Exhibit 10(v)-6
AMENDED AND RESTATED PARENT GUARANTEE
THIS
AMENDED AND RESTATED PARENT GUARANTEE (this “
Guarantee ”) made and delivered as of
November 28, 2007, by ENERGYSOUTH, INC., a Delaware
corporation (the “ Guarantor ”) in favor of
(i) each of the lenders from time to time parties to the
Credit Agreement described below (each a “ Lender
” and collectively the “ Lenders ”),
(ii) Regions Bank, in its capacities as Administrative Agent,
Issuing Bank, and Swingline Lender under the terms of the Credit
Agreement and the other Loan Documents referred to in the Credit
Agreement (in such capacities, the “ Administrative
Agent ”, “ Issuing Bank ” and “
Swingline Lender ”, respectively), and (iii) such
of the Lenders and their respective Affiliates that are holders of
the Obligations as provided in the Credit Agreement (the Lenders,
the Administrative Agent, the Issuing Bank, the Swingline Lender,
and such Affiliates collectively referred to herein as the “
Guaranteed Parties ”).
W I T N E S S
E T H :
WHEREAS,
Bay Gas Storage Company, Ltd., an Alabama limited partnership (the
“ Subsidiary Borrower ”), Guarantor, the
Lenders, the Administrative Agent, the Issuing Bank, and the
Swingline Lender are parties to a certain Amended and Restated
Credit Agreement dated as of November 28, 2007 (as the same
may be further amended, restated, and supplemented from time to
time, the “ Credit Agreement ”; capitalized
terms used in this Guarantee that are defined in the Credit
Agreement being used herein with the respective meanings given to
such capitalized terms in the Credit Agreement);
WHEREAS,
it is a condition to the Lenders’ obligation to make Loans to
Guarantor and Subsidiary Borrower, and the Issuing Bank’s
obligation to issue and continue in effect the Letters of Credit
for the account of Guarantor and Subsidiary Borrower, as provided
in the Credit Agreement, that Guarantor unconditionally guarantee
the payment of (i) all Bay Gas Revolving Loans to Subsidiary
Borrower, (ii) all reimbursement and other payment obligations
of Subsidiary Borrower in respect of the Bay Gas LC issued for the
account of Subsidiary Borrower, (iii) all other Obligations of
Subsidiary Borrower as provided in the Loan Documents, and
(iv) all Obligations of any Subsidiaries of Guarantor in
respect of Hedging Obligations and Treasury Management Obligations
owing to any Lenders or their respective Affiliates as provided in
the Credit Agreement (all such Loans to Subsidiary Borrower, all
such reimbursement and other payment obligations of Subsidiary
Borrower in respect of the Bay Gas LC, and all other such
Obligations of Subsidiary Borrower and such Subsidiaries of
Guarantor being herein collectively referred to as the “
Guaranteed Obligations ”; the term “
Guaranteed Obligations ” to include, without
limitation (x) all principal and interest due with respect to
all Bay Gas Revolving Loans to Subsidiary Borrower outstanding
under the terms of the Credit Agreement, all Letter of Credit fees
payable by Subsidiary Borrower and all reimbursement obligations
and other payment obligations in respect of the Bay Gas LC, and all
payments due from, and all interest and fees payable by, Subsidiary
Borrower and any other Subsidiaries of Guarantor in respect of
Hedging Obligations and Treasury Management Obligations owing
to
any
Lenders or their respective Affiliates, including, without
limitation, all interest and fees accruing or that would have
accrued after the filing of a petition in bankruptcy or other
insolvency proceeding (whether or not such claim for interest and
fees is allowed or allowable in such proceeding), (y) all
commitment fees and all other fees, expenses, and amounts otherwise
payable by Subsidiary Borrower or other Subsidiaries of Guarantor
for reimbursement or indemnification under the terms of the Credit
Agreement, any other Loan Document, or any document evidencing or
governing such Hedging Obligations and Treasury Management
Obligations, and (z) all renewals, extensions, modifications,
and refinancings (in whole or in part) of any of the amounts
referred to above); and
WHEREAS,
the issuance of the Bay Gas LC for the account of Subsidiary
Borrower and the making of Bay Gas Revolving Loans to Subsidiary
Borrower will result in direct and substantial benefits to
Guarantor;
NOW,
THEREFORE, in order to induce the Issuing Bank to issue and
continue in effect the Bay Gas LC for the account of Subsidiary
Borrower and to induce the Guaranteed Parties to make Loans and
otherwise to extend and continue to extend credit to Subsidiary
Borrower and other Subsidiaries of Guarantor hereafter, and in
consideration of $10.00 and other good and valuable consideration
received by Guarantor, Guarantor hereby declares and agrees:
1.
Guarantor hereby unconditionally and irrevocably guarantees to the
Guaranteed Parties, and any transferee of any of the Guaranteed
Obligations, the full and prompt payment when due of all Guaranteed
Obligations and all costs, charges and expenses (including
reasonable attorneys’ fees) incurred or sustained by the
Guaranteed Parties in enforcing the obligations of Guarantor
hereunder. If any portion of the Guaranteed Obligations is not paid
when due, Guarantor hereby agrees to and will immediately pay same,
without resort by the Guaranteed Parties to any other person or
party. The obligation of Guarantor to the Guaranteed Parties
hereunder is primary, absolute and unconditional. Any and all
payments by Guarantor hereunder shall be made free and clear of,
and without deduction for, any set-off, counterclaim, recoupment,
or withholding so that, in each case, each Guaranteed Party will
receive, after giving effect to any Taxes (other than taxes
applicable to the Guaranteed Party of the types described in the
definition of “ Excluded Taxes ” as set forth in
the Credit Agreement), the full amount that it would otherwise be
entitled to receive with respect to the Guaranteed Obligations (but
without duplication of amounts for Taxes already included in the
Guaranteed Obligations). Guarantor acknowledges and agrees that
this is a guarantee of payment when due, and not of
collection.
2. This
Guarantee is continuing in nature and shall be effective with
respect to the full amount outstanding under all Guaranteed
Obligations, now existing or hereafter made or extended, and
notwithstanding (i) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation
or like proceeding relating to Guarantor or Subsidiary Borrower, or
any action taken with respect to this Guarantee by any trustee or
receiver, or by any court, in any such proceeding, (ii) any
lack of validity or enforceability of the Credit Agreement or the
other Loan Documents, or (iii) any other circumstance that
might otherwise constitute a defense available to, or a discharge
of, Guarantor. Guarantor acknowledges and agrees that the number
and amounts of outstanding Guaranteed Obligations may fluctuate
from time to time hereafter, and that Subsidiary Borrower may make
payments to the Guaranteed Parties from time
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to time
hereafter. Guarantor expressly agrees that this Guarantee shall
continue in full force and effect notwithstanding such fluctuations
and payments, and whether or not any Guaranteed Obligations are
outstanding at any particular time, until such time as all
Guaranteed Obligations have been paid in full and any commitment of
the Guaranteed Parties under the Credit Agreement has been
terminated.
3.
Guarantor hereby waives notice of the Guaranteed Parties’
acceptance of this Guarantee and the creation, extension or renewal
of any Loans or other Guaranteed Obligations. Guarantor hereby
consents and agrees that, at any time or times, without notice to
or further approval from Guarantor, and without in any way
affecting the obligations of Guarantor hereunder, the Guaranteed
Parties may, with or without consideration (i) release,
compromise with, or agree not to sue, in whole or in part,
Subsidiary Borrower or any other obligor, guarantor, endorser or
surety on any Guaranteed Obligations, (ii) renew, extend,
accelerate, or increase or decrease the principal amount of any
Guaranteed Obligations, either in whole or in part,
(iii) amend, waive, or otherwise modify any of the terms of
any Guaranteed Obligations or of any Security Document or other
undertaking of Subsidiary Borrower or any other obligor, endorser,
guarantor or surety in connection with any Guaranteed Obligations,
and (iv) apply any payment received from Subsidiary Borrower
or from any other obligor, guarantor, endorser or surety on any
Guaranteed Obligations to any of the liabilities of Subsidiary
Borrower or of such other obligor, guarantor, endorser, or surety
which the Guaranteed Parties may choose.
4.
Guarantor hereby consents and agrees that the Guaranteed Parties
may at any time or times, either with or without consideration,
surrender, release or receive any property or other collateral of
any kind or nature whatsoever held by it or for its account
securing any Guaranteed Obligations, or substitute any collateral
so held by the Guaranteed Parties for other collateral of like or
different kind, without notice to or further consent from
Guarantor, and such surrender, receipt, release or substitution
shall not in any way affect the obligations of Guarantor hereunder.
The Guaranteed Parties shall have full authority to adjust,
compromise, and receive less than the amount due upon any such
collateral, and may enter into any accord and satisfaction
agreement with respect to the same as the Guaranteed Parties may
deem advisable without affecting the obligations of Guarantor
hereunder. The Guaranteed Parties shall be under no duty to
undertake to collect upon such collateral or any part thereof, and
no Guarantor’s obligations hereunder shall be affected by the
Guaranteed Parties’ alleged negligence or mistake in judgment
in handling, disposing of, obtaining, or failing to collect upon or
perfect a security interest in, any such collateral.
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