EXHIBIT 10.12
GUARANTY DATED JANUARY 1, 2005 BETWEEN UGI
CORPORATION AND VIKING RESOURCES CORP.
GUARANTY
This Guaranty (the "Guaranty") is made by UGI Corporation ("Guarantor"),
a Pennsylvania corporation, effective as of January 1, 2005 (the "Effective
Date"), in favour of Viking Resources Corp. ("Creditor"), a Pennsylvania
corporation.
WHEREAS, UGI Energy Services, Inc. d/b/a GASMARK ("Debtor"), a
Pennsylvania corporation and Creditor are parties to various agreements for the
purchase, sale and/or transportation of natural gas (whether one or more, the
"Agreement"); and
WHEREAS, the execution and delivery of this Guaranty is a condition to
Creditor's further performance of its obligations under the terms of the
Agreement and Guarantor has agreed to provide assurance for the performance of
Debtor's obligations in connection with the Agreement.
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 agrees as follows:
1. GUARANTY. Guarantor hereby unconditionally and absolutely guarantees the
punctual payment when due of Debtor's payment obligations arising under the
Agreement, as may be amended or modified from time to time, together with
any interest thereon (collectively, the "Guaranteed Obligations"); provided,
however, that the total liability of Guarantor hereunder, regardless of any
amendment or modification to the Agreement, is limited to the lesser of (a)
all amounts owed by Debtor to Creditor under the Agreement or Seven Million
Dollars or ($7,000,000.00). Guarantor's obligations and liability under this
Guaranty shall be limited to payment obligations of Debtor and Guarantor
shall have no obligation to sell, deliver, supply or transport gas and/or
electricity.
2. WAIVER. This is a guaranty of payment and not of collection. Guarantor
hereby waives:
(a) notice of acceptance of this Guaranty, of the creation or existence
of any of the Guaranteed Obligations and of any action by Creditor
in reliance hereon or in connection herewith; and
(b) any requirement that suit be brought against, or any other action by
Creditor be taken against, or any notice default or other notice be
given to, or any demand be made on, Debtor or any other person, or
that any other action be taken or not taken as a condition to
Guarantor's liability for the Guaranteed Obligations or as a
condition to the enforcement of this Guaranty against Guarantor,
except as expressly defined herein.
3. TERM: TERMINATION. This Guaranty shall continue in full force and effect for
a term commencing on the Effective Date and continuing until March 31, 2007.
Notwithstanding the foregoing, this Guaranty may be terminated at any time
by the Guarantor by providing at least forty-five (45) days prior written
notice to Creditor; provided, however, upon termination hereof, Guarantor
agrees that the obligations and liabilities hereunder shall continue in full
force and effect with respect to any obligations incurred prior to the
termination date, plus any interest thereon, and any fees and costs of
enforcement in connection herewith.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations are
annulled, set aside, invalidated, declared to be fraudulent or preferential,
rescinded or must otherwise be returned, refunded or repaid by Creditor upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Debtor or any other guarantor, or upon or as a result of the appointment of
a receiver, intervenor or conservator of, or trustee or similar officer for,
Debtor or any other guarantor or Any substantial part of its property or
otherwise, all as though such payment or payments had not been made.
4. DEMAND. Prior to commencing any legal proceeding to enforce this Guaranty,
the Creditor shall provide the Guarantor with written demand ("Demand")
setting forth Debtors obligation and providing the Guarantor or the Debtor
three (3) business days in which to satisfy the obligation and thereby avoid
enforcement of the Guaranty. Any Demand by Creditor hereunder shall be in
writing, signed by a duly authorized officer of Creditor and delivered to
the Guarantor pursuant to Section 4 hereof, and shall (a) reference this
Guaranty, (b) specifically identify the Debtor, the Guaranteed Obligations
to be paid and the amount of such Guaranteed Obligations and (c) set forth
payment instructions. Guarantor shall pay, or cause to be paid, such
Guaranteed Obligations within three (3) business days of receipt of such
Demand.
These are no conditions precedent to the enforcement of this Guaranty,
except as set forth above. It shall not be necessary for Creditor, in order
to enforce payment by Guarantor under this Guaranty, to show any proof of
Debtor's default, to exhaust its remedies against Debtor, any other
guarantor, or any other person liable for the payment or performance of the
Guaranteed Obligations. Creditor shall not be required to mitigate damages
to take any other action to reduce, collect, or enforce the Guaranteed
Obligations.
5. SUBROGATION. Guarantor shall be subrogated to all rights of Creditor against
Debtor in respect of any amounts paid by Guarantor pursuant to the Guaranty,
provided that Guarantor waives any rights it may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all of the Guaranteed Obligations shall have been irrevocably paid to
Creditor in full. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all the Guaranteed Obligations
shall not have been paid in full, such amount shall be held
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in trust for the benefit of Creditor and shall forthwith be paid to Creditor
to be applied to the Guaranteed Obligations.
6. NOTICES. All demands, notices and other communications provided for
hereunder shall, unless otherwise specifically provided herein, (a) be in
writing addressed to the party receiving the notice at the address set forth
below or at such other address as may be designated by written notice, from
time to time, to the other party, and (b) be effective upon delivery, when
mailed by U.S. mail, registered or certified, return receipt requested,
postage prepaid, or personally delivered. Notice shall be sent to the
following addresses:
IF TO CREDITOR:
Atlas America, Inc.
Attention: Michael Brecko
311 Rouser Road
P.O. Box 611
Moon Township, PA 15108
IF TO GUARANTOR:
UGI Corporation
Attention: Robert Krick, Treasurer
P.O. Box 858
Valley Forge, PA 19482
7. NO WAIVER: REMEDIES. Except as to applicable statutes to limitation, no
failure on the part of Creditor 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. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
8. ASSIGNMENT: SUCCESSORS AND ASSIGNS. Creditor may, upon notice to Guarantor,
assign its rights hereunder without the consent of Guarantor. Guarantor may
assign its rights hereunder with the prior written consent of Creditor,
which consent shall not be unreasonably withheld. Subject to the foregoing,
this Guaranty shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, permitted assigns, and legal
representatives.
9. GOVERNING LAW: SUBMISSION TO JURISDICTION. THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA AND APPLICABLE FEDERAL LAW.
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10. ENTIRE AGREEMENT. This Guarantee sets forth the entire understanding and
agreement between the parties as to matters covered herein and expressly
supersedes all prior guarantees, agreements and understandings between the
parties with respect to the subject matter hereof. Any change, modification,
amendment, or alteration of this Guaranty shall be in writing and no course
of dealing between the Parties prior or subsequent to the date of this
Guaranty shall be construed to change, modify, amend, alter or waive the
terms hereof.
IN WITNESS WHEREOF, UGI Corporation has caused this Guaranty to be duly executed
and delivered by its duly authorized officer effective as of the Effective Date
first written above.
UGI CORPORATION
By: /s/ Robert W. Krick
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Name: Robert W. Krick
Title: Treasurer
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