Common use of Payment Guaranty Clause in Contracts

Payment Guaranty. Guarantor absolutely, irrevocably and unconditionally guarantees to Contract Party all payment obligations of Obligor set forth in the Gas Contract and interest thereon accrued as provided in the Gas Contract (the "Obligations"); provided, the applicable rate of interest shall never exceed the maximum lawful rate permitted by law. This guaranty of payment is a continuing guaranty effective during the term of the Gas Contract and until complete performance by Obligor of its obligations under the Gas Contract and payment in full of all Obligations; provided, in all instances this Guaranty shall continue for a period of six months after the termination of the Gas Contract for the purpose of guaranteeing indemnity Obligations which survive the termination of the Gas Contract as set forth in Section 8.4 of the Gas Contract (the "Indemnity Period"). With respect to any Claims threatened or filed as of the close of the Indemnity Period, the Obligations resulting from any such Claims shall be guaranteed hereunder. No notice of the Obligations or any Transaction need be given in any form to Guarantor at any time and Guarantor WAIVES any such notice and the right to consent to the Obligations or any Transaction. Guarantor WAIVES any right to require as a condition to its obligations hereunder that (i) collateral be applied to the Obligations, (ii) presentment or demand be made upon Obligor or (iii) action be brought against Obligor or any other person or entity except Guarantor, should Contract Party seek to enforce the obligations of Guarantor. Specifically, without limitation, Guarantor WAIVES any right to require, substantively or procedurally, that (i) a judgment previously be rendered against Obligor or any other person or entity except Guarantor, (ii) Obligor or any other person or entity be joined in any action against Guarantor or (iii) an action separate from one against Guarantor be brought against Obligor or any other person or entity. The obligations of Guarantor are several from those of Obligor or any other person or entity, including, without limitation, any other surety for Obligor, and are primary payment obligations concerning which Guarantor is the principal obligor. To the extent Obligor shall fail to timely make payment of any Obligations, Guarantor shall satisfy its obligations hereunder regardless of whether Contract Party or any other person or entity shall have taken any steps to enforce its rights against Obligor or any other person or entity except Guarantor. The obligations of Guarantor hereunder shall in no way be affected or impaired by reason, and Guarantor WAIVES its right to prior notice, of the happening from time to time of any of the following: (i) extensions (whether or not material) of the time for payment of all or any portion of the Obligations, (ii) the modification or amendment in any manner (whether or not material) of the Gas Contract or the Obligations, (iii) except for applicable statutes of limitations, any failure, delay or lack of diligence on the part of Contract Party, or any other person or entity to enforce, assert or exercise any right, privilege, power or remedy conferred on Contract Party or any other person or entity in the Gas Contract or at law, or any action on the part of Contract Party or such other person or entity granting indulgence or extension of any kind, (iv) the settlement or compromise of any Obligations, (v) the status, composition, structure or name of Obligor change, including, without limitation, by reason of merger, dissolution, consolidation or reorganization, (vi) except for releases or waivers resulting from the rights or defenses of Obligor that Guarantor has reserved in Section 3, the release or waiver, by operation of law or otherwise, of the performance or observance by Obligor of any express or implied covenant, term or condition in the Gas Contract, (vii) the release or waiver, by operation of law or otherwise, of the performance or observance by any co-guarantor, surety, endorser or other obligor of any express or implied covenant, term or condition to be performed or observed by it under the Gas Contract or related document and (viii) the failure to acquire, perfect or maintain perfection of any lien on, or security interest in, any collateral provided by Obligor to Contract Party or the release of any such collateral or the release, modification or waiver of, or failure to enforce, any pledge, security device, guaranty, surety or other indemnity agreement in respect of such collateral. NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF GUARANTOR HEREUNDER SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES AND, UNLESS EXPRESSLY PROVIDED IN THE GAS CONTRACT, GUARANTOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OR ANY PENALTIES OR CHARGES ASSESSED BY ANY PERSON OR ENTITY FOR THE UNAUTHORIZED RECEIPT OF GAS. Upon 30 Days written notice and with the prior written consent of Contract Party, which consent shall not be unreasonably withheld, this Guaranty may be replaced by (i) a guaranty in identical form made by a guarantor of equal or better creditworthiness, including credit ratings by nationally recognized credit rating agencies, taking into consideration all relevant information concerning corporate structure, all relevant financial information, both current and projected, and all effects on the enforceability of the replacement guaranty, or (ii) a letter of credit in favor of Contract Party in the amount of the Maximum Limit (below defined), issued by a bank and in a form, each of which shall be reasonably satisfactory to Contract Party, taking into consideration all effects on the enforceability of the replacement letter of credit; provided, this Guaranty shall continue to apply to all Transactions in effect at the time this Guaranty is replaced until all such Transactions are completed and the replacement guaranty or letter of credit shall apply to only those Transactions formed after its execution and delivery.

Payment Guaranty. Guarantor Enron absolutely, irrevocably and unconditionally guarantees to Contract Party FPL all payment obligations of Obligor ECT set forth in the Gas Contract Sales Agreement and interest thereon accrued as provided in the Gas Contract Sales Agreement (the "“Obligations"”); provided, the applicable rate of interest shall never exceed the maximum lawful rate permitted by law. This guaranty of payment is a continuing guaranty effective during the term of the Gas Contract Sales Agreement and until complete performance by Obligor ECT of its obligations under the Gas Contract Sales Agreement and payment in full of all Obligations; provided, in all instances this Guaranty shall continue for a period of six months after the termination of the Gas Contract Sales Agreement for the purpose of guaranteeing indemnity Obligations which survive the termination of the Gas Contract Sales Agreement as set forth in Section 8.4 Sections 4 and 18 of the Gas Contract Sales Agreement (the "“Indemnity Period"”). With respect to any Claims threatened or filed as of the close of the Indemnity Period, the Obligations resulting from any such Claims shall be guaranteed hereunder. No notice of the Obligations or any Transaction this Agreement need be given in any form to Guarantor Enron at any time and Guarantor Enron WAIVES any such notice and the right to consent to the Obligations or any Transactionthis Agreement. Guarantor Enron WAIVES any right to require as a condition to its obligations hereunder that (i) collateral be applied to the Obligations, (ii) presentment or demand be made upon Obligor ECT or (iii) action be brought against Obligor ECT or any other person or entity except GuarantorEnron, should Contract Party FPL seek to enforce the obligations of GuarantorEnron. Specifically, without limitation, Guarantor Enron WAIVES any right to require, substantively or procedurally, that (i) a judgment previously be rendered against Obligor ECT or any other person or entity except GuarantorEnron, (ii) Obligor ECT or any other person or entity be joined in any action against Guarantor Enron or (iii) an action separate from one against Guarantor Enron be brought against Obligor ECT or any other person or entity. The obligations of Guarantor Enron are several from those of Obligor ECT or any other person or entity, including, without limitation, any other surety for ObligorECT, and are primary payment obligations concerning which Guarantor Enron is the principal obligorprincipal. To the extent Obligor ECT shall fail to timely make payment of any Obligations, Guarantor Enron shall satisfy its obligations hereunder regardless of whether Contract Party FPL or any other person or entity shall have taken any steps to enforce its rights against Obligor ECT or any other person or entity except GuarantorEnron. The obligations of Guarantor Enron hereunder shall in no way be affected or impaired by reason, and Guarantor Enron WAIVES its right to prior notice, of the happening from time to time of any of the following: (i) extensions (whether or not material) of the time for payment of all or any portion of the Obligations, (ii) the modification or amendment in any manner (whether or not material) of the Gas Contract Sales Agreement or the Obligations, (iii) except for applicable statutes of limitations, any failure, delay or lack of diligence on the part of Contract PartyFPL, or any other person or entity to enforce, assert or exercise any right, privilege, power or remedy conferred on Contract Party FPL or any other person or entity in the Gas Contract Sales Agreement or at law, or any action on the part of Contract Party FPL or such other person or entity granting indulgence or extension of any kind, (iv) the settlement or compromise of any Obligations, (v) the status, composition, structure or name of Obligor ECT change, including, without limitation, by reason of merger, dissolution, consolidation or reorganization, (vi) except for releases or waivers resulting from the rights or defenses of Obligor ECT that Guarantor Enron has reserved in Section 3, the release or waiver, by operation of law or otherwise, of the performance or observance by Obligor ECT of any express or implied covenant, term or condition in the Gas ContractSales Agreement, (vii) the release or waiver, by operation of law or otherwise, of the performance or observance by any co-guarantorEnron, surety, endorser or other obligor ECT of any express or implied covenant, term or condition to be performed or observed by it under the Gas Contract Sales Agreement or related document and (viii) the failure to acquire, perfect or maintain perfection of any lien on, or security interest in, any collateral provided by Obligor ECT to Contract Party FPL or the release of any such collateral or the release, modification or waiver of, or failure to enforce, any pledge, security device, guaranty, surety or other indemnity agreement in respect of such collateral. NOTWITHSTANDING THE FOREGOING, THE LIABILITY OF GUARANTOR ENRON HEREUNDER SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES AND, UNLESS EXPRESSLY PROVIDED IN THE GAS CONTRACTSALES AGREEMENT, GUARANTOR ENRON SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, IN TORT, CONTRACT OR OTHERWISE, OR ANY PENALTIES OR CHARGES ASSESSED BY ANY PERSON OR ENTITY FOR THE UNAUTHORIZED RECEIPT OF GAS. Upon 30 Days written notice and with the prior written consent of Contract PartyFPL, which consent shall not be unreasonably withheld, this Guaranty may be replaced by (i) a guaranty in identical form made by a guarantor Enron of equal or better creditworthiness, including credit ratings by nationally recognized credit rating agencies, taking into consideration all relevant information concerning corporate structure, all relevant financial information, both current and projected, and all effects on the enforceability of the replacement guaranty, or (ii) a letter of credit in favor of Contract Party FPL in the amount of the Maximum Limit (below defined), issued by a bank and in a form, each of which shall be reasonably satisfactory to Contract PartyFPL, taking into consideration all effects on the enforceability of the replacement letter of credit; provided, this Guaranty shall continue to apply to all Transactions Obligations in effect at the time this Guaranty is replaced until all such Transactions Obligations are completed and the replacement guaranty or letter of credit shall apply to only those Transactions Obligations formed after its execution and delivery.