EXHIBIT 4.9
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
_____________, 2001, between AGL RESOURCES, INC., a Georgia corporation (the
"Guarantor"), AGL CAPITAL CORPORATION, a Nevada corporation (the "Company") and
AGL CAPITAL TRUST II, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Debentures from, the Company and to issue and sell
____% Trust Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement dated [________], 2001, as the same may be amended
from time to time (the "Trust Agreement");
WHEREAS, the Company shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Guarantor and the Company hereby agree
shall benefit the Guarantor and the Company and which purchase the Guarantor and
the Company acknowledge shall be made in reliance upon the execution and
delivery of this Agreement, the Guarantor, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
Section 1.1 Guarantee by the Guarantor. Subject to the terms and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Trust other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.2 Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise); and
(b) the date on which there are no Beneficiaries remaining; provided, however,
that this Agreement shall continue to be effective or shall be reinstated, as
the case may be, if at any time any holder of Preferred Securities or any
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Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any obligation, under the Trust Preferred Securities Guarantee
Agreement dated the date hereof between the Guarantor and The Bank of New York,
as guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.3 Waiver of Notice. The Guarantor and the Company hereby waive
notice of acceptance of this Agreement and of any obligation to which it applies
or may apply, and the Guarantor and the Company hereby waive presentment, demand
for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 1.4 No Impairment. The obligations, covenants, agreements and
duties of the Guarantor and the Company under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all or any
portion of the obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.5 Enforcement. A Beneficiary may enforce this Agreement
directly against the Guarantor and the Company, and the Company waives any right
or remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against the Guarantor and the Company.
ARTICLE II
Section 2.1 Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and the Company and shall inure to the benefit
of the Beneficiaries.
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Section 2.2 Amendment. So long as there remains any Beneficiary or any
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Preferred Securities.
Section 2.3 Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same by facsimile transmission (confirmed by mail), telex, or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer back, if sent by telex):
AGL RESOURCES INC.
000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
AGL CAPITAL CORPORATION
0000-X Xxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxxx
AGL CAPITAL TRUST II
0000-X Xxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Section 2.4 Governing Law. This agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Georgia
(without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
AGL RESOURCES, INC.
By: ___________________________________
Xxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Financial
Officer
AGL CAPITAL CORPORATION
By: ___________________________________
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Xxxx X. Xxxxxxx, President
AGL CAPITAL TRUST II
By: ___________________________________
Xxxx X. Xxxxxxx, Administrative Trustee
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