EXHIBIT 10.8
GUARANTY DATED JUNE 1, 2004 BETWEEN UGI
CORPORATION AND VIKING RESOURCES CORP.
BOX 858 VALLEY FORGE, PA 19482 o 610-337-1000
GRAPHIC
UGI
CORPORATION
June 8, 2004
VIA REGULAR MAIL
Atlas America, Inc.
Attention: Michael Brecko
311 Rouser Road
P.O. Box 611
Moon Township, PA 15108
RE. GUARANTY FOR UGI ENERGY SERVICES, INC.
Dear Mr. Brecko:
Enclosed is the executed original Guaranty made by UGI Corporation in favor
of Viking Resources, Corp., effective as of March 1, 2004. This Guaranty is
intended as credit assurance for the transactions of UGI Energy Services Inc.,
and is given in the amount of $7,000,000. This Guaranty supercedes the prior
Guaranty between the parties, which was dated effective March 1, 2004.
If you have any questions concerning the foregoing, please contact me at
(610) 337-1000, extension 3148.
Very truly yours,
graphic
Frank H. Markle
Counsel
Attachment
Cc: Andrew Koehler
graphic
RECEIVED JUN 10 2004
460 NORTH GULPH ROAD, KING OF PRUSSIA, PA 19406
GUARANTY
This Guaranty (the "Guaranty") is made by UGI Corporation ("Guarantor"), a
Pennsylvania corporation, effective as of June 1, 2004 (the "Effective Date"),
in favor of Viking Resources Corp. ("Creditor"), a Pennsylvania corporation.
WHEREAS, UGl 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 terns 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 of 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 April 30,
2006. 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 restated, 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, a 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.
There are no other 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
or 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 effective upon delivery, when mailed by U.S. mail, registered or
certified, return receipt requested, postage prepaid, or personally
delivered Notices 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 of 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 thereof
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: [Signature omitted]
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Name: Robert W.Krick
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Title: Treasurer
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