Exhibit
10.2
GUARANTY
AGREEMENT
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 “Pooler” shall deposit with the Company, as
security for the payment of all of the Pooler’s 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 Pooler Agreement, and the Pooler and
the undersigned Guarantor have requested that the Company accept
the guaranty of the undersigned Guarantor in satisfaction of the
Pooler’s 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 Pooler to the Company, including,
without limitation, the following (collectively, the “
Obligations ”): (a) all charges under the Tariff
applicable to the Pooler 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 Pooler pursuant to Section
3.22.1 of the Tariff, all amounts due to the Company for the
purchase by the Pooler of interstate storage inventory pursuant to
Section 13.8 of the Tariff, all amounts due to the Company for the
purchase by the Pooler of peaking inventory pursuant to Section
13.11 of the Tariff, and all amounts due to the Company for the
purchase by the Pooler 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 Pooler 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 Pooler
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 Pooler
pursuant to Section 13 of the Tariff; (e) all returned check
charges incurred by the Pooler pursuant to Section 3.9 of the
Tariff; and (f) all late payment charges incurred by the Pooler
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 Pooler to comply with any term
or condition of the Obligation Documents (as defined below)
including, without limitation, the obligations of the Pooler 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 Pooler of any
representation or warranty made by the Pooler to the Company
pursuant to the Obligation Documents (as defined below) including,
without limitation, the warranties of the Pooler pursuant to
Section 3.15 and Section 3.16 of the Tariff; and (iii) any failure
by the Pooler 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 Pooler
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 Pooler 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 Pooler 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 Pooler 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 Pooler 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 Pooler shall be deemed to have become
immediately due and payable if (a) the Pooler defaults under
Section 3.22 of the Tariff in any of its payment obligations to the
Company; (b) the Pooler defaults in any of its obligations to the
Company under the Tariff; (c) a petition is filed by the Pooler or
any general partner thereof under any Bankruptcy Laws, or a
petition is filed by the Pooler or any general partner thereof for
the appointment of a receiver of any part of the property of the
Pooler or any general partner thereof, or any such a petition is
filed against the Pooler or any general partner thereof and is not
dismissed within thirty (30) days; or (d) the Pooler 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 Pooler 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 Pooler, the Company, any endorser
or creditor of the Pooler 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 Pooler 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 Pooler and the
Company; (i) any change in the composition of the Pooler,
including, without limitation, the withdrawal or removal of
Guarantor from any current or future position of ownership,
management or control of the Pooler; (j) any duty on the part of
the Company to disclose to Guarantor any facts the Company may now
or hereafter know about the Pooler, 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 Guara
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