Exhibit 10.2
CONTINUING GUARANTY
September 25th, 2003
Big Apple Energy, LLC.
00 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
I. To induce you, Big Apple Energy, LLC, a Nevada corporation ("Big Apple
Energy"), to enter into certain Natural Gas Sales Agreements of even date
herewith (the "Agreement") with U.S. Gas & Electric, a Delaware corporation
("Buyer"), pursuant to which Big Apple Energy has agreed to provide gas supply
to Buyer, as more fully described in the Agreement, the undersigned agrees to
be, without deduction by reason of set-off, defense or counterclaim,
unconditionally liable for, and hereby unconditionally guarantees to Big Apple
Energy, the due payment and performance of all of the liabilities and
obligations owed by Buyer to Big Apple Energy under the terms of the Agreement
(collectively, the "Guaranteed Obligations"). In addition, the undersigned
agrees to pay all costs of collection, including, without limitation, reasonable
attorney's fees, which may be incurred by Big Apple Energy in collecting any or
all of the Guaranteed Obligations and/or in enforcing any rights hereunder.
II. As implementing the foregoing, it is understood and agreed the
undersigned guarantees that the Guaranteed Obligations will be paid to Big Apple
Energy strictly in accordance with the terms and provisions of the Agreement
regardless of any law, regulation or decree, now or hereafter in effect which
might in any manner affect any of the terms or provisions of the Agreement or
Big Apple Energy's rights with respect thereto as against Buyer, or cause or
permit to be invoked any alteration in the time, amount or manner of payment by
Buyer of all or any part of the Guaranteed Obligations.
III. In event of the happening of any one or more of the following events,
any one of which shall constitute an event of default, to wit: (a) the
nonpayment of any of the Guaranteed Obligations; (b) the failure in business,
dissolution or termination of existence of the Buyer or the undersigned; (c) any
petition in bankruptcy is filed by or against the Buyer or the undersigned, or
any proceedings in bankruptcy, or under any laws or regulations of any
jurisdiction relating to the relief of debtors, being commenced for the relief
or readjustment of any indebtedness of the Buyer or the undersigned, either
through reorganization, composition, extension or otherwise; (d) the making by
the Buyer or the undersigned of an assignment for the benefit of creditors or
the taking advantage by either of the same of any insolvency law; (e) the
appointment of a receiver of any property of the Buyer or the undersigned; (f)
any seizure, vesting or intervention by or under authority of a government, by
which the management of either the Buyer or the undersigned is displaced or its
authority in the conduct of its business is curtailed; (g) the attachment or
distraint of any funds or other property of the Buyer or the undersigned; and
(h) without limiting any of the foregoing, the Buyer defaults in the performance
of any of the Buyer's obligations to Big Apple Energy under the Agreement, then,
or at any time(s) after the happening of any such event of default, any or all
of the Guaranteed Obligations shall, at Big Apple Energy's option, become, for
the purposes of this Guaranty, immediately due and payable by the undersigned
without demand or notice.
IV. Any and all present or future indebtedness of Buyer to the undersigned
together with any and all interest accrued or to accrue thereon (hereinafter
referred to as "Secondary Obligations") are subject and subordinate to the
payment of the Guaranteed Obligations. The undersigned shall not ask, demand,
xxx for, exercise any right of setoff or otherwise seek to enforce or collect,
or take or receive payment of or security for all or any part of the Secondary
Obligations until and unless all and every part of the Guaranteed Obligations
shall have been fully paid and discharged. In the event of any distribution,
dividend, or application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the assets of Buyer or of
the proceeds thereof to the creditors of Buyer or upon any indebtedness of
Buyer, occurring by reason of the liquidation, dissolution, or other winding up
of Buyer, or by reason of any execution sale, or bankruptcy, receivership,
reorganization, arrangement, insolvency, liquidation or foreclosure proceeding
of or for Buyer or involving Buyer's property, no dividend, distribution or
application shall be made, and the undersigned shall not be entitled to receive
or retain any dividend, distribution, or application on or in respect of
principal of or interest on the Secondary Obligations, unless and until all
principal of and interest on the Guaranteed Obligations then outstanding shall
have been indefeasibly paid and satisfied in full; and in any such event, any
dividend, distribution or application otherwise payable in respect of the
Secondary Obligations shall be paid over to Big Apple Energy and applied by Big
Apple Energy to the Guaranteed Obligations until the same have been fully paid
and satisfied. To enable Big Apple Energy to assert and enforce its rights
hereunder in any such proceeding or upon the happening of any such event, Big
Apple Energy, or any person whom it may designate, are hereby irrevocably
appointed attorney-in-fact for the undersigned with full power to act in the
place and stead of the undersigned, including the right to make, present, file
and vote such proofs of claim against Buyer on account of all or any part of the
Secondary Obligations as Big Apple Energy may deem advisable and to receive and
collect any and all dividends or other payments made thereon and to apply the
same on account of the Guaranteed Obligations. The undersigned will execute and
deliver to Big Apple Energy such instruments as may be required by it to enforce
any and all the Secondary Obligations, to effectuate such power of attorney and
to effect collection of any and all dividends or other payments which may be
made at any time on account thereof.
V. The undersigned agrees that the Guaranteed Obligations shall not be
affected by any action taken under the Agreement or any other documents,
instruments or agreements relating thereto, in the exercise of any right or
remedy therein conferred, or by any invalidity or unenforceability thereof, or
by any other circumstance whatsoever (including, without limitation, any
restriction or other limitation on, and/or release of, the liability of Buyer
for any of the Obligations), whether with or without notice to or knowledge of
the undersigned, which may in any manner vary the risk of the undersigned under
this Guaranty, it being the purpose and intent of the undersigned that this
Guaranty and the obligations of the undersigned hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment and performance by Buyer of the full amount of the Guaranteed
Obligations, interest accrued thereon and costs and expenses of Big Apple Energy
related thereto.
VI. The undersigned hereby consents and agrees that Big Apple Energy may at
any time, or from time to time, in its sole discretion: (1) extend or change the
time of payment, and/or the manner, place or terms of payment of all or any of
the Guaranteed Obligations; (2)
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exchange, release and/or surrender all or any of the collateral security, or any
part(s) thereof, held by Big Apple Energy in connection with all or any of the
Guaranteed Obligations or any of the other Obligations; (3) amend, modify and/or
waive the provisions of any of the Agreement; (4) after the occurrence of an
event of default, proceed against the undersigned before taking any action
against Buyer or any other person for payment of the Guaranteed Obligations
and/or to liquidate or preserve any collateral therefor; (5) sell and/or
purchase all or any such collateral at public or private sale, or at any
broker's board, and after deducting all costs and expenses of every kind for
collection, sale or delivery, the net proceeds of any such sale(s) may be
applied by Big Apple Energy upon all or any of the Guaranteed Obligations or any
of the other Obligations, in Big Apple Energy's sole discretion, and (6) settle
or compromise with Buyer, and/or any other person(s) liable on the Guaranteed
Obligations, any and all of the Guaranteed Obligations, and/or subordinate the
payment of same, or any part(s) thereof, to the payment of any other debts or
claims, which may at any time(s) be due or owing to Big Apple Energy and/or any
other person(s) or corporations(s); all in such manner and upon such terms as
Big Apple Energy may deem proper, and without notice to or further assent from
the undersigned, it being hereby agreed that the undersigned shall be and remain
bound upon this Guaranty, irrespective of the existence, value or condition of
any collateral. The undersigned shall not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of Big Apple Energy's rights under the Agreement or under any other agreement
affecting any of the Obligations, and to the fullest extent allowable by law,
the undersigned hereby irrevocably waives the benefits of all such laws.
VII. The undersigned hereby expressly acknowledges that any notices which
Big Apple Energy may give to the undersigned shall not in any way be deemed an
undertaking by Big Apple Energy or impose upon Big Apple Energy a duty to advise
the undersigned of any changes in the financial or business undertakings of
Buyer, or a change in the risk assumed by the undersigned.
VIII. The undersigned also hereby waives notice of acceptance of this
Guaranty, and also presentment, demand, protest and notice of dishonor of any
and all of the Guaranteed Obligations, and promptness in commencing suit against
any party thereto or liable thereon, and/or in giving any notice to or of making
any claim or demand hereunder upon the undersigned. No act or omission of any
kind on Big Apple Energy's part in the premises shall in any event affect or
impair this Guaranty, nor shall the same be affected by any change which may
arise by reason of the death of the undersigned. The undersigned further agrees
that this Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of the principal of or
interest on any of the Guaranteed Obligations or the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by Big Apple Energy upon
insolvency, bankruptcy or reorganization of Buyer, the undersigned or otherwise,
all as though such payment has not been made.
IX. No delay or omission by Big Apple Energy in the exercise of any right
or power hereunder or under the Agreement or any other document pertaining to
the Guaranteed Obligations shall impair such right or power or be construed to
be a waiver of any default or any acquiescence therein, and any single or
partial exercise of any such right or power shall not preclude other or further
exercise thereof or the exercise of any other right. All remedies herein or by
law afforded
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shall be cumulative and shall be available to Big Apple Energy until the
Guaranteed Obligations has been paid or satisfied in full.
X. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE UNDERSIGNED
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THE UNDERSIGNED MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF THIS GUARANTY OR THE AGREEMENT. THE UNDERSIGNED ACKNOWLEDGES THAT BIG
APPLE ENERGY IS RELYING ON THE FOREGOING WAIVER IN ENTERING INTO THE AGREEMENT.
XI. This is a continuing guaranty and shall (i) remain in full force and
effect until the Guaranteed Obligations has been paid and satisfied in full;
(ii) be binding upon the undersigned, the heirs, executors, legal
representatives and assigns of the undersigned, and shall inure to the benefit
of, and be enforceable by Big Apple Energy, its successors, transferees and
assigns, and (iii) BE DEEMED TO HAVE BEEN MADE UNDER AND SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK IN ALL RESPECTS, INCLUDING MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, and it is understood and agreed that
none of its terms or provisions may be waived, altered, modified or amended
except in writing duly signed for and on Big Apple Energy's behalf.
XII. The undersigned represents and warrants to Big Apple Energy that this
Guaranty is valid, legal and binding upon the undersigned and enforceable in
accordance with its terms. The undersigned acknowledges that he will materially,
directly or indirectly, receive financial benefit from the transactions related
to the Agreement.
XIII. If this Guaranty is executed by two or more parties, they shall be
jointly and severally liable hereunder, or if one or more other parties
guarantee to Big Apple Energy by separate document all or a portion of the
Guaranteed Obligations, they shall be jointly and severally liable with the
undersigned hereunder, and the word "undersigned" wherever used herein shall be
construed to refer to each of such parties separately, all in the same manner
and with the same effect as if each of them had signed this document, whether or
not they have signed separate documents; and in any such case this Guaranty
shall not be revoked or impaired as to any one or more of such parties by the
death of any of the others or by the revocation or release of any liabilities of
any one or more of such other parties.
/s/ Xxxx Xxxxxxxx (L.S.)
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WITNESS NAME: Xxxx Xxxxxxxx
TITLE: Chief Financial Officer
ADDRESS: U. S. Gas & Electric
000 XX 000xx Xxxxxx
Xxxxx, XX 00000
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