EXHIBIT 10.79
COMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAM
between
AGL CAPITAL CORPORATION, as Issuer
AGL RESOURCES INC., as Guarantor
and
, as Dealer
--------------------------------------
Concerning Notes to be issued pursuant to an Issuing and
Paying Agency Agreement dated as of September 25, 2000
between the Issuer and The Bank of New York, as Issuing and
Paying Agent
Dated As of
September 25, 2000
COMMERCIAL PAPER DEALER AGREEMENT
4(2) Program
This agreement ("Agreement") sets forth the understandings between the
Issuer, the Guarantor and the Dealer in connection with the issuance and sale by
the Issuer of its short-term promissory notes through the Dealer (the "Notes").
The Guarantor has agreed unconditionally and irrevocably to guarantee
payment in full of the principal and interest (if any) on all such Notes of the
Issuer, pursuant to a guarantee, dated the date hereof, in the form of Exhibit C
hereto (the "Guarantee").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes
----------------------------------
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by the Dealer in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of the Dealer, offer, solicit or accept offers to purchase, or sell,
any Notes except (a) in transactions with one or more dealers which may from
time to time after the date hereof become dealers with respect to the Notes by
executing with the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by the Dealer and
the Issuer, shall have a maturity not exceeding 270 days from the date of
issuance (exclusive of days of grace) and shall not contain any provision for
extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement and the
Notes shall be either individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuer. Except as
otherwise agreed, in the event that the Dealer is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment for a Note on
the date fixed for settlement, the Dealer shall promptly notify the Issuer, and
if the Dealer has theretofore paid the Issuer for the Note, the Issuer will
promptly return such funds to the Dealer against its return of the Note to the
Issuer, in the case of a certificated Note, and upon notice of such failure in
the case of a book-entry Note. If such failure occurred for any reason other
than default by the Dealer, the Issuer shall reimburse the Dealer on an
equitable basis for the Dealer's loss of the use of such funds for the period
such funds were credited to the Issuer's account.
1.6 All offers and sales of the Notes by the Issuer shall be effected
pursuant to the exemption from the registration requirements of the Securities
Act provided by Section 4(2) thereof, which exempts transactions by an issuer
not involving any public offering. The Dealer and the Issuer hereby establish
and agree to observe the following procedures in connection with offers, sales
and subsequent resales or other transfers of the Notes:
(a) Offers and sales of the Notes shall be made only to investors
reasonably believed by the Dealer to be: (i) Institutional Accredited
Investors or Sophisticated Individual Accredited Investors, (ii) non-bank
fiduciaries or agents that will be purchasing Notes for one or more
accounts, each of which is an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor, and (iii) Qualified
Institutional Buyers.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legends described in clause (e) below.
(c) No general solicitation or general advertising shall be used
in connection with the offering of the Notes. Without limiting the
generality of the foregoing, without the prior written approval of Dealer,
the Issuer shall not issue any press release or place or publish any
"tombstone" or other advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than
$250,000 principal or face amount, and no Note shall be issued in a smaller
principal or face amount. If the purchaser is a non-bank fiduciary acting
on behalf of others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance with Rule
506 under the Securities Act, and shall be subject to the restrictions
described in the legend appearing on Exhibit A hereto. A legend
substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of
Notes hereunder, as well as on each Note offered and sold pursuant to this
Agreement.
(f) Dealer shall furnish or shall have furnished to each
purchaser of Notes being sold to an ultimate purchaser for the first time a
copy of the then-current Private Placement Memorandum unless such purchaser
has previously received a copy of the Private Placement Memorandum as then
in effect. The Private Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an opportunity to ask questions
of, and receive information from, the Issuer and the Dealer and shall
provide the names, addresses and telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of
the holders and prospective purchasers from time to time of the Notes that,
if at any time the Issuer shall not be subject to Section 13 or 15(d) of
the Exchange Act, the Issuer will furnish, upon request and at its expense,
to the Dealer and to holders and prospective purchasers of Notes
information required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by Dealer
would be ineligible for resale under Rule 144A, the Issuer shall
immediately notify Dealer (by telephone, confirmed in writing) of such fact
and shall promptly prepare and deliver to Dealer an amendment or supplement
to the Private Placement Memorandum describing the Notes that are
ineligible, the reason for such ineligibility and any other relevant
information relating thereto.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as permitted
by Section 1.6(i)) within the preceding six months neither the Issuer nor
any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof acting on behalf of the Issuer has offered or sold any
Notes, or any substantially similar security of the Issuer (including,
without limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from, any person other than the
Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer
also agrees that, as long as the Notes are being offered for sale by the
Dealer and the other dealers referred to in Section 1.2 hereof as
contemplated hereby and until at least six months after the offer of Notes
hereunder has been terminated, neither the Issuer nor any person other than
the Dealer or the other dealers referred to in Section 1.2 hereof (except
as contemplated by Section 1.2 hereof) will offer the Notes or any
substantially similar security of the Issuer for sale to, or solicit offers
to buy any such security from, any person other than the Dealer or the
dealers referred to in Section 1.2 hereof, it being understood that such
agreement is made with a view to bringing the offer and sale of the Notes
within the exemption provided by Section 4(2) of the Securities Act and
Rule 506 thereunder and shall survive any termination of this Agreement.
The Issuer hereby represents and warrants that it has not taken or omitted
to take, and will not take or omit to take, any action that would cause the
offering and sale of Notes hereunder to be integrated with any other
offering of securities, whether such offering is made by the Issuer or some
other party or parties.
(b) The Issuer represents and agrees that the proceeds of the sale
of the Notes are not currently contemplated to be used for the purpose of
buying, carrying or trading securities within the meaning of Regulation T
and the interpretations thereunder by the Board of Governors of the Federal
Reserve System. In the event that the Issuer determines to use such
proceeds for the purpose of buying, carrying or trading securities, whether
in connection with an acquisition of another company or otherwise, the
Issuer shall give the Dealer at least five business days' prior written
notice to that effect. The Issuer shall also give the Dealer prompt notice
of the actual date that it commences to purchase securities with the
proceeds of the Notes. Thereafter, in the event that the Dealer purchases
Notes as principal and does not resell such Notes on the day of such
purchase, to the extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such Notes only to
offerees it reasonably believes to be QIBs or to QIBs it reasonably
believes are acting for other QIBs, in each case in accordance with Rule
144A.
Section 2. Representations and Warranties of Issuer and the Guarantor
----------------------------------------------------------
The Issuer, with respect to Sections 2.1 through 2.10, and the Guarantor, with
respect to Sections 2.11 through 2.18, represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute,
deliver and perform its obligations under the Notes, this Agreement and the
Issuing and Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have been
duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
2.3 The Notes have been duly authorized, and when issued and delivered as
provided in the Issuing and Paying Agency Agreement, will be duly and validly
issued and delivered and will constitute legal, valid and binding obligations of
the Issuer enforceable against the Issuer in accordance with their terms subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
2.4 The offer and sale of Notes in the manner contemplated hereby in
accordance with the Private Placement Memorandum and the Issuing and Paying
Agency Agreement do not require registration of the Notes under the Securities
Act, pursuant to the exemption from registration contained in Section 4(2)
thereof, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and
----------
unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Notes or the Issuing
and Paying Agency Agreement, except as may be required under Regulation D of the
Securities Act or by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance and delivery of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or an event of default under any
of the terms of the Issuer's charter documents or by-laws, any contract or
instrument to which the Issuer is a party or by which it or its property is
bound, or any law or regulation, or any order, writ, injunction or decree of any
court or government instrumentality, to which the Issuer is subject or by which
it or its property is bound, which breach or event of default might have a
material adverse effect on the condition (financial or otherwise), operations or
business prospects of the Issuer or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or any of
its subsidiaries which might result in a material adverse change in the
condition (financial or otherwise), operations or business prospects of the
Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
2.11 The Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
all the requisite power and authority to execute, deliver and perform its
obligations under the Guarantee, this Agreement and the Issuing and Paying
Agency Agreement.
2.12 This Agreement, the Issuing and Paying Agency Agreement and the
Guarantee have been duly authorized, executed and delivered by the Guarantor and
constitute legal, valid and binding obligations of the Guarantor enforceable
against the Guarantor in accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and except
as enforceability of the indemnification provisions of this Agreement may be
limited by federal securities laws.
2.13 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Guarantee or the
Issuing and Paying Agency Agreement, except as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
2.14 Neither the execution and delivery by the Guarantor of this
Agreement, the Issuing and Paying Agency Agreement and the Guarantee, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Guarantor, will (i) result in the creation or imposition of any mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of the Guarantor, or (ii) violate or result in a breach or an event
of default under any of the terms of the Guarantor's charter documents or by-
laws, any contract or instrument to which the Guarantor is a party or by which
it or its property is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality, to which the
Guarantor is subject or by which it or its property is bound, which breach or
event of default might have a material adverse effect on the condition
(financial or otherwise), operations or business prospects of the Guarantor or
the ability of the Guarantor to perform its obligations under this Agreement,
the Guarantee or the Issuing and Paying Agency Agreement.
2.15 Except as disclosed in the Private Placement Memorandum, there is no
litigation or governmental proceeding pending, or to the knowledge of the
Guarantor threatened, against or affecting the Guarantor or any of its
subsidiaries which might result in a material adverse change in the condition
(financial or otherwise), operations or business prospects of the Guarantor or
the ability of the Guarantor to perform its obligations under this Agreement,
the Guarantee or the Issuing and Paying Agency Agreement.
2.16 The Guarantor is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2.17 Neither the Private Placement Memorandum nor the Guarantor
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.18 The Guarantee does not require registration under the Securities Act,
pursuant to the exemption from registration contained in Section 4(2) thereof.
2.19 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by each of the Issuer and the Guarantor (as to
itself) to the Dealer, as of the date thereof, that, both before and after
giving effect to such issuance and after giving effect to such amendment or
supplement, (i) the representations and
warranties given by the Issuer and the Guarantor set forth above in this Section
2 remain true and correct on and as of such date as if made on and as of such
date, (ii) in the case of an issuance of Notes, the Notes being issued on such
date have been duly and validly issued and constitute legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) in the case of an issuance of Notes,
since the date of the most recent Private Placement Memorandum, there has been
no material adverse change in the condition (financial or otherwise), operations
or business prospects of the Issuer or the Guarantor which has not been
disclosed to the Dealer in writing.
Section 3. Covenants and Agreements of Issuer and Guarantor
------------------------------------------------
The Issuer and the Guarantor each covenants and agrees, as applicable, that:
3.1 Each of the Issuer and the Guarantor will give the Dealer prompt
notice (but in any event prior to any subsequent issuance of Notes hereunder) of
any amendment to, modification of, or waiver with respect to, the Notes or the
Issuing and Paying Agency Agreement, including a complete copy of any such
amendment, modification or waiver.
3.2 Each of the Issuer and the Guarantor shall, whenever there shall
occur any change in the Issuer's or the Guarantor's condition (financial or
otherwise), operations or business prospects or any development or occurrence in
relation to the Issuer or the Guarantor that would be material to holders of the
Notes or potential holder of the Notes (including any downgrading or receipt of
any notice of intended or potential downgrading or any review for potential
change in the rating accorded any of the Issuer's or Guarantor's securities by
any nationally recognized statistical rating organization which has published a
rating of the Notes), promptly, and in any event prior to any subsequent
issuance of Notes hereunder, notify the Dealer (by telephone, confirmed in
writing) of such change, development, or occurrence.
3.3 Each of the Issuer and the Guarantor shall from time to time furnish
to the Dealer such information as the Dealer may reasonably request, including,
without limitation, any press releases or material provided by the Issuer or the
Guarantor to any national securities exchange or rating agency, regarding (i)
the Issuer's and the Guarantor's operations and financial condition, (ii) the
due authorization and execution of the Notes, and (iii) the Issuer's ability to
pay the Notes as they mature or the Guarantor's ability to make payments under
the Guarantee.
3.4 Each of the Issuer and the Guarantor will take all such action as
the Dealer may reasonably request to ensure that each offer and each sale of the
Notes will comply with any applicable state Blue Sky laws; provided, that the
--------
Issuer and the Guarantor shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
3.5 Each of the Issuer and the Guarantor will not be in default of any
of its obligations hereunder, under the Notes, under the Guarantee or under the
Issuing and Paying Agency Agreement, at any time that any of the Notes are
outstanding.
3.6 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) an opinion of counsel to
the Guarantor, addressed to the Dealer, satisfactory in form and substance to
the Dealer, (c) a copy of the executed Guarantee, (d) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (e) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (f) a copy of resolutions
adopted by the Board of Directors of the Guarantor, satisfactory in form and
substance to the Dealer and certified by the Secretary or similar officer of the
Guarantor authorizing the execution and delivery by the Guarantor of this
Agreement, the Guarantee and the Issuing and Paying Agency Agreement and
consummation by the Guarantor of the transactions contemplated hereby and
thereby, (f) a copy of resolutions adopted by the Board of Directors of the
Guarantor, satisfactory in form and substance to the Dealer and certified by the
Secretary or similar officer of the Guarantor authorizing the execution and
delivery by the Guarantor of this Agreement, the Guarantee and the Issuing and
Paying Agency Agreement and consummation by the Guarantor of the transactions
contemplated hereby and thereby, (g) prior to the issuance of any Notes
represented by a book-entry note registered in the name of DTC or its nominee, a
copy of the executed Letter of Representations among the Issuer, the Issuing and
Paying Agent and DTC and (h) such other certificates, opinions, letters and
documents as the Dealer shall have reasonably requested.
3.7 The Issuer and the Guarantor, jointly and severally, agree to
reimburse the Dealer for all of the Dealer's out-of-pocket expenses related to
this Agreement, including expenses incurred in connection with its preparation
and negotiation, and the transactions contemplated hereby (including, but not
limited to, the printing and distribution of the Private Placement Memorandum),
and, if applicable, for the reasonable fees and out-of-pocket expenses of the
Dealer's counsel.
Section 4. Disclosure
----------
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer and the
Guarantor. The Private Placement Memorandum shall contain a statement expressly
offering an opportunity for each prospective purchaser to ask questions of, and
receive answers from, the Issuer and the Guarantor concerning the offering of
Notes and to obtain relevant additional information which the Issuer or the
Guarantor possesses or can acquire without unreasonable effort or expense.
4.2 The Issuer and the Guarantor each agrees promptly to furnish the
Dealer the Company Information as it becomes available.
4.3 (a) Each of the Issuer and the Guarantor further agrees to notify
the Dealer promptly upon the occurrence of any event relating to or affecting it
that would cause the Private Placement Memorandum then in existence to include
an untrue statement of material fact or to omit to state a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which they are made, not misleading.
(b) In the event that the Issuer or the Guarantor gives the Dealer
notice pursuant to Section 4.3(a) and the Dealer notifies the Issuer or the
Guarantor that it then has Notes it is holding in inventory, the Issuer and the
Guarantor each agrees promptly to supplement or amend the Private Placement
Memorandum so that such Private Placement Memorandum, as amended or
supplemented, shall not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, and the
Issuer and the Guarantor shall make such supplement or amendment available to
the Dealer.
(c) In the event that (i) the Issuer or the Guarantor gives the
Dealer notice pursuant to Section 4.3(a) and (ii) the Dealer does not notify the
Issuer that it is then holding Notes in inventory and (iii) the Issuer and the
Guarantor chooses not to promptly amend or supplement the Private Placement
Memorandum in the manner described in clause (b) above, then all solicitations
and sales of Notes shall be suspended until such time as the Issuer or the
Guarantor has so amended or supplemented the Private Placement Memorandum, and
made such amendment or supplement available to the Dealer.
4.4 The Issuer agrees that it shall not have outstanding at any time
Notes issued in an aggregate amount in excess of the authorized amount of the
Guarantee.
Section 5. Indemnification and Contribution
--------------------------------
5.1 The Issuer and the Guarantor, jointly and severally will indemnify
and hold harmless the Dealer, each individual, corporation, partnership, trust,
association or other entity controlling the Dealer,
any affiliate of the Dealer or any such controlling entity and their respective
directors, officers, employees, partners, incorporators, shareholders, servants,
trustees and agents (hereinafter the "Indemnitees") against any and all
liabilities, penalties, suits, causes of action, losses, damages, claims, costs
and expenses (including, without limitation, fees and disbursements of counsel)
or judgments of whatever kind or nature (each a "Claim"), imposed upon, incurred
by or asserted against the Indemnitees arising out of or based upon (i) any
allegation that the Private Placement Memorandum, the Company Information, the
Guarantor Information or any information provided by the Issuer or the Guarantor
to the Dealer included (as of any relevant time) or includes an untrue statement
of a material fact or omitted (as of any relevant time) or omits to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii) arising out of
or based upon the breach by the Issuer or the Guarantor of any agreement,
covenant or representation made in or pursuant to this Agreement. This
indemnification shall not apply to the extent that the Claim arises out of or is
based upon Dealer Information.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
and the Guarantor, jointly and severally shall contribute to the aggregate costs
incurred by the Dealer in connection with any Claim in the proportion of the
respective economic interests of the Issuer and the Guarantor, on the one hand,
and the Dealer, on the other hand; provided, however, that such contribution by
--------
the Issuer and the Guarantor shall be in an amount such that the aggregate costs
incurred by the Dealer do not exceed the aggregate of the commissions and fees
earned by the Dealer hereunder with respect to the issue or issues of Notes to
which such Claim relates. The respective economic interests shall be calculated
by reference to the aggregate proceeds to the Issuer of the Notes issued
hereunder and the aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions
-----------
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer and
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934,
as amended.
6.6 "Guarantor Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the
Guarantor's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, (ii) the Guarantor's
and its affiliates' other publicly available recent reports, including, but not
limited to, any publicly available filings or reports provided to their
respective shareholders, (iii) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (iv) any information
prepared or approved by the Guarantor for dissemination to investors or
potential investors in the Notes.
6.7 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.8 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.9 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.10 "Issuing and Paying Agent" shall mean the party designated as such
on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement.
6.11 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
6.12 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.13 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
-------
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 Each of the Issuer, the Guarantor and the Dealer agrees that any
suit, action or proceeding brought by any of them against another in connection
with or arising out of this Agreement or the Notes or the offer and sale of the
Notes shall be brought solely in the United States federal courts located in the
borough of Manhattan or the courts of the State of New York located in the
Borough of Manhattan. EACH OF THE DEALER, THE ISSUER AND THE GUARANTOR WAIVES
ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer or the
Guarantor, upon one business day's prior notice to such effect to the Dealer, or
by the Dealer upon one business day's prior notice to such effect to the Issuer
or the Guarantor. Any such termination, however, shall not affect the
obligations of the Issuer or the Guarantor under Sections 3.7, 5 and 7.3 hereof
or the respective representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the termination of this
Agreement.
7.5 This Agreement is not assignable by any party hereto without the
written consent of the other parties, which consent shall not be unreasonably
withheld.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
AGL CAPITAL CORPORATION, as Issuer
By:_____________________________
Name:
Title:
AGL RESOURCES INC., as Guarantor
By:_____________________________
Name:
Title:
________________________________, as Dealer
By:_____________________________
Name:
Title:
ADDENDUM
1. The other dealers referred to in clause (b) of Section 1.2 of the Agreement
are SunTrust Equitable Securities and Wachovia Securities, Inc..
2. The addresses of the respective parties for purposes of notices under
Section 7.1 are as follows:
For the Issuer: AGL Capital Corporation
Address: Location 1080
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
For the Guarantor: AGL Resources Inc.
Address: Location 1080
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
For the Dealer:
Address: World Financial Center - Xxxxx Xxxxx
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Product Management - CP
Telephone number: (000) 000-0000
Fax number: (000) 000-0000
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES
THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY OTHER APPLICABLE
SECURITIES LAW, AND OFFERS AND SALES THEREOF MAY BE MADE ONLY
IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER
WILL BE DEEMED TO REPRESENT THAT IT HAS BEEN AFFORDED AN
OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER AND
THE NOTES, THAT IT IS NOT ACQUIRING SUCH NOTE WITH A VIEW TO
ANY DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN
INSTITUTIONAL INVESTOR OR HIGHLY SOPHISTICATED INDIVIDUAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(a) UNDER THE ACT AND WHICH, IN THE CASE OF AN
INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF
EVALUATING AND BEARING THE ECONOMIC RISK OF AN INVESTMENT IN
THE NOTES AND (ii) HAS A NET WORTH OF AT LEAST $5 MILLION (AN
"INSTITUTIONAL ACCREDITED INVESTOR" OR "SOPHISTICATED
INDIVIDUAL ACCREDITED INVESTOR", RESPECTIVELY) AND THAT EITHER
IS PURCHASING NOTES FOR ITS OWN ACCOUNT, IS A U.S. BANK (AS
DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS AND LOAN
ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION
3(a)(5)(A) OF THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY
CAPACITY OR IS A FIDUCIARY OR AGENT (OTHER THAN A U.S. BANK OR
SAVINGS AND LOAN) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS
EACH OF WHICH IS SUCH AN INSTITUTIONAL ACCREDITED INVESTOR OR
SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR (i) WHICH ITSELF
POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH RESPECT TO
WHICH SUCH PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A
QUALIFIED INSTITUTIONAL BUYER ("QIB") WITHIN THE MEANING OF
RULE 144A UNDER THE ACT WHICH IS ACQUIRING NOTES FOR ITS OWN
ACCOUNT OR FOR ONE OR MORE ACCOUNTS, EACH OF WHICH IS A QIB AND
WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE INVESTMENT
DISCRETION; AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE
THAT THE SELLER MAY RELY UPON THE EXEMPTION FROM THE
REGISTRATION PROVISIONS OF SECTION 5 OF THE ACT PROVIDED BY
RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER THEREOF
SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER
THEREOF WILL BE MADE ONLY (A) IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE ACT, EITHER (i) TO THE ISSUER OR TO
XXXXXXX XXXXX MONEY MARKETS, INC. , SUNTRUST EQUITABLE
SECURITIES, WACHOVIA SECURITIES, INC. OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES
(COLLECTIVELY, THE "PLACEMENT AGENTS"), NONE OF WHICH SHALL
HAVE ANY OBLIGATION TO ACQUIRE SUCH NOTE, (ii) THROUGH A
PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR OR
HIGHLY SOPHISTICATED INDIVIDUAL INVESTOR OR A QIB BY A
PLACEMENT AGENT, OR (iii) TO A QIB IN A TRANSACTION THAT MEETS
THE REQUIREMENTS OF RULE 144A AND (B) IN MINIMUM AMOUNTS OF
$250,000.
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION
(a) The Issuer and the Guarantor, jointly and severally agree to
reimburse each Indemnitee for all expenses (including reasonable fees and
disbursements of internal and external counsel) as they are incurred by it in
connection with investigating or defending any loss, claim, damage, liability or
action in respect of which indemnification may be sought under Section 5 of the
Agreement (whether or not it is a party to any such proceedings).
(b) Promptly after receipt by an Indemnitee of notice of the existence
of a Claim, such Indemnitee will, if a claim in respect thereof is to be made
against the Issuer or the Guarantor, notify the Issuer and the Guarantor in
writing of the existence thereof; provided that (i) the omission so to notify
either or both the Issuer or the Guarantor will not relieve either of them from
any liability which it may have hereunder unless and except to the extent it did
not otherwise learn of such Claim and such failure results in the forfeiture by
each of them of substantial rights and defenses, and (ii) the omission so to
notify the Issuer or the Guarantor will not relieve it from liability which it
may have to an Indemnitee otherwise than on account of this indemnity agreement.
In case any such Claim is made against any Indemnitee and it notifies the Issuer
and the Guarantor of the existence thereof, the Issuer and the Guarantor will be
entitled to participate therein, and to the extent that either or both of them
may elect by written notice delivered to the Indemnitee, to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnitee; provided that
if the defendants in any such Claim include both the Indemnitee and the Issuer
or the Guarantor and the Indemnitee shall have concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Issuer or the Guarantor, neither the Issuer nor the Guarantor
shall have the right to direct the defense of such Claim on behalf of such
Indemnitee, and the Indemnitee shall have the right to select separate counsel
to assert such legal defenses on behalf of such Indemnitee. Upon receipt of
notice from the Issuer or the Guarantor to such Indemnitee of the election of
the Issuer or the Guarantor so to assume the defense of such Claim and approval
by the Indemnitee of counsel, the Issuer and the Guarantor will not be liable to
such Indemnitee for expenses incurred thereafter by the Indemnitee in connection
with the defense thereof (other than reasonable costs of investigation) unless
(i) the Indemnitee shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the Issuer and the Guarantor shall
not be liable for the expenses of more than one separate counsel (in addition to
any local counsel in the jurisdiction in which any Claim is brought), approved
by the Dealer, representing the Indemnitee who is party to such Claim), (ii) the
Issuer or the Guarantor shall not have employed counsel reasonably satisfactory
to the Indemnitee to represent the Indemnitee within a reasonable time after
notice of existence of the Claim or (iii) the Issuer or the Guarantor has
authorized in writing the employment of counsel for the Indemnitee. The
indemnity, reimbursement and contribution obligations of the Issuer and the
Guarantor hereunder shall be in addition to any other liability the Issuer and
the Guarantor may otherwise have to an Indemnitee and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Issuer, the Guarantor and any Indemnitee. Each of the
Issuer and the Guarantor agrees that without the Dealer's prior written consent,
it will not settle, compromise or consent to the entry of any judgment in any
Claim in respect of which indemnification may be sought under the
indemnification provision of the Agreement (whether or not the Dealer or any
other Indemnitee is an actual or potential party to such Claim), unless such
settlement, compromise or consent includes an unconditional release of each
Indemnitee from all liability arising out of such Claim.
