Contract
GUARANTEE,
dated as of September 30, 2008, made by AGL RESOURCES INC., a Georgia
corporation (the “Guarantor”), in favor
of WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (in such
capacity, the “Administrative
Agent”) for the lenders (the “Lenders”) parties to
the Credit Agreement, dated as of September 30, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
among Guarantor, AGL CAPITAL CORPORATION (the “Borrower”), the
Lenders, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative
Agent.
W I T N E S S E T
H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have severally agreed to make
Loans to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS,
it is a condition precedent to the obligation of the Lenders to make their
respective Loans to the Borrower under the Credit Agreement, to the obligation
of the Issuing Lender to issue Letters of Credit for the account of the Borrower
thereunder, and to the obligation of the Lenders to participate in the Letters
of Credit, that the Guarantor shall have executed and delivered this Guarantee
to the Administrative Agent for the ratable benefit of the Lenders;
and
WHEREAS,
the Guarantor is the parent of the Borrower, and it is to the advantage of
Guarantor that the Lenders make the Loans to the Borrower, the Issuing Lender
issue the Letters of Credit for the account of the Borrower, and the Lenders
participate in the Letters of Credit;
NOW,
THEREFORE, in consideration of the premises and to induce the Administrative
Agent and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective Loans to the Borrower under the Credit
Agreement, the Issuing Lender to issue Letters of Credit for the account of the
Borrower thereunder, and the Lenders to participate in the Letters of Credit
thereunder, the Guarantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
1. Defined
Terms.
(a) Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
(b) The
following terms shall have the meanings set forth below:
“Lender”: Each
Person that at any time, and from time to time, is a party to the Credit
Agreement as a Lender, and any such Lender or Affiliate of such Lender that is a
party to a Specified Hedge Agreement.
“Obligations”: the
collective reference to the unpaid principal of and interest on (including
interest accruing at the then applicable rate provided in the Credit Agreement
after the maturity of the Loans and Reimbursement Obligations and after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations, and all other obligations and
liabilities of the Borrower to the Administrative Agent, the Issuing Lender, or
any Lender (or, in the case of Specified Hedge Agreements, any affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred pursuant to the Credit Agreement, any
other Loan Document, the Letters of Credit, any Specified Hedge Agreement or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including all fees, charges and
disbursements of counsel to the Administrative Agent, the Issuing Lender, or to
any Lender that are required to be paid by the Borrower pursuant to any Loan
Document).
(c) The words
“hereof,” “herein” and “hereunder” and words of similar import when used in this
Guarantee shall refer to this Guarantee as a whole and not to any particular
provision of this Guarantee, and section and paragraph references are to this
Guarantee unless otherwise specified.
(d) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
2. Guarantee.
(a) The
Guarantor hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) The
Guarantor further agrees to pay any and all reasonable expenses (including,
without limitation, all reasonable fees and disbursements of counsel actually
incurred) which may be paid or incurred by the Administrative Agent or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantor under this
Guarantee. This Guarantee shall remain in full force and effect until
the Obligations are paid in full, no Letter of Credit shall be outstanding and
the Revolving Commitments are terminated (collectively, the “Termination
Requirements”), notwithstanding that from time to time prior thereto the
Borrower may be free from any Obligations.
(c) No
payment or payments made by the Borrower or any other Person or received or
collected by the Administrative Agent or any Lender from the Borrower or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which shall,
notwithstanding any such payment or payments (other than payments made by the
Guarantor in respect of the Obligations or payments received or collected from
the Guarantor in respect of the Obligations), remain liable for the Obligations
until the satisfaction of the Termination Requirements.
(d) The
Guarantor agrees that whenever, at any time, or from time to time, it shall make
any payment to the Administrative Agent or any Lender on account of its
liability hereunder, it will notify the Administrative Agent and such Lender in
writing that such payment is made under this Guarantee for such
purpose.
3. Right of
Set-off. Upon the occurrence of any Event of Default, the
Administrative Agent and each Lender is hereby irrevocably authorized at any
time and from time to time (unless the Administrative Agent or such Lender, as
applicable, has agreed to the contrary) without notice to the Guarantor, any
such notice being expressly waived by the Guarantor, to set off and appropriate
and apply any and all deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by the Administrative Agent or
such Lender to or for the credit or the account of the Guarantor, or any part
thereof in such amounts as the Administrative Agent or such Lender may elect,
against or on account of the Obligations and liabilities of the Guarantor to the
Administrative Agent or such Lender hereunder and claims of every nature and
description of the Administrative Agent or such Lender against the Guarantor, in
any currency, whether arising hereunder, under the Credit Agreement, any other
Loan Document or otherwise, as the Administrative Agent or such Lender may
elect, whether or not the Administrative Agent or such Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender
shall notify the Guarantor promptly as of any such set-off and the application
made by the Administrative Agent or such Lender, as the case may be, of the
proceeds thereof; provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent and each Lender
under this paragraph are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.
4. No
Subrogation. Notwithstanding any payment or payments made by
the Guarantor hereunder, or any set-off or application of funds of the Guarantor
by the Administrative Agent or any Lender, the Guarantor shall not be entitled
to be subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or against any collateral security or guarantee or right of
offset held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower in respect of payments made by
the Guarantor hereunder, until the Termination Requirements have been
satisfied. If any amount shall be paid to the Guarantor on account of
such subrogation rights at any time when all of the Termination Requirements
have not been satisfied, such amount shall be held by the Guarantor in trust for
the Administrative Agent and the Lenders, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
5. Amendments, etc. with
respect to the Obligations; Waiver of Rights. The Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantor, and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender, and any of the Obligations continued, and the Obligations, or
the liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement, any other Loan Document and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the Required Lenders, as the case may be) may deem advisable from time
to time, and any guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrower or any other guarantor, and any failure by
the Administrative Agent or any Lender to make any such demand or to collect any
payments from the Borrower or any such other guarantor or any release of the
Borrower or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Lender against the Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance of any legal
proceedings.
6. Guarantee Absolute and
Unconditional. The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of
or proof of reliance by the Administrative Agent or any Lender upon this
Guarantee or acceptance of this Guarantee; the Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Borrower or the Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. The Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Borrower
or the Guarantor with respect to the Obligations. This Guarantee
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity, regularity or enforceability of
the Credit Agreement or any other Loan Document, any of the Obligations or any
other collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrower against the Administrative Agent or any Lender, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or the Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Obligations, or of the
Guarantor under this Guarantee, in bankruptcy or in any other
instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Borrower or any other Person or against any collateral security or guarantee for
the Obligations or any right of offset with respect thereto, and any failure by
the Administrative Agent or any Lender to pursue such other rights or remedies
or to collect any payments from the Borrower or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agent or any Lender against the Guarantor. This
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Guarantor and its successors and
assigns thereof, and shall inure to the benefit of the Administrative Agent and
the Lenders, and their respective successors, indorsees, transferees and
assigns, until the satisfaction of all of the Termination
Requirements.
7. Reinstatement. This
Guarantee shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. The
Guarantor hereby agrees that the Obligations will be paid to the Administrative
Agent without set-off or counterclaim in U.S. Dollars at the office of the
Administrative Agent located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx,
Xxxxxxx 00000.
9. Authority of Administrative
Agent. The Guarantor acknowledges that the rights and
responsibilities of the Administrative Agent under this Guarantee with respect
to any action taken by the Administrative Agent or the exercise or non-exercise
by the Administrative Agent of any option, right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Guarantor shall not be under
any obligation, or entitlement, to make any inquiry respecting such
authority.
10. Notices. All
notices, requests and demands to or upon the Administrative Agent, any Lender or
the Guarantor to be effective shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (1) when delivered by hand or (2) if given by mail, when deposited
in the mails by certified mail, return receipt requested, or (3) if by telex,
fax or similar electronic transfer, when sent and receipt has been confirmed, at
the address or transmission number for notices provided in Section 10.2 of the
Credit Agreement.
The
Administrative Agent, each Lender and the Guarantor may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
11. Severability. Any
provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Integration. This
Guarantee represents the agreement of the Guarantor with respect to the subject
matter hereof and there are no promises or representations by the Administrative
Agent or any Lender relative to the subject matter hereof not reflected
herein.
13. Amendments in Writing; No
Waiver; Cumulative Remedies.
(a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantor
and the Administrative Agent, provided that any
provision of this Guarantee may be waived by the Administrative Agent and such
of the Lenders as may be required under the provisions of the Credit Agreement
to concur in the action then being taken in a letter or agreement executed by
the Administrative Agent or by telex or facsimile transmission from the
Administrative Agent.
(b) Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to paragraph 13(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion.
(c) The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by
law.
14. Section
Headings. The section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
15. Successors and
Assigns. This Guarantee shall be binding upon the successors
and assigns of the Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and
assigns.
16. GOVERNING
LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
17. Submission to Jurisdiction;
Waivers. The Guarantor hereby irrevocably and
unconditionally:
(a) Submits
for itself and its property in any legal action or proceeding relating to this
Guarantee and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Guarantor at its address referred
to in Section 10(b) hereof or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section 17 any
special, exemplary, punitive or consequential damages.
18. WAIVER OF JURY
TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
[SIGNATURES
ON FOLLOWING PAGES]
IN
WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed
and delivered by its duly authorized officer as of the day and year first above
written.
By: /s/ Xxxxxx
Xxxxx
Name:
Xxxxxx Xxxxx
Title:
EVP and CFO
SIGNATURE
PAGE TO GUARANTEE AGREEMENT