Exhibit 10(v)-7
SUBSIDIARY GUARANTEE
THIS SUBSIDIARY GUARANTEE (this
“ Guarantee ”) made and delivered as of
November 28, 2007, by each of the Subsidiaries of EnergySouth,
Inc., a Delaware corporation (“ Parent Borrower
”), identified on the signature pages of this Guarantee (each
a “ Guarantor ” and collectively the “
Guarantors ”) 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 other Secured Parties as provided in
the Credit Agreement (the Lenders, the Administrative Agent, the
Issuing Bank, the Swingline Lender, and such other Secured Parties
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 (“ Subsidiary
Borrower ” and, together with Parent Borrower, the
“ Borrowers ”), Parent Borrower, 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 are used
herein with the respective meanings given to such capitalized terms
in the Credit Agreement);
WHEREAS, the Credit Agreement
provides for the issuance of the Bay Gas LC for the account of
Subsidiary Borrower and the making of Bay Gas Revolving Loans to
the Subsidiary Borrower;
WHEREAS, it is a condition to the ESI
Lenders’ obligation to make ESI Revolving Loans and Swingline
Loans to Parent Borrower, and to issue Letters of Credit for the
account of Parent Borrower, as provided in the Credit Agreement,
that each Guarantor, as a Subsidiary, unconditionally guarantee the
payment of (i) all ESI Revolving Loans and Swingline Loans to
Parent Borrower, (ii) all obligations of Parent Borrower to
reimburse the Issuing Bank in respect of LC Disbursements made
under the ESI LCs, and (iii) all other Obligations of Parent
Borrower and all Subsidiaries, including without limitation, all
payments, obligations and liabilities in respect of Hedging
Obligations and Treasury Management Obligations owing to any
Lenders or their respective Affiliates, as provided in the Credit
Agreement (the ESI Revolving Loans and Swingline Loans to Parent
Borrower, ESI LC reimbursement obligations of Parent Borrower, and
such other Obligations of Parent Borrower and the Subsidiaries
being herein collectively referred to as the “ Parent
Guaranteed Obligations ”; the term “ Parent
Guaranteed Obligations ” to include, without limitation
(x) all principal and interest due with respect to all ESI
Revolving Loans and the Swingline Loans to Parent Borrower
outstanding under the terms
of the
Credit Agreement, all interest and fees accruing on outstanding ESI
LCs and unpaid ESI LC reimbursement obligations, and all payments
due from, and all interest and fees payable by, any Subsidiaries 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 is
allowed or allowable in such proceeding), (y) all commitment
fees, Letter of Credit fees, and all other fees, expenses, and
amounts otherwise payable by Parent Borrower or any Subsidiaries
for reimbursement or indemnification under the terms of the Credit
Agreement, any other Loan Document, and any other 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);
WHEREAS, it is a condition to the
Issuing Bank’s obligation to issue the Bay Gas LC for the
account of Subsidiary Borrower, and to the Bay Gas Lenders’
obligations to make Bay Gas Revolving Loans to the Subsidiary
Borrower, as provided in the Credit Agreement, that each Guarantor,
as a Subsidiary, unconditionally guarantee the payment of
(i) all LC Disbursements made in respect of the Bay Gas LC,
(ii) all Bay Gas Revolving Loans, and (iii) all other
Obligations of Subsidiary Borrower, including without limitation,
all payments, obligations and liabilities in respect of Hedging
Obligations and Treasury Management Obligations owing by Subsidiary
Borrower to any Lenders or their respective Affiliates, as provided
in the Loan Documents (the LC Disbursements made in respect of the
Bay Gas LC, the Bay Gas Revolving Loans, and such other Obligations
of Subsidiary Borrower being herein collectively referred to as the
“ Subsidiary Borrower Guaranteed Obligations ”;
the term “ Subsidiary Borrower Guaranteed Obligations
” to include, without limitation (x) all principal and
interest due with respect to all LC Disbursements made in respect
of the Bay Gas LC, all Bay Gas Revolving Loans, and all payments
due from, and all interest and fees payable by, Subsidiary Borrower
in respect of the Bay Gas LC and all 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 is allowed or allowable in such
proceeding), (y) all commitment fees and other fees, expenses
and amounts otherwise payable by Subsidiary Borrower for
reimbursement or indemnification under the terms of the Credit
Agreement, the Bay Gas LC, any other Loan Document, and any other
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 making of the ESI
Revolving Loans and Swingline Loans to Parent Borrower, the
issuance of the ESI LCs for the account of Parent Borrower, the
issuance of the Bay Gas LC for the account of Subsidiary Borrower,
and the making of the Bay Gas Revolving Loans to the Subsidiary
Borrower, will result in direct and substantial benefits to each
Guarantor;
NOW, THEREFORE, in order to induce
the Guaranteed Parties to make the Loans and otherwise to extend
and continue to extend credit to Borrowers hereafter, and in
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consideration of $10.00 and other good and valuable consideration
received by each Guarantor, each Guarantor hereby declares and
agrees:
1. Each Guarantor hereby
unconditionally and irrevocably guarantees to the Guaranteed
Parties, and any transferee of any of the Parent Guaranteed
Obligations, jointly and severally, the full and prompt payment
when due of all Parent Guaranteed Obligations and all costs,
charges and expenses (including reasonable attorneys’ fees)
incurred or sustained by the Guaranteed Parties in enforcing the
obligations of such Guarantor hereunder. Each Guarantor hereby
unconditionally and irrevocably guarantees to the Guaranteed
Parties, and any transferee of any of the Subsidiary Borrower
Guaranteed Obligations, jointly and severally, the full and prompt
payment when due of all Subsidiary Borrower Guaranteed Obligations
and all costs, charges and expenses (including reasonable
attorneys’ fees) incurred or sustained by the Guaranteed
Parties in enforcing the obligations of such Guarantor hereunder.
If any portion of the Parent Guaranteed Obligations or the
Subsidiary Borrower Guaranteed Obligations is not paid when due,
each Guarantor hereby agrees to and will immediately pay same,
without resort by the Guaranteed Parties to any other person or
party. The obligation of each Guarantor to the Guaranteed Parties
hereunder is primary, absolute and unconditional, except as may be
specifically set forth herein. Any and all payments by each
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). Each 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 Parent Guaranteed Obligations and all
Subsidiary Borrower 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 any
Guarantor or 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, the Bay Gas LC or the other Loan Documents, or
(iii) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Guarantor. Each
Guarantor acknowledges and agrees that the number and amounts of
outstanding Parent Guaranteed Obligations and the Subsidiary
Borrower Guaranteed Obligations may fluctuate from time to time
hereafter, and that Borrowers may make payments to the Guaranteed
Parties from time to time hereafter. Each Guarantor expressly
agrees that this Guarantee shall continue in full force and effect
notwithstanding such fluctuations and payments, and whether or not
any Parent Guaranteed Obligations or Subsidiary Borrower Guaranteed
Obligations are outstanding at any particular time, until such time
as all Parent Guaranteed Obligations and Subsidiary Borrower
Guaranteed Obligations have been paid in full and any commitment of
the Guaranteed Parties under the Credit Agreement has been
terminated.
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3. Each Guarantor hereby waives
notice of the Guaranteed Parties’ acceptance of this
Guarantee and the creation, extension or renewal of any ESI
Revolving Loans, Swingline Loans, ESI LCs, or other Parent
Guaranteed Obligations, or the Bay Gas LC or any Bay Gas Revolving
Loans or other Subsidiary Borrower Guaranteed Obligations. Each
Guarantor hereby consents and agrees that, at any time or times,
without notice to or further approval from such Guarantor, and
without in any way affecting the obligations of such Guarantor
hereunder, the Guaranteed Parties may, with or without
consideration (i) release, compromise with, or agree not to
sue, in whole or in part, Borrowers or any other obligor,
guarantor, endorser or surety on any Parent Guaranteed Obligations
or any Subsidiary Borrower Guaranteed Obligations, (ii) renew,
extend, accelerate, or increase or decrease the principal amount of
any Parent Guaranteed Obligations or any Subsidiary Borrower
Guaranteed Obligations, either in whole or in part,
(iii) amend, waive, or otherwise modify any of the terms of
any Parent Guaranteed Obligations or any Subsidiary Borrower
Guaranteed Obligations or of any Security Documents or other
undertakings of Borrowers or any other obligor, endorser, guarantor
or surety in connection with any Parent Guaranteed Obligations or
any Subsidiary Borrower Guaranteed Obligations, and (iv) apply
any payment received from Borrowers or from any other obligor,
guarantor, endorser or surety on any Parent Guaranteed Obligations
or any Subsidiary Borrower Guaranteed Obligations to any of the
liabilities of Borrowers or of such other obligor, guarantor,
endorser, or surety which the Guaranteed Parties may choose.
4. Each 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 Parent
Guaranteed Obligations or any Subsidiary Borrower 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 such Guarantor, and such
surrender, receipt, release or substitution shall not in any way
affect the obligations of such 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 such 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.
5. Each Guarantor hereby waives
presentment, demand, protest, and notice of dishonor of any of the
liabilities guaranteed hereby. The Guaranteed Parties shall have no
duty or obligation (i) to proceed or exhaust any remedy
against either Borrower, any other Guarantor or obligor, guarantor,
endorser, or surety on any Parent Guaranteed Obligations or any
Subsidiary Borrower Guaranteed Obligations, or any other security
held by the Guaranteed Parties for any Parent Guaranteed
Obligations or any Subsidiary Borrower Guaranteed Obligations, or
(ii) to give any notice whatsoever to either Borrower or any
other Guarantor, obligor, guarantor, endors
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