Agreement, as applicable.
Section 9. INFORMATION. Guarantor assumes all responsibility for being and
keeping itself informed of Buyer's financial condition and assets, and of all
other circumstances bearing upon the risk of nonperformance of the Obligations
(including the nonpayment of Monetary Obligations) and the nature, scope and
extent of the risks that Guarantor assumes and incurs hereunder, and agrees that
Sellers do not have any duty to advise Guarantor of information known to it
regarding such circumstances or risks.
Section 10. TERMINATION AND REINSTATEMENT. The guarantee made hereunder (a)
shall terminate when all the Obligations have been (i) performed in full,
including the indefeasible payment in full in cash of the Monetary Obligations
or (ii) terminated and (b) shall continue to be effective or be reinstated, as
the case may be, if at any time any payment, or any part thereof, of any
Obligation is rescinded or must otherwise be restored by Sellers upon the
bankruptcy or reorganization of Buyer or Guarantor or for any other reason.
Section 11. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and
all of the provisions hereunder shall be binding upon and inure to the benefit
of the Parties and their respective successors and permitted assigns, and
nothing herein express or implied will give or be construed to give any other
person any legal or equitable rights hereunder. Neither this Agreement nor any
of the rights, interests and obligations hereunder shall be assigned by
Guarantor, including by operation of law, without the prior written consent of
Sellers; PROVIDED, HOWEVER, that no assignment or transfer of rights or
obligations by Guarantor shall relieve it from the full liabilities and the full
financial responsibility, as provided for under this Agreement, unless and until
the transferee or assignee shall agree in writing to assume such obligations and
duties and Sellers have consented in writing to such assumption.
Section 12. AMENDMENT AND MODIFICATION; EXTENSION; WAIVER. This Agreement
may be amended, modified or supplemented only by an instrument in writing signed
on behalf of each of the Parties. Any agreement on the part of a Party to any
extension or waiver in respect of this Agreement shall be valid only if set
forth in an instrument in writing signed on behalf of such Party. The failure of
a Party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law).
Section 14. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given (as of the time of delivery or, in the
case of a telecopied communication, of the times of confirmation) if delivered
personally, telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the Parties at the following addresses (or at
such other address for a Party as shall be specified by like notice):
if to Central Xxxxxx, to:
Central Xxxxxx Gas & Electric Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Brand, Senior Vice President
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
if to Con Edison to:
Consolidated Edison Company of New York, Inc.
0 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: General Counsel
with a copy to:
Consolidated Edison Company of New York, Inc.
0 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Vice President, Energy Management
if to Niagara Mohawk, to:
Niagara Mohawk Power Corporation
000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
if to Guarantor, to:
c/o Dynegy Power Corp.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Director - Project Acquisitions
with a copy to:
Dynegy Power Corp.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
Section 15. JURISDICTION AND ENFORCEMENT.
(a) Each of the Parties irrevocably submits to the exclusive
jurisdiction of (i) the Supreme Court of the State of New York, Dutchess County
and (ii) the United States District Court for the Southern District of New York
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the Parties agrees to
commence any action, suit or proceeding relating hereto in the United States
District Court for the Southern District of New York or, if such suit, action or
proceeding may not be brought in such court for jurisdictional reasons, in the
Supreme Court of the State of New York, Dutchess County. Each of the Parties
further agrees that service of process, summons, notice or document by hand
delivery or U.S. registered mail at the address specified for such Party in
Section 14 (or such other address specified by such Party from time to time
pursuant to Section 14) shall be effective service of process for any action,
suit or proceeding brought against such Party in any such court. Each of the
Parties irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, Dutchess County and (ii) the United States District Court for the Southern
District of New York and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
(b) The Parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the Parties shall be entitled equitable relief, including without
limitation, an injunction or injunctions to prevent breaches of this Agreement
and to specifically enforce the terms and provisions of this Agreement, this
being in addition to any other remedy to which they are justly entitled to,
whether at law or in equity.
Section 16. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by Guarantor herein and in the certificates
or other instruments prepared or delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by Sellers and shall
unconditionally survive the consummation of the transactions contemplated by the
Asset Sale Agreements, regardless of any investigation made by Sellers, and
shall continue in full force and effect as long as any Obligations remain
outstanding.
Section 17. EFFECTIVENESS; COUNTERPARTS. This Agreement shall become
effective when executed by the Parties. This Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 18. RULES OF INTERPRETATION. The rules of interpretation specified
in Section 12.8 of the respective Asset Sale Agreements shall be applicable to
this Agreement.
Section 19. SEVERABILITY.
(a) If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the Parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
Parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
(b) In the event that the provisions of this Agreement are claimed or
held to be inconsistent with any other agreement or instrument evidencing the
Obligations, the terms of this Agreement shall remain fully valid and effective.
Section 20. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding of the Parties in respect of the matters contemplated hereby.
There are no restrictions, promises, representations, warranties, covenants or
undertakings other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the Parties
with respect to the matters contemplated hereby.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Guarantee Agreement has been duly
executed and delivered by the Parties as of the date first above written.
CENTRAL XXXXXX GAS & ELECTRIC
CORPORATION
By: /s/ XXXXXX X. BRAND
-----------------------------------------
Name: Xxxxxx X. Brand
Title: Senior Vice President
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Exec. V. P. and CFO
NIAGARA MOHAWK POWER
CORPORATION
By: /s/ XXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior V.P. - Field Operations
DYNEGY HOLDINGS, INC.
By: /s/ X. X. XXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Director - Project Acquisitions
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Brand, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXXXXX XXXXXXX
---------------------------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXXXXX XXXXXXX
---------------------------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 4th day of August 2000, before me, the undersigned,
personally appeared Xxxxxx X. Xxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
on behalf of which the individual(s) acted, executed the instrument.
/s/ XXXXX X. XXX
---------------------------------------
Notary
[Notary Stamp]
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 7th day of August 2000, before me, the undersigned,
personally appeared Xxxx X. Xxxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that she executed the same in
her capacity, and that by her signature on the instrument, the individual, or
the person on behalf of which the individual acted, executed the instrument.
/s/ XXXXXXX XXXXXXX
---------------------------------------
Notary
[Notary Stamp]
