Exhibit 10(k)(k)(k)
SUNTRUST
UNCONDITIONAL UNLIMITED GUARANTY
This guaranty dated November 15, 2002, of RGC Resources, Inc. (the "Guarantor")
provides:
WHEREAS, Roanoke Gas Company (whether one or more and any combination thereof,
the "Borrower"), desires to transact business with or obtain credit or a
continuation of credit from SunTrust Bank, its present and future affiliates and
their successors and assigns (collectively the "Bank"); and
WHEREAS, the Bank is unwilling to extend or continue credit to the Borrower
unless it receives a guaranty from the Guarantor with respect to the
Obligations, as defined below, of the Borrower to the Bank;
NOW, THEREFORE, in consideration of the premises and of other good and valuable
consideration and in order to induce the Bank from time to time, in its sole
discretion, to extend or continue credit to, or enter into other transactions
with, the Borrower, the Guarantor, absolutely and unconditionally, guarantees to
the Bank performance and payment when due, whether by acceleration or otherwise,
of any and all Obligations of the Borrower to the Bank, together with all
interest and charges and expenses thereon, including but not limited to, all
attorneys' fees, court costs, costs and expenses of collection, costs of
preserving, protecting or disposing of any collateral securing the Obligations
or other costs incurred by the Bank in enforcing any of such Obligations,
subject to the provisions contained in this guaranty.
1. The term "Obligations" or "Obligation" as used herein shall include,
without limitation, all indebtedness, obligations and liabilities of the
Borrower to the Bank now existing or hereafter created or arising, whether
direct, indirect, absolute, contingent, joint or several, secured or
unsecured, liquidated or unliquidated, and howsoever owned, held or
acquired by the Bank, whether by assignment, discount, direct loan,
overdraft, purchase or otherwise, and howsoever evidenced, whether by
promissory note, agreement, letter of credit application, interest rate
hedge agreement or other derivative transaction agreement, xxxx of
exchange, acceptance, check, overdraft, book entry or otherwise, and all
substitutions, renewals, extensions and modifications of the above.
The amount of the Guarantor's liability hereunder shall be unlimited.
2. This guaranty is a continuing guaranty, shall remain in full force and
effect irrespective of any interruptions in the business relations of the
Borrower with the Bank and shall apply to and guarantee any balance which
shall remain due by the Borrower to the Bank; provided, however, that the
Guarantor may, by notice in writing delivered personally to an officer of
the Bank or received by registered mail by an officer of the Bank,
terminate this guaranty with respect to all Obligations of the Borrower
incurred or contracted by the Borrower or acquired by the Bank after the
date on which the notice is actually received by such officer. Such
termination shall not be applicable to any Obligation incurred prior to the
receipt of the notice by the Bank.
3. The Bank may at any time and from time to time, in the exercise of its sole
discretion, either before or after default by the Borrower or revocation or
termination of this guaranty, without the consent of or notice to the
Guarantor, without incurring responsibility to the Guarantor, without
releasing or impairing the liability of the Guarantor or any collateral or
security available to the Bank, upon or without any terms or conditions and
in whole or in part:
(a) Change the manner, place, or terms of payment (including
payment amounts and rate of interest) and/or change or extend
the time of payment, renew or alter any Obligation, any
collateral or security for any Obligation, or any Obligation
incurred directly or indirectly in respect thereof, and this
guaranty shall apply to the Obligations as so changed,
extended, renewed or altered;
(b) Sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any collateral or
security at any time held by or available to the Bank for any
Obligation, or for any obligations of the Guarantor or any
person secondarily or otherwise liable for any of the
Obligations;
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(c) Exercise or refrain from exercising any rights against the
Borrower, the Guarantor, any other guarantors or other
parties, or otherwise act or refrain from acting;
(d) Settle, compromise and/or release any Obligation and any
collateral or security therefore, or the obligations of
Guarantor or any other guarantors, and subordinate the payment
of all or any part of any Obligation to the payment of any
obligations or indebtedness, whether due or not, of the
Borrower to creditors of the Borrower other than the Bank and
the Guarantor;
(e) Apply any sums received by it from any source to any
Obligation or Obligations, in such order as the Bank may
elect, regardless of what Obligation or Obligations remain
unpaid. All payments shall be conclusively presumed to have
been made by the Borrower and no payment shall operate to
reduce the liability of the Guarantor unless, at the time such
payments are made, written notice is delivered to an officer
of the Bank that such payments are made by the Guarantor in
reduction of his liability and such payments are actually made
by the Guarantor;
(f) Fail to set off and release, in whole or in part, any balance
of any deposit account or credit on its books in favor of the
Borrower, or any guarantors or of any other person liable for
any of the Obligations, and may extend further credit in any
manner to the Borrower, and generally deal with the Borrower
or any security or other person liable for any of the
Obligations as the Bank, in its sole discretion, may see fit.
4. The Guarantor waives notice of acceptance of the guaranty and notice,
including notice of default, of any Obligation to which it may apply, and
waives presentment and demand for payment of any of the Obligations, and
waives protest and notice of dishonor or nonpayment of any Obligation, suit
or taking other action by the Bank against, and any other notice to, the
Guarantor or to any other party liable for such Obligations. Except for any
limitation which is specified above with respect to the amount of the
maximum liability of the Guarantor, this is an unconditional guaranty, and
the liability of the Guarantor to the Bank shall not be terminated or in
any way limited by reason of, or as the result of, anything set forth or
contained in any writing evidencing all or any part of the Obligations nor
shall it be limited to a proportionate part of the total of the
Obligations. This is a guaranty of payment and not of collection and the
Guarantor waives any right to require that any action be brought against
the Borrower or any other party or person or to require that resort be had
to any collateral or security or to any balance of any deposit account or
credit on the books of the Bank in favor of the Borrower or any other
guarantor or other person and agrees that the Bank is not responsible for
the validity, perfection, recordation or enforceability of any collateral
or security for the Obligations.
5. The Guarantor subordinates all indebtedness of the Borrower owing to it,
whether existing now or arising in the future, to the Obligations. The
Guarantor further agrees that the Guarantor shall not be subrogated to, and
will not enforce any right of action which the Bank may have against the
Borrower until every Obligation is paid in full. The Bank shall have the
right, immediately and without further action by it, to set off against any
Obligations of the Guarantor to the Bank, all money owed by the Bank in any
capacity to the Guarantor, whether or not due. Notwithstanding any other
provision of this guaranty, any Guarantor who is an "insider" within the
meaning of the Bankruptcy Code, hereby irrevocably waives any right to
assert, enforce, or otherwise exercise any right of subrogation to any of
the rights, security interests, claims or liens of the Bank, its successors
or assignees or any other beneficiary against the Borrower or any other
obligor on the Obligations or any amounts guaranteed or on any collateral
or security, and such Guarantor shall have no right of recourse,
reimbursement, contribution, indemnification, or similar right it may have
(by contract or otherwise) against the Borrower or any other obligor on all
or any part of the Obligations or any guarantor thereof, and such Guarantor
hereby irrevocably waives any and all of the foregoing rights and also
irrevocably waives the benefit of, and any right to participate in, any
collateral or security given to the Bank or any other beneficiary to secure
payment of the Obligations.
6. A subsequent guaranty by the Guarantor or any other guarantor of the
Obligations shall not be deemed to be in lieu of or to supersede or
terminate this guaranty but shall be construed as an additional or
supplementary guaranty unless otherwise expressly provided; and in the
event the Guarantor or any other guarantor has given to the Bank a previous
guaranty or guaranties, this guaranty shall be construed to be
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an additional or supplemental guaranty, and not to be in lieu thereof or to
terminate such previous guaranty or guaranties unless expressly provided in
this guaranty.
7. This guaranty shall be binding on the Guarantor notwithstanding the failure
of any further contemplated guarantor or other party to execute this or
similar instruments and notwithstanding the fact that the signature of one
or more of any other guarantor or any other existing or future signature
shall be forged or unauthorized. The revocation of any guaranty, in the
manner permitted, by any other guarantor or other party, or the release by
the Bank of any guarantor or other party, or the death of any other
guarantor or other party shall not affect or limit the liability of the
Guarantor, and the Bank shall be under no duty to notify the Guarantor of
any revocation, release or death.
8. The Guarantor warrants to the Bank that it has adequate means to obtain
from the Borrower on a continuing basis information concerning the
financial condition of the Borrower and it is not relying on the Bank to
provide such information either now or in the future. The Guarantor waives
all errors and omissions in connection with the Bank's administration of
the Obligation, except behavior which amounts to bad faith.
9. No invalidity, irregularity or unenforceability of all or any part of the
Obligations or of any collateral or security shall affect, impair, or be a
defense to this guaranty, and this guaranty is a primary obligation of the
Guarantor.
10. If the Guarantor is a partnership, the agreements and Obligations on the
part of the Guarantor shall remain in full force and applicable
notwithstanding any changes in the identity of the parties composing the
partnership and the term "Guarantor" shall include any altered or
successive partnership and the predecessor partnership and their partners
shall not thereby be released from any Obligations or Obligation.
11. No delay or failure on the part of the Bank in exercising any rights shall
operate as a waiver of its rights; no notice to or demand on the Guarantor
shall be deemed to be a waiver of the Obligations of the Guarantor or of
the right of the Bank to take further action without notice or demand as
provided herein; nor shall any modification or waiver of the provisions of
this guaranty be effective unless in writing and signed by the Bank nor
shall any such waiver be applicable except in the specific instance for
which given.
12. The Guarantor agrees to provide to the Bank updated financial information,
including, but not limited to, tax returns, current financial statements in
form satisfactory to the Bank, as well as additional information, reports,
or schedules (financial or otherwise), all as the Bank may from time to
time request.
13. Notwithstanding the fact that the Obligations of the Borrower to the Bank
may have been paid in full and this guaranty form may have been returned to
the Guarantor, the Obligations of the Guarantor shall continue in full
force and effect with respect to any amounts that the Bank may ever be
required to repay under any Bankruptcy or insolvency laws.
14. This guaranty shall not be construed to impose any obligation on the Bank
to extend or continue any credit at any time.
15. Each reference in this guaranty to the Bank shall include its successors
and assigns, in whose favor the provisions of this guaranty shall also
inure. Each reference to the Guarantor shall include heirs, executors,
administrators, legal representatives, successors and assigns of the
Guarantor, all of whom shall be bound by the provisions of this guaranty.
16. This guaranty shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia.
(If the Guarantor is a corporation, the corporate name must be signed by a duly
authorized officer and the corporate seal affixed.)
RGC Resources, Inc.
By: /s/ Xxxx X. Xxxxx (Seal)
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Xxxx X. Xxxxx VP & Secretary
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Name and title printed or typed
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