GUARANTY DATED JANUARY 1, 2005 BETWEEN UGI CORPORATION AND VIKING RESOURCES CORP.
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 : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention : ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IF TO GUARANTOR:
UGI Corporation
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Treasurer ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Treasurer ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 |
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| By: | /s/▇▇▇▇▇▇ ▇.▇▇▇▇▇
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| Name: | ▇▇▇▇▇▇ ▇.▇▇▇▇▇ | |||||
| Title: | Treasurer |
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