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Exhibit 10.4
PAYMENT GUARANTY
This PAYMENT GUARANTY, dated as of December 17, 2008 (this "
Guaranty "), is made by Électricité de France
SA, a société anonyme organized under the laws of
France (" Guarantor "), in favor of Constellation Energy
Group, Inc., a corporation organized under the laws of the State of
Maryland (" Seller ").
W I T N E S S E T H:
WHEREAS, on the date of this Guaranty, Seller, EDF Development,
Inc., a corporation organized under the laws of the State of
Delaware (" Purchaser "), Électricité de
France International, S.A., a société anonyme
organized under the laws of France, and Constellation Energy
Nuclear Group, LLC, a limited liability company organized under the
laws of the State of Maryland (the " Company "), have
entered into that certain Master Put Option and Membership Interest
Purchase Agreement, dated as of the date of this Guaranty (as it
may be amended, modified or supplemented from time to time in
accordance with its terms, the " Master Agreement "), for
the purchase by Purchaser of 49.99% of Seller’s membership
interests in the Company;
WHEREAS, pursuant to the terms of the Master Agreement,
Purchaser has granted Seller an irrevocable right to sell to
Purchaser (the " Put Option "), and Purchaser has assumed an
obligation to purchase from Seller all, but not less than all, of
Seller’s ownership interest in certain non-nuclear generation
assets;
WHEREAS, in connection with the execution and delivery of the
Master Agreement on the date of this Guaranty, Purchaser and Seller
have entered into a purchase agreement (the " Series B Preferred
Purchase Agreement ") whereby Purchaser has agreed to purchase,
upon the terms and subject to the conditions set forth in the
Series B Preferred Purchase Agreement, nonconvertible cumulative
preferred stock of Seller;
WHEREAS, in connection with the execution of each of the Master
Agreement and the Series B Preferred Purchase Agreement, the
parties hereto wish to enter into this Guaranty pursuant to which
Guarantor agrees, subject to the terms, conditions and limitations
stated herein, to provide a guaranty of the payment obligations of
Purchaser under each of the Master Agreement and the Series B
Preferred Purchase Agreement.
WHEREAS, Guarantor is the parent company of Purchaser; and
NOW, THEREFORE, in consideration of the mutual terms, conditions
and other agreements set forth herein, the receipt and sufficiency
of which are hereby acknowledged, intending to be legally bound
hereby, the parties hereto agree as follows:
Section 1. Except as otherwise defined herein,
capitalized terms used herein shall have the meanings given to them
in each of the Master Agreement and the Series B Preferred Purchase
Agreement.
Section 2. Guarantor hereby irrevocably, absolutely
and unconditionally guarantees the full and prompt payment, as and
when due and payable, of all of the
Purchaser’s payment obligations to Seller
under the Master Agreement and the Series B Preferred Purchase
Agreement (collectively, the " Closing Documents "),
including, without limitation, the payment of any and all damages
(other than any indirect, punitive, special or consequential
damages as determined by the arbitral body under Section 11)
arising under the Closing Documents for which Purchaser is liable
to Seller (the " Guaranteed Obligations "); provided that
Guarantor’s aggregate liability under this Guaranty
(including, without limitation, this Section 2) shall not, in
any event and under any circumstance and notwithstanding anything
to the contrary contained in this Guaranty or any agreement or
document related hereto, exceed the amount (such amount, the "
Guaranty Limits ") that is equal to:
(a) With respect to the Master Agreement:
(1) During the period from the date hereof until (A) any
Cash Redemption of the Series B Preferred and surrender of such
Series B Preferred in accordance with Section 1.3(a) of the
Master Agreement, or (B) if there has occurred a Note
Redemption, such time as the notes issued to Purchaser in
connection therewith have been repaid or otherwise retired,
$500,000,000 (including any and all liabilities related to the Put
Option); and
(2) During the period after (A) any Cash Redemption of the
Series B Preferred and surrender of such Series B Preferred in
accordance with Section 1.3(a) of the Master Agreement, or
(B) if there has occurred a Note Redemption, such time as the
notes issued to Purchaser in connection therewith have been repaid
or otherwise retired, $1,500,000,000 (including any and all
liabilities related to the Put Option); and
(b) With respect to the Series B Preferred Purchase Agreement,
$1,000,000,000.
For the avoidance of doubt, this Guaranty is subject to the
terms of Section 9.12 of the Master Agreement, including
clauses (a)(i)(B) and (a)(i)(C) thereof, and this Guaranty is not
intended to increase or otherwise modify the obligations of
Purchaser thereunder. Guarantor agrees that, in the event that
Purchaser fails to timely satisfy any of its payment obligations to
Seller under the Closing Documents, then Guarantor will pay
(subject at all times to the Guaranty Limits), such Guaranteed
Obligations in the place and stead of Purchaser. The Guarantor
agrees that its guaranty constitutes a guaranty of payment when due
and not of collection.
Section 3. Guarantor represents and warrants to
Seller as follows:
(a) It is duly organized, validly existing, and in good standing
under the laws of France. It has the power and authority to execute
and deliver this Guaranty and to perform its obligations
hereunder.
(b) The execution and delivery by it of this Guaranty and the
performance of its obligations hereunder have been duly authorized
by all necessary corporate action.
(c) This Guaranty has been duly executed and delivered by it and
constitutes a valid and binding obligation of it, enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’
rights generally and to general principles of equity.
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(d) The execution and delivery by it of this
Guaranty, and the performance by it of its obligations hereunder,
do not and will not (i) violate or contravene any provision of
its organizational documents, (ii) violate any law or order of
any Governmental Authority to which it is subject, or
(iii) conflict with or result in a breach of any material term
or provision of or constitute a default under or result in the
maturing of any Indebtedness pursuant to any indenture, mortgage,
deed of trust, loan agreement, or other instrument to which it is a
party or by which its properties are bound, except to the extent
such conflict or breach under this clause (iii) would not have
a material adverse effect on the business or operations of the
Guarantor, or the ability of the Guarantor to perform its
obligations hereunder.
(e) No notice or filing with, or approval of, any Governmental
Authority is required by it for the due execution, delivery or
performance of this Guaranty or for the validity or enforceability
thereof.
(f) The payment obligations hereunder are unconditional and
unsubordinated general obligations
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