GUARANTY AGREEMENT
Exhibit
10.2
THIS
GUARANTY AGREEMENT (“Guaranty”)
by
(hereinafter referred to as “Guarantor”)
and
ATLANTA GAS LIGHT COMPANY (hereinafter referred to as the “Company”)
is
effective December 13, 2005.
WHEREAS,
the Company provides natural gas delivery services to customers pursuant to
the
terms and conditions of various Rate Schedules, Terms of Service and Rules
and
Regulations approved by the Georgia Public Service Commission from time to
time
(collectively, the “Tariff”);
WHEREAS,
Section 3.21 of the Tariff provides that, prior to making or causing deliveries
of gas into the Company’s system or making nominations or taking any other
action on behalf of a Retail Customer (as defined in the Tariff), each “Xxxxxx”
shall deposit with the Company, as security for the payment of all of the
Xxxxxx’x liabilities and obligations to the Company, a cash deposit, a letter of
credit issued by a financial institution acceptable to the Company, a surety
bond, or a guaranty issued by a corporation acceptable to the
Company;
WHEREAS,
the undersigned Guarantor derives substantial benefit from the Xxxxxx Agreement,
and the Xxxxxx and the undersigned Guarantor have requested that the Company
accept the guaranty of the undersigned Guarantor in satisfaction of the Xxxxxx’x
obligations under Section 3.21 of the Tariff;
WHEREAS,
this Guaranty expresses the terms and conditions of the aforementioned
guaranty;
NOW,
THEREFORE, for and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
the parties hereto, the undersigned Guaranty hereby agrees as
follows:
1. Guarantor
hereby irrevocably and unconditionally guarantees to the Company the due and
punctual payment upon demand, of all liabilities and obligations now or
hereafter arising or existing from time to time of the Xxxxxx to the Company,
including, without limitation, the following (collectively, the “Obligations”):
(a)
all charges under the Tariff applicable to the Xxxxxx pursuant to Section 3.20
of the Tariff, including, without limitation, all amounts due for fixed,
variable, volumetric, special, rider and other charges pursuant to monthly
bills
rendered by the Company to the Xxxxxx pursuant to Section 3.22.1 of the Tariff,
all amounts due to the Company for the purchase by the Xxxxxx of interstate
storage inventory pursuant to Section 13.8 of the Tariff, all amounts due to
the
Company for the purchase by the Xxxxxx of peaking inventory pursuant to Section
13.11 of the Tariff, and all amounts due to the Company for the purchase by
the
Xxxxxx of firm wellhead supplies pursuant to Section 13.14 of the Tariff; (b)
all costs or charges, in addition to those set forth in the Tariff, that are
passed by the Company to the Xxxxxx pursuant to Section 3.8 or Section 3.11
of
the Tariff; (c) all costs or charges due to the Company pursuant to any of
the
rate schedules contained in the Tariff; (d) all costs or charges due to the
Company pursuant to Sections 11, 13, 15, 17 and 20 of the Tariff, including
without limitation any failure by the Xxxxxx to pay any interstate pipeline
company for any of the Company’s Interstate Transportation and Storage Services
and Parking Capacity that are allocated to and assigned to the Xxxxxx pursuant
to Section 13 of the Tariff; (e) all returned check charges incurred by the
Xxxxxx pursuant to Section 3.9 of the Tariff; and (f) all late payment charges
incurred by the Xxxxxx pursuant to Section 3.10 of the Tariff. Guarantor further
hereby assumes liability for, hereby guarantees payment to the Company, hereby
agrees to pay, protect, and save the Company harmless from and against, and
hereby indemnifies the Company from and against, any and all liabilities,
obligations, losses, damages, costs and expenses (including, without limitation,
reasonable attorney’s fees), causes of action, suits, claims, demands and
judgments of any nature or description whatsoever (collectively, “Costs”),
which
may at any time be imposed upon, incurred by or awarded against the Company
as a
result of : (i) any failure by the Xxxxxx to comply with any term or condition
of the Obligation Documents (as defined below) including, without limitation,
the obligations of the Xxxxxx to indemnify the Company and to hold the Company
harmless under the circumstances set forth in Section 3.16, Section 3.17 and
Section 18.8 of the Tariff; (ii) any breach by the Xxxxxx of any representation
or warranty made by the Xxxxxx to the Company pursuant to the Obligation
Documents (as defined below) including, without limitation, the warranties
of
the Xxxxxx pursuant to Section 3.15 and Section 3.16 of the Tariff; and (iii)
any failure by the Xxxxxx to pay any interstate pipeline company for any of
the
Company’s Interstate Transportation and Storage Services and Parking Capacity
that are allocated to and assigned to the Xxxxxx pursuant to Section 13 of
the
Tariff. The foregoing sentence shall not be deemed to result in Guarantor being
liable for any payments that do not constitute Obligations.
This
is a
guaranty of payment and performance and not of collection. The liability of
Guarantor under this Guaranty shall no be absolute, direct and immediate and
not
conditional or contingent upon the pursuit of any remedies against the Xxxxxx
or
any other person (including, without limitation, other guarantors, if any),
nor
against any collateral for the Obligations or the Costs, nor upon any other
condition or contingency not set forth herein. Guarantor waives any right to
require that an action be brought against the Xxxxxx or any other person or
to
require that resort be had to any collateral for the Obligations or the Costs,
or to any balance of any credit on the books of the Company in favor of the
Xxxxxx or any other person. In the event, on account of the Bankruptcy Reform
Act of 1978, as amended, whatsoever, now or hereafter in effect, which may
be or
become applicable (collectively, “Bankruptcy
Laws”),
the
Xxxxxx shall be relieved of or fail to incur any debt, obligation or liability
as provided in the Obligation Documents (as defined below), Guarantor shall
nevertheless be fully liable therefore. In the event of a default under the
Obligation Document which is not cured within any applicable grace or cure
period, the Company shall have the right to enforce its rights, powers and
remedies thereunder or hereunder, in any order, and all rights, powers and
remedies available to the Company in such event shall be non-exclusive and
cumulative of all other rights, powers and remedies provided thereunder or
hereunder or by law or in equity.
Notwithstanding
anything in this Guaranty to the contrary, the aggregate amount for which
Guarantor may be liable shall not exceed $63,881,520 million.
2. For
purposes of this Guaranty, all sums owing to the Company by the Xxxxxx shall
be
deemed to have become immediately due and payable if (a) the Xxxxxx defaults
under Section 3.22 of the Tariff in any of its payment obligations to the
Company; (b) the Xxxxxx defaults in any of its obligations to the Company under
the Tariff; (c) a petition is filed by the Xxxxxx or any general partner thereof
under any Bankruptcy Laws, or a petition is filed by the Xxxxxx or any general
partner thereof for the appointment of a receiver of any part of the property
of
the Xxxxxx or any general partner thereof, or any such a petition is filed
against the Xxxxxx or any general partner thereof and is not dismissed within
thirty (30) days; or (d) the Xxxxxx or any general partner thereof makes a
general assignment for the benefit of creditors, suspends business, or commits
any act amounting to a business failure.
3. To
the
extent permitted by law, Guarantor hereby waives and agrees not to assert or
take advantage of any defense, counterclaim, right or remedy now or hereafter
accorded by applicable law to indemnitors, guarantors or sureties, including,
without limitation, those arising out of or related in any way to the following,
irrespective of any lack of notice to or consent by Guarantor: (a) any right
to
require the Company to proceed against the Xxxxxx or any other person or to
proceed against or exhaust any security held by the Company at any time, or
to
pursue any other remedy in the Company’s power or under any other agreement
before proceeding against Guarantor hereunder; (b) any defense that may arise
by
reason of the incapacity, lack of authority, death or disability of any other
person or entity, or the failure of the Company to file or enforce a claim
against the estate (in administration, bankruptcy or any other proceeding)
of
any other person or entity; (c) demand, presentment for payment, notice of
nonpayment or dishonor, protest, notice of protest, or diligence in collection;
(d) notice of acceptance of this Guaranty by the Company, notice of default,
and
all other notices of any kind, or the lack of any additional Obligations or
Costs, or of any action or non-action on the part of the Xxxxxx, the Company,
any endorser or creditor of the Xxxxxx of Guarantor, or on the part of any
other
person whomsoever under this Guaranty or any Obligation Documents (as defined
below), and any and all other formalities which otherwise might be legally
required to charge Guarantor with liability; (e) any defense based upon an
election of remedies by the Company; (f) any right or claim of right to cause
a
marshaling of the assets of the Xxxxxx or Guarantor; (g) any principle or
provision of law, statutory or otherwise, which is or might be in conflict
with
the terms and provisions of this Guaranty; (h) interruptions in the business
relations between the Xxxxxx and the Company; (i) any change in the composition
of the Xxxxxx, including, without limitation, the withdrawal or removal of
Guarantor from any current or future position of ownership, management or
control of the Xxxxxx; (j) any duty on the part of the Company to disclose
to
Guarantor any facts the Company may now or hereafter know about the Xxxxxx,
regardless of whether the Company has reason to believe that any such facts
materially increase the risk beyond that which Guarantor intends to assume,
or
has reason to believe that such facts are unknown to Guarantor, it being
understood and agreed that Guarantor is fully responsible for being and keeping
informed of the financial condition of the Xxxxxx, and of any and all
circumstances bearing on the risk that liability may be incurred by Guarantor
hereunder; (k) any release or substitution in whole or in part of any security
for the Obligations or the Costs, or any lack of notice of disposition or of
manner of disposition of any collateral for the Obligations or the Costs, or
any
deficiencies in any collateral for the Obligations or the costs, or any
deficiency in the ability of the Company to collect or to obtain performance
from any persons or entities now or hereafter liable for the payment or
performance of any Obligations or costs; (l) any amendments, extensions,
modifications, renewals or waivers of default as to the Xxxxxx Agreement, the
tariff or any other existing or future agreement or obligation of the Xxxxxx
with or to the Company (collectively the “Obligation
Documents”),
or
any release of the Xxxxxx or of any other person or entity from performance
or
observance of any of the agreements, covenants, terms or conditions contained
in
any of the Obligation Documents, whether by operation of law, voluntary action
of the Company, or by action of any court, whether pursuant to any Bankruptcy
Laws, or any other law of any jurisdiction whatsoever, now or hereafter in
effect or otherwise; (m) any invalidity, irregularity or unenforceability,
in
whole or in par, of any one or more of the Obligation Documents; (n) any other
guaranty now or hereafter executed by any other person in connection with the
Obligations or the Costs, or any rights, powers or privileges the Company may
now or hereafter have against any other person, entity or collateral; (o) any
assignment for the benefit of creditors by the Xxxxxx of any general partner
thereof; (p) any appointment of a receiver, liquidator or trustee for the Xxxxxx
or any general partner thereof, or for any of the properties of the Xxxxxx
or
any such general partner; (q) any filing of a petition by or against the Xxxxxx
or any general partner thereof for relief pursuant any Bankruptcy Laws; (r)
the
institution of any proceedings for the dissolution or liquidation of the Xxxxxx
or any general partner thereof; (s) any relief or discharge granted the Xxxxxx
or any general partner thereof under any Bankruptcy Laws; (t) any assertion
or
claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the
voluntary or involuntary bankruptcy proceeding of the Xxxxxx or any general
partner thereof) or any other stay provided under any other Bankruptcy Laws,
shall operate or be interpreted to stay, interdict, condition, reduce or inhibit
the ability of the Company to enforce any of its rights, whether now or
hereafter required, which the Company may have against Guarantor or the
collateral for the Obligations or the Costs; (u) any defense, right of offset
or
other claim which Guarantor may have against the Xxxxxx, or which the Xxxxxx
may
have against the Company, or which the Guarantor may have against the Company
in
connection with any action by the Company to recover amounts due under this
Guaranty; (v) all rights of redemption, homestead, dower, and other rights
or
exemptions of every kind, whether under common law or by statue; (w) any
avoidance action; or (x) the taking or failure to take any other action of
any
type whatsoever.
4. Notwithstanding
the satisfaction by Guarantor of any Obligation or Cost hereunder, Guarantor
shall not have any right of subrogation, contribution, reimbursement or
indemnity whatsoever against Xxxxxx for the Obligations or Costs. In connection
with the foregoing, Guarantor expressly waives any and all rights of subrogation
to the Company against the Xxxxxx, and Guarantor hereby waives any rights to
enforce any remedy which the Company may have against the Xxxxxx and any right
to participate as a subrogee or otherwise in any collateral pledged to the
Company for the Obligations or the Costs. In addition to and without in any
way
limiting the foregoing, Guarantor hereby subordinates any and all indebtedness
of the Xxxxxx now or hereafter owed to Guarantor to all unpaid Obligations
of
the Xxxxxx to the Company, and agrees with the Company that Guarantor shall
not
claim any offset or other reduction of Guarantor’s obligations hereunder because
of any such indebtedness and shall not take any action to obtain any of the
collateral pledged to the Company for the Obligations or the Costs. Further,
Guarantor shall not have any right of recourse against the Company by reason
of
any action the Company may take or omit to take under the provisions of any
of
the Obligation Documents. Notwithstanding the foregoing, this Paragraph 4 shall
not prevent the Xxxxxx from issuing dividends to Guarantor which are otherwise
proper and permitted under all applicable law.
5. This
Guaranty shall be deemed to be continuing in nature and shall remain in full
force and effect and shall survive (a) the exercise of any remedy by the Company
under the Obligation documents, even if, as a part of such remedy, the
Obligations or the Costs are paid or satisfied in full; (b) any termination
or
suspension of the Xxxxxx’x entitlement to act as a “Xxxxxx” on the Company’s
system, pursuant to Section 3.21.4 of the Tariff or otherwise; and (c) any
dispute by the Xxxxxx of the amount of any xxxx from the Company, pursuant
to
Section 3.22.3 of the Tariff, or otherwise. Notwithstanding the foregoing,
Guarantor may terminate this guaranty at any time upon 150 days’ prior written
notice to the Company; provided,
however,
that
Guarantor guarantee of all Obligations arising prior to the date of such
termination shall survive such termination and remain in full force and effect
unless and until Xxxxxx provides, in form an substance satisfactory to Company,
security in lieu of this Guaranty for any and all pre-termination Obligations
and provided further, that such termination shall in now way affect the
requirement that Xxxxxx deposit adequate security with the Company in accordance
with Section 3.21 of the Tariff. If the Obligations and Costs are partially
paid
or discharged by reason of the exercise of any of the remedies available to
the
Company, this Guaranty shall nevertheless remain in full force and effect,
and
Guarantor shall remain liable for all remaining Obligations and Costs, even
though any rights which Guarantor may have against the Xxxxxx may be destroyed
or diminished by the exercise of any such remedy. A separate right of action
hereunder shall arise each time the Company acquires knowledge of any matter
guaranteed by Guarantor under this Guaranty. Separate and successive actions
may
be brought hereunder to enforce any of the provisions hereof at any time and
from time to time. No action hereunder shall preclude any subsequent action,
and
Guarantor hereby waives and covenants not to assert any defense in the nature
of
splitting of causes of action or merger of judgments. If at any time all or
any
part of any payment made by Guarantor or received by the Company from guarantor
under or with respect to this Guaranty is or must be rescinded or returned
for
any reason whatsoever (including, but not limited to, the insolvency, bankruptcy
or reorganization of Guarantor or the Xxxxxx or any general partner thereof),
then the obligations of Guarantor hereunder shall, to the extent of the payment
rescinded or returned, be deemed to have continued in existence, notwithstanding
such previous payment made by Guarantor, or receipt of payment by the Company,
and the obligations of Guarantor hereunder shall continue to be effective or
be
reinstated, as the case may be, as to such payment, all as though such previous
payment by Guarantor had never been made.
6. In
the
event this Guaranty is collected by or through an attorney at law, the
undersigned Guarantor shall reimburse the Company for all costs of collection,
including reasonable attorneys’ fees and expenses. Any amounts received by the
Company hereunder may be applied to the Obligations or the Costs in such order
and manner as the Company may deem appropriate.
7. All
notices, demands, requests or other communications to be sent by one party
to
the other hereunder or required by law shall be in writing and shall be deemed
to have been validly given or served by delivery of the same in person to the
intended addressee, or by depositing the same with Federal Express or another
reputable private courier service for next business day delivery to the intended
addressee at its address set forth on the signature page of this Guaranty or
at
such other address as may be designated by such party as herein provided, or
by
depositing the same amount in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, addressed to the
intended addressee at its address set forth on the signature page of this
Guaranty or at such other address as may be designated by such party as herein
provided. All notices, demands and requests shall be effective upon such
personal delivery, or one (1) business day after being deposited with the
private courier service, or two (2) business days after being deposited in
the
United States mail as required above. Rejection or other refusal to accept
or
the inability to deliver because of changed address of which no notice was
given
as herein required shall be deemed to be receipt of the notice, demand or
request sent. By giving to the other party hereto at least (15) days’ prior
written notice thereof in accordance with the provisions hereof, the parties
hereto shall have the right from time to time to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
8. This
Guaranty may not be assigned by Guarantor without the Company’s prior written
consent, which consent may be withheld by the Company in its sole discretion.
This Guaranty shall inure to the benefit of any may be enforced by the Company
and its successors and assigns, and shall be binding upon and enforceable
against the undersigned Guarantor its successors, and assigns.
9. This
Guaranty shall be interpreted, construed and governed by an in accordance with
the laws of the State of Georgia. The invalidity of any portion, provision
or
paragraph of this Guaranty shall not affect or render invalid any other portion,
provision or paragraph of this Guaranty. This Guaranty constitutes the entire
agreement between the undersigned Guarantor and the Company with respect to
the
subject matter hereof and supersedes all prior agreements, whether written
or
oral, between the parties respecting such matters. No modification of this
Guaranty, and no waiver of any right or remedy hereunder, shall be binding
on
the Company or the Guarantor unless it is in writing and signed by the Company
and the Guarantor. No delay or failure by the Company to exercise any right
or
remedy shall operate as a waiver thereof, and no single or partial exercise
by
the company of any right or remedy shall preclude other or future exercise
thereof or the exercise of any other right or remedy. This Guaranty is subject
to enforcement at law or in equity, including actions for damages or specific
performance. Time is of the essence hereof.
10. So
long
as this Guaranty remains in effect, Guarantor will do all things necessary
to
preserve its existence and corporate, limited liability company and partnership
formalities (as applicable). Guarantor represents, warrants and covenants that:
(i) Guarantor is duly organized, validly existing and in good standing under
the
laws of the jurisdiction of its formation and has full power and authority
to
execute, deliver and perform this Guaranty; (ii) the execution, delivery and
performance of this Guaranty have been and remain duly authorized by all
necessary legal action and do not contravene the Guarantor’s organizational
documents or any contractual restriction binding on Guarantor or its assets;
(iii) Guarantor will execute and deliver to the Company appropriate documents,
opinions and certificates evidencing Guarantor’s authority to execute and
deliver the Guaranty; and (iv) the Guaranty constitutes the legal, valid and
binding obligation of Guarantor enforceable against Guarantor in accordance
with
its terms.
11. Guarantor
hereby agrees to furnish to the Company promptly upon demand by the Company
current and dated financial statements detailing the assets and liabilities
of
Guarantor certified by Guarantor, in form and substance acceptable to the
Company. Guarantor hereby warrants and represents to the Company that any and
all balance sheets, net worth statements and other financial date which have
heretofore been given or may hereafter be given to the Company with respect
to
Guarantor did or will a the time of delivery fairly and accurately present
the
financial condition of Guarantor. Guarantor acknowledges that the Company has
the right to require different or additional security from the Xxxxxx pursuant
to Section 3.21 of the Tariff.
12. To
the
extent the Tariff is amended to change any of the existing section numbers
of
the Tariff identified in this Guaranty, Guarantor acknowledges and agrees that
this Guaranty shall be automatically amended so that any of the section numbers
identified in this Guaranty shall be consistent with the section numbers set
forth in the Tariff as amended.
13. SUBMISSION
TO JURISDICITON; WAIVER OF JURY TRIAL.
a. GUARANTOR,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO
PERSONAL JURISDICTION IN THE STATE OF GEORGIA OVER ANY SUIT, ACTION OR
PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS GUARANTY, (ii) AGREES
THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION SITTING IN XXXXXX COUNTY, GEORGIA, (iii) SUBMITS
TO THE JURISDICTION OF SUCH COURTS, AND (iv) AGREES THAT IT WILL NOT BRING
ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE COMPANY TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER
FORUM). GUARANTOR, TO THE FULL EXTENT PERMITTED BY LAW, FURTHER CONSENTS AND
AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE
PREPAID, TO GURANTOR AT THE ADDRESS FOR NOTICES SET FORTH ON THE LAST PAGE
HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUE IN EVERY
RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDTY
OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
b. GUARANTOR,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVES, RELINGUISHES
AND FOREVER FORGOES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THIS GUARANTY OR ANY
CONDUCT, ACTO OR OMISSION OF THE COMPANY OR THE XXXXXX, OR ANY OF THEIR
DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR
ANY
OTHER PERSONS AFFILIATED WITH THE COMPANY, THE XXXXXX OR GUARANTOR, IN EACH
OF
THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty to be executed
by
their duly authorized officer or representative.
GUARANTOR:
AGL
RESOURCES, INC., a Georgia Corporation
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
SVP & CFO
Address
of the Company:
Atlanta
Gas Light Company
Xxx
Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
ATTN:
Cash Manager
Address
of the Guarantor:
Xxx
Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
ATTN:
VP
& Treasurer
