EXHIBIT __
FORM OF GUARANTY
This Guaranty Agreement (“Guaranty”) dated as of _________________, is made by ______________________
__________________________________ (“Contractor’s Guarantor”), in favor of ___[XXX]__(“Owner”), a [state A]
corporation.
WHEREAS, ___[YYY]__, a [state B] Corporation (the “Contractor”) and Owner are parties to the
ENGINEERING, PROCUREMENT, AND CONSTRUCTION CONTRACT dated ________________________, (the
“Contract”), and any other documents, instruments or agreements executed in connection herewith (collectively referred
to as the “Contract”); and
WHEREAS, Guarantor will directly or indirectly benefit from the Contract and has agreed to enter into this
Guaranty to provide assurance for the performance of Contractor’s obligations in connections with the Contract; and
WHEREAS, the execution and delivery of this Guaranty is a condition of the Owner entering into the Contract,
which Guarantor acknowledges Owner would not do if Guarantor did not execute and deliver this Guaranty.
NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the adequacy,
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees as follows:
1.
GUARANTY. Guarantor hereby irrevocably, unconditionally and absolutely guarantees the full and timely
performance of all of the terms, covenants, agreements and obligations of the Contractor in relation to the
Contract and the full and timely payment when due, whether on demand, at stated maturity, by acceleration or
otherwise, of the obligations of Contractor under the Contract (collectively, the “Obligations”) to the Owner in
accordance with the Contract, as such Contract may be amended or modified from time to time. If Contractor
fails to pay or perform any Obligations, Guarantor shall forthwith pay to the Owner the amount due or perform
the Obligations in accordance with this Guaranty. This Guaranty is a continuing guaranty, and shall constitute a
guaranty of payment and not of collection. Guarantor reserves the right to assert rights, setoffs, counterclaims
and other defenses which Contractor may have to payment or performance of any Obligation under a Contract,
other than defenses arising from bankruptcy, insolvency, dissolution, or liquidation of Contractor and other
defenses expressly waived herein. Except as provided herein, the Obligations assumed by Guarantor shall in no
event be greater than the obligations of the Contractor under the Contract.
The obligations of the Guarantor hereunder are several from Contractor or any other person, and are primary
obligations concerning which the Guarantor is the principal obligor. There are no conditions precedent to the
enforcement of this Guaranty, except as expressly contained herein. This Guaranty shall be reinstated if and to
the extent that any prior payment by Contractor under the Contract or pursuant thereto is rescinded or must
otherwise be returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of Contractor,
and is so rescinded or returned to the party or parties making such payment, all as though such payment had not
been made.
2.
DEMAND AND PAYMENT. If Contractor fails to pay or perform any Obligations, Owner may make a demand
upon the Guarantor for the payment and/or performance of the Obligations (hereinafter referred to as a
“Demand”). A Demand shall be in writing and shall briefly specify in reasonable detail what amount Contractor
has failed to pay or the Obligations Contractor has failed to perform and an explanation of why such payment or
performance is due, with a specific statement that the Owner is calling upon Guarantor to pay or perform under
this Guaranty. A Demand satisfying the foregoing requirements shall be deemed sufficient notice to Guarantor
that it must pay or perform the Obligations subject to Guarantor’s rights under this Guaranty. A single written
Demand shall be effective as to any specific failure to pay or perform during the continuance of such failure to
pay or perform and additional written Demands concerning such failure to pay or perform shall not be required
until such failure to pay or perform is cured. Any payment or performance shall be made no later than five (5)
business days following Owner’s delivery to Guarantor of a Demand.
3.
REPRESENTATION AND WARRANTIES. Guarantor represents and warrants that:
(a)
The Guarantor is duly organized, validly existing and in good standing under the laws of the jurisdiction
of its incorporation and has full corporate power and authority to execute, deliver and carry out the terms
and provisions of this Guaranty; and
(b)
The execution, delivery and performance of this Guaranty have been and remain duly authorized by all
necessary corporate action and do not contravene the Guarantor’s constitutional documents or any
contractual restriction binding on the Guarantor or its assets; and
(c)
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
(d)
This Guaranty constitutes a valid and legally binding agreement of Guarantor enforceable against
Guarantor in accordance with its terms, 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.
(e)
There are no actions, suits or proceedings pending, or to the knowledge of the Guarantor, threatened
against or affecting the Guarantor before any court, governmental agency or arbitrator, which may, in any
one case or in the aggregate, materially adversely affect the financial conditions, operations, properties or
business of the Guarantor or of the ability of the Guarantor to perform its obligations under the Guaranty.
4.
ENTIRE AGREEMENT; AMENDMENT. This Guaranty embodies the entire agreement between Guarantor and
Owner with respect to matters addressed herein and shall replace, supersede, and otherwise terminate any and all
Guarantees previously or concurrently issued by Guarantor to Owner on behalf of Contractor. No term or
provision of this Guaranty shall be amended, modified, altered, waived, or supplemented except in a writing
signed by the Guarantor and Owner.
5
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; (c) any right to require that any
action or proceeding be brought against Contractor or any other person, or except as expressly hereinabove set
forth, to require that the Owner seek enforcement of any performance against Contractor or any other person,
prior to any action against Guarantor under the terms hereof; and (d) any circumstance whatsoever or any act of
the Contractor or any existence of or reliance on any representation by the Contractor that might otherwise
constitute a legal or equitable defense available to, or a discharge of, the Guarantor
6.
WAIVER OF SUBROGATION. Until all Obligations have been irrevocably paid and performed in full,
Guarantor shall have no right of subrogation and Guarantor waives any right to enforce any remedy which the
Owner now has or may hereafter have against Contractor and any benefit of and any right to participate in any
security now or hereafter held by the Owner.
7.
NO WAIVER. Except as to applicable statutes of limitation, no failure on the part of Owner to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
8.
EXPIRATION AND/OR TERMINATION. This Guaranty shall expire, without any action on the part of
Guarantor, following the performance of Contractor’s obligations under the Contract. Expiration of this Guaranty
shall not affect Guarantor’s liability with respect to any Obligations entered into or arising prior to the effective
date of the expiration.
9.
ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Guaranty shall benefit the Owner and inure to the benefit
of its successors and assigns, including the assignees of any Obligations hereby guaranteed, and binds Guarantor’s
successors and assigns; provided, however, that neither the Guarantor nor the Owner shall assign this Guaranty
nor delegate any of its duties hereunder without the express written consent of the other, which consent shall not
be unreasonably withheld.
10.
FEES AND EXPENSES. Guarantor shall pay Owner upon demand reasonable attorneys' fees and all costs and
other expenses which Owner expends or incurs in collecting the Obligations or enforcing this Guaranty against
Guarantor, whether or not suit is filed.
11.
SEVERABILITY. If any provisions of the Guaranty or any application thereof shall be invalid or unenforceable,
the remainder of this Guaranty and any other application of such provision shall not be affected thereby.
12.
NOTICE. Any Payment Demand, notice, request, instruction, demand, 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 or registered mail, postage prepaid and return receipt requested, or by telegram,
telecopier, or facsimile, as follows:
To Guarantor:
To Owner:
Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by telegram,
telecopier, or facsimile 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, telecopier or facsimile shall be confirmed promptly after
transmission in writing by certified or registered mail or personal delivery. Any party may change any address to
which Notice is to be given to it by giving notice of such change of address as provided above.
THIS GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. THE GUARANTOR AND THE OWNER, BY ACCEPTANCE OF
THIS GUARANTY, WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING FROM OR RELATING TO THIS GUARANTY.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered by its duly
authorized officer as of the date first written above.
Guarantor: ____________________________
By:
_______________________________
Name: _______________________________
Title:
_______________________________