Guarantee
Schedule 14A.1, cl 3
To: [Clearing manager] (the "Clearing
Manager")
[address]
Attention: [name]
Dear Sir/Madam
1.
[Bank] (the "Bank") refers to each
obligation of [Participant] (the "Principal") to pay amounts the
Principal, now or at any time, owes to, and is invoiced by, the Clearing Manager (whether as principal or agent) together
with default interest, if any, in relation to such amounts (the
"Obligations") under the Electricity Industry Participation Code 2010
(the "Code").
2.
The Bank unconditionally guarantees to pay the
Clearing Manager an amount specified in each such demand provided that—
[(a) [the Bank's liability under this guarantee will not exceed
$[insert amount] (the “Maximum Amount”); and]
[Note: Bank to elect either this
paragraph or the following paragraph].
[(a) the Bank's liability under this guarantee will not exceed the
Maximum Amount as defined below—
(i)
The sum of the amounts calculated for all trading
periods to which this guarantee applies in any period to which a demand under
this guarantee relates in accordance with the following formula:
A*B
where
A is [X] MWh
B is the final price for the trading period at the [specify]
[grid injection point/grid exit point/reference point]; and
(ii)
For the purposes of paragraph 2(a)(i), this guarantee applies to every trading period within
any period to which a demand under this guarantee relates as follows:
A.
From the "Starting Date", being
the later of—
1.
the start of the period; and
2.
[date]; and
B.
Until the "Final Date", being the
earlier of—
1.
the end of the period; and
2.
the Final Date as
notified to the Clearing Manager under paragraph 2(a)(iii); and
3.
[date]; and
(ii)
Despite anything in this guarantee or in the Code,
the Bank may give the Clearing Manager notice of the Final Date for the
purposes of paragraph 2(a)(ii)B. The Final Date is the later of the date
specified in the notice or two
business days after the date on which the Clearing Manager receives the notice; and]
(b)
the Clearing Manager's demand
is made in writing and is signed by or purported to be signed by an authorised
signatory; and
(c)
a certificate signed by or purported to be signed
by the Clearing Manager's authorised signatory and certifying that the
Principal has failed, in whole or in part, to fulfil the Obligations
accompanies the demand, such certificate will be conclusive proof of such
failure.
3.
The Bank's liability under this guarantee will not
be affected, discharged, or diminished by any
act, omission, or matter, which, but for this provision, would have affected,
discharged, or diminished a guarantor's liability, but would not have affected,
discharged, or diminished the Bank’s liability had it been a principal debtor, including:
(a)
the
insolvency, liquidation, or dissolution of the Principal or any other person,
the appointment of any receiver, manager, inspector, trustee, statutory
manager, or other similar person in respect of the Principal or any other
person, or any change in the Principal’s status, function, control, or
ownership; and
(b)
any
of the Obligations, or the obligations of any person under any security or
guarantee held in relation to any of the Obligations, being or becoming in
whole or in part void, voidable, defective, illegal, invalid, or unenforceable
in any respect or ranking after any other security; and
(c)
any
time, credit or other indulgence or other concession being granted or agreed to
be granted by the Clearing Manager to, or any composition or other arrangement
made with or accepted from, the Principal in respect of any of the Obligations
or the obligations of any person under any security or guarantee held in
relation to the same; and
(d)
any
variation of the terms of any of the Obligations or of any security or guarantee
(including under this guarantee) held in relation to the same; and
(e)
any
failure to realise or fully realise the value of, or any release, discharge,
exchange, or substitution of, any security or guarantee held in relation to any
of the Obligations; and
(f)
any
failure (whether intentional or not) to take, fully take or perfect any
security now or in the future agreed to be taken by the Clearing Manager in
relation to any of the Obligations; and
(g)
any
other act, event or omission that, but for this clause 3, would or might
operate or discharge, impair,
or otherwise affect
any of the obligations of the
Guarantor under this guarantee or any of the rights, powers, or remedies
conferred upon the Clearing Manager by the rules or by law.
4.
Subject to paragraph 5 below, this guarantee will
continue in force until the date at which the Principal ceases to be bound by
the Code and has discharged its obligations to the Clearing Manager
under the Code, at which time the Clearing Manager will return this guarantee
to the Bank.
[5. Despite anything else in
this guarantee, the Bank may at any time pay the
Clearing Manager the Maximum Amount less any amount or amounts the Bank may
previously have paid under this guarantee or such lesser sum as the Clearing
Manager may require. Upon payment of that sum, this guarantee shall be
cancelled and the Bank shall have no further liability.]
[Note:
Bank to elect either this paragraph or the following paragraph as a method
of cancellation.]
[5. Despite
anything else in this guarantee, the Bank may cancel this guarantee by giving
90 days’ notice in writing to the Clearing Manager. Following
cancellation of this guarantee, the
Bank remains liable for any Obligations incurred before the
effective date of cancellation, but shall not be liable for any Obligations
incurred after that date.]
6. This guarantee may be assigned
by the Clearing Manager without the Bank’s consent. It will bind the successors
and assigns of the Bank.
7. This
guarantee is governed by New Zealand law and the parties irrevocably submit to
the non-exclusive jurisdiction of the courts of New Zealand.
[insert execution block for Bank]
Schedule 14A.2: replaced, on 1 November 2018,
by clause 110 of the Electricity Industry Participation Code Amendment (Code
Review Programme) 2018.