PLEDGE AGREEMENT
Exhibit 10(v)-8
THIS PLEDGE AGREEMENT (this “Pledge Agreement”), dated as of November 28, 2007, by and
among ENERGYSOUTH, INC., a Delaware corporation (the “Parent Borrower”), the subsidiaries
of the Parent Borrower signatory to this Pledge Agreement or to any amendment, supplement, joinder
agreement or other modification relating to this Pledge Agreement (in each case, a “Pledge
Supplement”) pursuant to which such subsidiary becomes a party hereto (each a “Subsidiary
Pledgor” and collectively, the “Subsidiary Pledgors”; the Parent Borrower and the
Subsidiary Pledgors shall be collectively known as the “Pledgors”, and individually as
“Pledgor”), in favor of REGIONS BANK, as Administrative Agent (in such capacity, the
“Administrative Agent”), for the benefit of the several banks and other financial
institutions and lenders (the “Lenders”) from time to time parties to the Amended and
Restated Credit Agreement dated as of November 28, 2007, among the Parent Borrower, Bay Gas Storage
Company, Ltd., an Alabama limited partnership (the “Subsidiary Borrower”), the
Administrative Agent, the Lenders, and Regions Bank, in its capacities as Administrative Agent,
Issuing Bank and Swingline Lender (as the same may hereafter be further amended, restated,
supplemented, refinanced or replaced from time to time, the “Credit Agreement”).
W I T N E S S E T H:
WHEREAS, certain of the Pledgors are the record and beneficial owners of all of the issued and
outstanding shares of capital stock of the Alabama corporations listed on Part A of
Schedule I attached hereto (the “Shares”), certain of the Subsidiary Pledgors are
the record and beneficial owners of all limited partnership interests of the Alabama limited
partnership listed on Part B of Schedule I attached hereto (the “Limited
Partnership Interests”), certain of the Subsidiary Pledgors are the record and beneficial
owners of all partnership interests of the Alabama general partnership listed on Part C of
Schedule I attached hereto (the “General Partnership Interests”), and certain of
the Pledgors are the record and beneficial owners of all of the issued and outstanding limited
liability company interests of the Delaware limited liability company listed on Part D of
Schedule I attached hereto (the “LLC Interests”);
WHEREAS, it is a condition to the Lenders’ obligations to make Loans to the Parent Borrower
and the Subsidiary Borrower, and to issue and continue in effect, for the account of the Parent
Borrower and the Subsidiary Borrower, Letters of Credit, all as more particularly provided in the
Credit Agreement, that the Pledgors guarantee payment of all Obligations of the Parent Borrower and
the Subsidiary Borrower as defined in the Credit Agreement, and pledge to the Administrative Agent,
for its benefit and for the benefit of the Lenders and the Issuing Bank, the respective ownership
interests held by such Pledgors in certain Subsidiaries of the Parent Borrower; and
WHEREAS, the Parent Borrower and the Subsidiary Pledgors have executed and delivered to the
Administrative Agent, the Parent Guarantee and the Subsidiary Guarantee, respectively, each dated
as of the date of this Pledge Agreement, and are delivering this Pledge Agreement, in order to
satisfy such condition and to induce the Administrative Agent, the
Lenders and the Issuing Bank to make the extensions of credit to the Parent Borrower and the
Subsidiary Borrower as provided in the Credit Agreement;
NOW, THEREFORE, in consideration of the credit facilities extended to the Parent Borrower and
Subsidiary Borrower by the Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used herein but not otherwise defined herein
shall have the meanings given to them in the Credit Agreement. References herein to this Pledge
Agreement shall be deemed to include each Pledge Supplement and any other amendment, restatement or
modification hereof.
2. Pledge. The Pledgors have pledged, and each Pledgor does hereby pledge, to the
Administrative Agent, for its benefit and the benefit of the Lenders and the Issuing Bank (the
Administrative Agent, the Lenders and the Issuing Bank are collectively referred to herein as the
“Secured Parties” and each a “Secured Party”) and have granted, and each Pledgor
does hereby grant, to the Administrative Agent, for the benefit of the Secured Parties, a first
priority security interest in the following property, whether now owned by or owing to, or
hereafter acquired by or arising in favor of, such Pledgor (collectively, the “Pledged
Collateral”):
(a) All authorized, issued and outstanding Shares, and the certificates representing such
Shares, and all dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
Shares, so that the Administrative Agent maintains at all times under this Pledge Agreement a
pledge of and security interest in one-hundred percent (100%), on a fully diluted basis, of all
shares of the authorized and issued and outstanding capital stock of the respective issuers of the
Shares shown in Part A of Schedule I;
(b) All Limited Partnership Interests, and any certificates representing such Limited
Partnership Interests, and all dividends, distributions, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Limited Partnership Interests, so that the Administrative Agent
maintains at all times under this Pledge Agreement a pledge of and security interest in not less
than ninety and nine-tenths percent (90.9%), on a fully diluted basis, of all partnership interests
in the general partnership shown in Part B of Schedule I;
(c) All General Partnership Interests, and any certificates representing such Partnership
Interests, and all dividends, distributions, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in exchange for any or
all of such Partnership Interests, so that the Administrative Agent maintains at all times under
this Pledge Agreement a pledge of and security interest in not less than fifty-one percent (51%),
on a fully diluted basis, of all partnership interests in the general partnership shown in Part
C of Schedule I;
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(d) All LLC Interests, and any certificates representing such LLC Interests, and all
dividends, distributions, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
LLC Interests, so that the Administrative Agent maintains at all times under this Pledge Agreement
a pledge of and security interest in not less than sixty percent (60%), on a fully diluted basis,
of all limited liability company interests of the limited liability company shown in Part D
of Schedule I;
(e) Any shares, general partnership interests, limited partnership interests, limited
liability company interests or other equity interests of the Subsidiaries listed on
Schedule I (collectively, the “Pledged Subsidiaries”) acquired by any Pledgor or
such Pledgor’s designees with respect to, in addition or incident to, or in lieu of, the Pledged
Collateral referred to in the foregoing clauses (a), (b), (c) and (d), whether (x) due to any
dividend, stock-split, stock dividend or distribution on dissolution, or partial or total
liquidation, or for any other reason, (y) in connection with a reduction of capital, capital
surplus or paid-in-surplus or (z) in connection with any spin-off, split-off, reclassification,
readjustment, merger, consolidation, sale of assets, combination of shares or any other plan of
distribution affecting the Pledged Subsidiaries;
(f) Any subscription or other rights or options issued in connection with the Pledged
Collateral referred to in the foregoing clauses (a), (b), (c), (d) and (e) and, if exercised by any
Pledgor, all new shares, general partnership interests, limited partnership interests, limited
liability company interests or other equity interests of the Pledged Subsidiaries so acquired by
such Pledgor, which shall promptly be assigned and delivered to the Administrative Agent and held
under the terms of this Pledge Agreement in the same manner as the Pledged Collateral originally
pledged hereunder;
(g) All shares, general partnership interests, limited partnership interests, limited
liability company interests, and other ownership interests in any direct or indirect Subsidiaries
of the Parent Borrower as more particularly described as being part of the Pledged Collateral (such
ownership interests, together with the Shares, the General Partnership Interests, the Limited
Partnership Interests, and the LLC Interests included in the Pledged Collateral, referred to
collectively as the “Pledged Interests”) in each Pledge Supplement executed and delivered
by the Parent Borrower and/or any direct or indirect Subsidiary or Subsidiaries of the Parent
Borrower, and all other property and related rights and interests as described in such Pledge
Supplement; and
(h) Any and all proceeds, monies, income and benefits arising from or by virtue of, and all
dividends and distributions (cash or otherwise) payable or distributable with respect to, all or
any of the Pledged Collateral or other securities and rights and interests described in this
Section 2, except as expressly provided for in Section 8 hereof.
3. Security For Secured Obligations. This Pledge Agreement and the Pledged Collateral
secure the prompt payment, in full when due, whether at stated maturity, by acceleration or
otherwise, and performance of (i) with respect to the Parent Borrower, all of the “Obligations” (as
defined in the Credit Agreement) and the “Guaranteed Obligations” (as defined in the Parent
Guarantee executed and delivered pursuant to the requirements of the Credit
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Agreement), (ii) with respect to the Subsidiary Pledgors, all of the “Parent Guaranteed
Obligations” and “Subsidiary Borrower Guaranteed Obligations” (as defined in the Subsidiary
Guarantee executed and delivered pursuant to the requirements of the Credit Agreement), and (iii)
all costs of collection, foreclosure, and enforcement (including reasonable attorneys’ fees),
expenses, reimbursement and indemnity payments, and other amounts incurred by or owing to the
Administrative Agent as provided in the Credit Agreement or in respect of this Pledge Agreement or
any actions taken hereunder (collectively, the “Secured Obligations”).
4. Delivery Of Pledged Collateral. All certificates and instruments representing or
evidencing any of the Pledged Collateral shall be delivered to and held by or on behalf of the
Administrative Agent pursuant hereto. All certificated Pledged Collateral shall be accompanied by
duly executed, undated instruments of transfer or assignment endorsed in blank, all in form and
substance satisfactory to the Administrative Agent and the Secured Parties and, if the
Administrative Agent or any Secured Party so requests, with signatures guaranteed by a member of a
registered national securities exchange or the National Association of Securities Dealers, Inc. or
by a commercial bank or trust company having an office or correspondent in the United States. Upon
the occurrence and during the continuance of an “Event of Default” (as defined in the Credit
Agreement), the Administrative Agent shall have the right, at any time in its discretion and
without notice to any Pledgor, to transfer to or to register in the name of the Administrative
Agent or any of its nominees any or all of the Pledged Collateral. In addition, the Administrative
Agent shall have the right at any time to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations.
5. Representations and Warranties. Each Pledgor represents and warrants to the
Administrative Agent and the other Secured Parties, as of the date of this Pledge Agreement and
each Pledge Supplement, as the case may be, as follows:
(a) Each Pledgor is, and at the time of delivery of any certificated Pledged Collateral to the
Administrative Agent pursuant to Section 4 hereof will be, the sole holder of record and
the sole beneficial owner of the Pledged Collateral pledged by such Pledgor, free and clear of any
pledge, security interest, assignment, share, levy or other lien or encumbrance thereon or
affecting the title thereto.
(b) All of the Pledged Interests have been duly authorized, validly issued and are fully paid
and non-assessable and all documentary, stamp, or other taxes or fees owing in connection with the
issuance, transfer and/or pledge thereof hereunder have been paid and will be hereafter paid by
each Pledgor as same becomes due and payable.
(c) No dispute, counterclaim or defense exists with respect to all or any part of the Pledged
Collateral.
(d) Each Pledgor has the requisite corporate other organizational authority to pledge, assign,
transfer, deliver, deposit and set over its Pledged Collateral to the Administrative Agent as
provided herein.
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(e) There are no restrictions, other than applicable laws and regulations affecting the
offering and sales of securities generally, upon the transfer, hypothecation or pledge of any of
the Pledged Collateral.
(f) None of the Pledged Interests have been issued or transferred in violation of the
securities registration, securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject.
(g) Part A of Schedule I hereto lists the authorized shares of common stock,
the par value thereof and the number of issued and outstanding shares of common stock of the issuer
of the Shares. As of the date hereof, (i) no subscription, warrant, option or other right to
purchase or acquire any shares of any class of capital stock of the issuer of the Shares is
authorized and outstanding, and (ii) there is no commitment by the issuer of the Shares to issue
any such shares, warrants, options or other such rights or securities.
(h) Part B of Schedule I hereto lists all of the issued and outstanding
limited partnership interests of the issuer of the Limited Partnership Interests. As of the date
hereof, (i) no subscription, warrant, option or other right to purchase or acquire any limited
partnership interests of the issuer of the Limited Partnership Interests is authorized and
outstanding, and (ii) there is no commitment by the issuer of the Limited Partnership Interests to
issue any such warrants, options or other such rights or securities.
(i) Part C of Schedule I hereto lists all of the issued and outstanding partnership
interests of the issuer of the General Partnership Interests. As of the date hereof, (i) no
subscription, warrant, option or other right to purchase or acquire any partnership interests of
the issuer of the Partnership Interests is authorized and outstanding, and (ii) there is no
commitment by the issuer of the General Partnership Interests to issue any such warrants, options
or other such rights or securities.
(j) Part D of Schedule I hereto lists all of the issued and outstanding limited
liability company interests of the issuer of the LLC Interests. As of the date hereof, (i) no
subscription, warrant, option or other right to purchase or acquire any liability company interests
of the issuer of the LLC Interests is authorized and outstanding, and (ii) there is no commitment
by the issuer of the LLC Interests to issue any such warrants, options or other such rights or
securities.
(k) Each Pledge Supplement lists all of the issued and outstanding ownership interests of the
types and classes for each direct or indirect Subsidiary of the Parent Borrower that are being
pledged pursuant to such Pledge Supplement. As of the date of such Pledge Supplement, (i) no
subscription, warrant, option or other right to purchase or acquire any such ownership interests is
authorized and outstanding, and (ii) there is no commitment by the issuer of such ownership
interests to issue any such warrants, options or other such rights or securities.
(l) The pledge by each Pledgor of its Pledged Collateral is not in contravention of any law or
of any agreement to which such Pledgor is party or by which such Pledgor is otherwise bound, and no
consent, approval, authorization or other order of, or other
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action by, any Person or notice to or filing with, any Person is required (x) for the pledge
by such Pledgor of the Pledged Collateral pursuant to this Pledge Agreement or for the execution,
delivery or performance of this Pledge Agreement by such Pledgor or (y) for the exercise by the
Administrative Agent of the voting or other rights provided for in this Pledge Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Pledge Agreement (except as may be
required in connection with any disposition of any portion of the Pledged Collateral by laws
affecting the offering and sale of securities generally).
(m) The pledge, assignment and delivery of the Pledged Collateral together with duly executed,
undated instruments of transfer or assignment endorsed in blank pursuant to this Pledge Agreement
will create a valid first priority Lien on and a first priority perfected security interest in the
Pledged Collateral and the proceeds thereof, securing the payment of the Secured Obligations and no
filing or other action is necessary to perfect or protect such security interest, except that (i)
the filing of a financing statement, the taking of possession or some other action may be required
under the Uniform Commercial Code as in effect in the State of organization of the applicable
Pledgor (as in effect in the applicable jurisdiction, the “UCC”) to perfect a security
interest in certain proceeds of the Pledged Collateral that do not constitute certificated
securities or instruments, and (ii) the filing of a financing statement under the UCC may be
required to perfect a security interest in any Pledged Collateral that constitutes “investment
property” (other than certificated securities) with respect to which the Administrative Agent does
not have “control” (as such terms are defined in the UCC).
(n) This Pledge Agreement has been duly authorized, executed and delivered by each Pledgor and
constitutes a legal, valid and binding obligation of such Pledgor enforceable against such Pledgor
in accordance with its terms.
The representations and warranties set forth in this Section 5 shall survive the
execution and delivery of this Pledge Agreement.
6. Covenants. Each Pledgor covenants and agrees that from and after the date of this
Pledge Agreement and until the payment and performance in full of all of the Secured Obligations of
such Pledgor:
(a) Such Pledgor shall not sell, assign, transfer, pledge or otherwise encumber any of its
rights in or to its Pledged Collateral or any unpaid dividends or other distributions or payments
with respect thereto except pursuant to this Pledge Agreement.
(b) Such Pledgor will not cause or permit any issuer of any Pledged Interests to issue or
grant any warrants, stock options of any nature or other instruments convertible into such
ownership interests or sell or transfer any such ownership interests owned or held by it.
(c) Such Pledgor will, at its own cost and expense, promptly execute, acknowledge and deliver
all such instruments and take all such action as the Administrative Agent from time to time may
request in order to perfect and protect the pledge and security interest granted or purported to be
granted hereby or to enable the Administrative Agent to exercise and enforce its rights and
remedies hereunder with respect to the Pledged Collateral.
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(d) Such Pledgor has and will, at its own cost and expense, defend the title to its Pledged
Collateral and the pledge and security interest of the Administrative Agent thereon against the
claim of any Person and will maintain and preserve such pledge and security interest.
(e) Such Pledgor will pay all taxes, assessments and charges levied, assessed or imposed upon
its Pledged Collateral before the same become delinquent or become liens, assessments, levies or
charges upon any of its Pledged Collateral except where the same may be contested in good faith by
appropriate proceedings and as to which adequate reserves have been provided.
7. Adjustments and Distributions Concerning Pledged Collateral. Should the Pledged
Collateral, or any part thereof, ever be converted in any manner by any Pledgor into another type
of property or any money or other proceeds ever be paid or delivered to any Pledgor as a result of
such Pledgor’s rights in the Pledged Collateral, then in any such event (except as expressly
provided in Section 8 hereof), all such property, money and other proceeds shall promptly
be and become part of the Pledged Collateral, and each Pledgor covenants and agrees to forthwith
pay and deliver all money so received to the Administrative Agent, for the benefit of the Secured
Parties, as Pledged Collateral hereunder; and, if the Administrative Agent deems it necessary and
so requests, to properly endorse, assign or transfer any and all such other proceeds to the
Administrative Agent and to deliver to the Administrative Agent any and all such other proceeds
which require perfection by possession under the UCC. With respect to any of such property of a
kind requiring an additional security agreement, financing statement or other writing to perfect a
security interest therein in favor of the Administrative Agent, each Pledgor will forthwith execute
and deliver to the Administrative Agent, or cause to be executed and delivered to the
Administrative Agent, whatever the Administrative Agent shall deem necessary or proper for such
purposes.
8. Pledgors’ Rights; Termination Of Rights.
(a) As long as no Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall have the right, from time to time, to vote and give consents
with respect to its Pledged Collateral or any part thereof for all purposes not
inconsistent with the provisions of the Credit Agreement; provided, that, without
limitation of the foregoing, no vote shall be cast, and no consent shall be given or action
taken, by any Pledgor without the prior written consent of the Administrative Agent that
would authorize or effect: (A) the dissolution or liquidation, in whole or in part, of any
issuer of the Pledged Collateral, (B) the consolidation or merger of any issuer of the
Pledged Collateral with any other Person (other than any Pledgor), (C) the sale or other
disposition outside the ordinary course of business of any material portion of the assets of
any issuer of the Pledged Collateral or any business or division thereof, (D) any change in
the authorized number of shares or partnership interests, the stated capital or the
authorized shares or partner interest capital of either issuer of the Pledged Collateral or
the issuance of any additional shares of capital stock or partnership interests thereof, or
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(E) the alteration of the voting rights with respect to the capital stock or
partnership interests of either issuer of the Pledged Collateral; and
(ii) Each Pledgor shall be entitled, from time to time, to collect and receive for its
own use all dividends, distributions and other amounts paid in respect of its Pledged
Collateral to the extent not inconsistent with the provisions of the Credit Agreement, other
than any and all: (A) dividends or other distributions paid or payable other than in cash
in respect of, and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any of its Pledged Collateral, (B) dividends
and other distributions paid or payable in cash in respect of any of its Pledged Collateral
in connection with a partial or total liquidation, dissolution or a reduction in capital,
capital surplus or paid in capital, and (C) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any of its Pledged Collateral; provided, that
until actually paid all rights to such dividends or distributions shall remain subject to
the pledge and security interest created by this Pledge Agreement.
(b) All dividends (other than such cash dividends as are permitted to be paid to the Pledgors
in accordance with Section 8(a)(ii) above) and all other distributions in respect of any of
the Pledged Collateral, whenever paid or made, shall be delivered to the Administrative Agent to
hold as Pledged Collateral and shall, if received by any Pledgor, be received in trust for the
benefit of the Administrative Agent, be segregated from the other property or funds of such
Pledgor, and be forthwith delivered promptly to the Administrative Agent as Pledged Collateral of
such Pledgor in the same form as so received (with any necessary endorsement or assignment).
(c) Upon the occurrence of an Event of Default and during the continuation thereof, all of
Pledgors’ rights to exercise voting and other consensual rights pursuant to Section 8(a)(i)
hereof and all of Pledgors’ rights to receive any cash dividends and distributions pursuant to
Section 8(a)(ii) hereof shall cease and all such rights shall thereupon become vested in
the Administrative Agent, for the benefit of the Secured Parties, who shall have the sole and
exclusive right to exercise the voting and other consensual rights which the Pledgors would
otherwise be authorized to exercise pursuant to Section 8(a)(i) hereof and to receive and
retain the dividends and distributions which the Pledgors would otherwise be authorized to receive
and retain pursuant to Section 8(a)(ii) hereof. Upon the occurrence of an Event of Default
and during the continuation thereof, each Pledgor shall pay over to the Administrative Agent, for
the benefit of the Secured Parties, any dividends received by such Pledgor with respect to its
Pledged Collateral and any and all money and other property paid over to or received by the
Administrative Agent shall be retained by the Administrative Agent, for the benefit of the Secured
Parties, as Pledged Collateral hereunder.
9. Default. The Pledgors shall be in default under this Pledge Agreement upon the
happening of any of the following events or conditions (hereinafter referred to as an “Event of
Default”):
(i) The occurrence of an “Event of Default” as defined in the Credit Agreement;
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(ii) The filing of any financing statement with regard to the Pledged Collateral, or the
attachment of any additional pledge, security interest, lien, levy, attachment or other encumbrance
on any portion of the Pledged Collateral, for the benefit of any Person other than the
Administrative Agent, and the failure of the Pledgors to cause such encumbrance to be satisfied,
terminated or otherwise removed of record within 10 Business Days after notice thereof shall have
been given to Pledgors by the Administrative Agent;
(iii) Any of the representatives and warranties set forth in this Pledge Agreement shall prove
to be incorrect in any material respect; or
(iv) The failure of any Pledgor to observe any of its respective covenants set forth in this
Pledge Agreement and the continuation of such failure for 30 days after notice thereof shall have
been given to such Pledgor by the Administrative Agent.
10. Remedies Upon An Event Of Default.
(a) Upon the occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent may exercise all rights of a secured party under the UCC (whether or not the
UCC applies to the affected collateral). In addition, the Administrative Agent is hereby
authorized and empowered to transfer and register in its name or in the name of its nominee the
whole or any part of the Pledged Collateral, exercise the voting rights with respect thereto,
collect and receive all cash dividends and other distributions made thereon, sell in one or more
sales after ten (10) days’ notice of the time and place of any public sale or of the time after
which a private sale is to take place (which notice each Pledgor agrees is commercially
reasonable), but without any previous notice or advertisement, the whole or any part of the Pledged
Collateral and otherwise act with respect to the Pledged Collateral as though the Administrative
Agent was the legal and record owner thereof. Each Pledgor hereby irrevocably constitutes and
appoints the Administrative Agent, for the benefit of the Secured Parties, as the proxy and
attorney-in-fact of such Pledgor with respect to the Pledged Collateral, with full power of
substitution to exercise any of the rights provided in the preceding sentence; provided,
that the Administrative Agent shall not have any duty to exercise any such right or to preserve the
same and shall not be liable for any failure to do so or for any delay in doing so. Any sale shall
be made at a public or private sale at the Administrative Agent’s offices or elsewhere to be named
in the notice of sale, either for cash or upon credit or for future delivery at such price as the
Administrative Agent may deem reasonable, and any Secured Party may be the purchaser at any public
sale of the whole or any part of the Pledged Collateral so sold and hold the same thereafter in its
own right free from any claim of any Pledgor or any right of redemption, which each Pledgor hereby
waives to the extent permitted by applicable law. Each sale shall be made to the highest bidder,
but the Administrative Agent reserves the right to reject any and all bids at such sale which, in
its discretion, it shall deem inadequate. Demands of performance, except as otherwise herein
specifically provided for, notices of sale, advertisements and the presence of property at sale are
hereby waived and any sale hereunder may be conducted by an auctioneer or any officer or agent of
the Administrative Agent.
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(b) If, at the original time or times appointed for the sale of the whole or any part of the
Pledged Collateral, the highest bid, if there be but one sale, shall be inadequate to discharge in
full all the Secured Obligations, or if the Pledged Collateral be offered for sale in lots, if at
any of such sales, the highest bid for the lot offered for sale would indicate to the
Administrative Agent, in its discretion, the unlikelihood of the proceeds of the sales of the whole
of the Pledged Collateral being sufficient to discharge all the Secured Obligations, the
Administrative Agent may, on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of previous postponement of sale, and
no other notice of such postponement or postponements of sale need be given, any other notice being
hereby waived; provided, that any sale or sales made after such postponement shall be after
not less than five (5) days’ notice from the Administrative Agent to any such Pledgor.
(c) If, at any time that the Administrative Agent shall determine to exercise its rights to
sell the whole or any part of the Pledged Collateral hereunder, such Pledged Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively registered under applicable
securities laws and regulations (the “Securities Laws”), the Administrative Agent may, in
its discretion (subject only to applicable requirements of law), sell such Pledged Collateral or
part thereof by private sale in such manner and under such circumstances as the Administrative
Agent may deem necessary or advisable, but subject to the other requirements of this Section
10, and shall not be required to effect such registration or to cause the same to be effected.
Without limiting the generality of the foregoing, in any such event the Administrative Agent in its
discretion (i) may, in accordance with the Securities Laws, proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering such Pledged
Collateral or part thereof could be or shall have been filed under said Securities Laws, (ii) may
approach and negotiate with a single possible purchaser to effect such sale, (iii) may restrict
such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own
account, for investment and not with a view to the distribution or sale of such Pledged Collateral
or part thereof, and (iv) may place all or any part of the Pledged Collateral with an investment
banking firm for private placement, which firm shall be entitled to purchase all or any part of the
Pledged Collateral for its own account. If any of the Pledged Collateral shall not be freely
distributable to the public without registration under the Securities Laws, then the Administrative
Agent shall not be required to effect such registration or cause the same to be effected but, in
its discretion (subject to applicable requirements of law), may require that any sale hereunder
(including a sale at auction) be conducted subject to restrictions (i) as to the financial
sophistication and ability of any Person permitted to bid or purchase at any such sale, (ii) as to
the content of legends to be placed upon any certificates representing the Pledged Collateral sold
in such sale, including restrictions on future transfer thereof, (iii) as to the representations
required to be made by each Person bidding or purchasing at such sale relating to that Person’s
access to financial information about any issuer of the Pledged Collateral so sold and such
Person’s intentions as to the holding of the Pledged Collateral so sold for investment, for its own
account, and not with a view to the distribution thereof, and (iv) as to such other matters as the
Administrative Agent may, in its discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance with the UCC and other
laws affecting the enforcement of creditors’ rights and all applicable Securities Laws.
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(d) Each Pledgor acknowledges that, notwithstanding the legal availability of a private sale
or a sale subject to the restrictions described above in paragraph (c), the Administrative Agent
may, in its discretion, elect to register any or all the Pledged Collateral under the Securities
Laws. Each Pledgor, however, recognizes that the Administrative Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled to resort to one or more
private sales thereof. Each Pledgor also acknowledges that any such private sale may result in
prices and other terms less favorable to the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner. The Administrative Agent shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time necessary to permit the
registrant to register such securities for public sale under the Securities Laws, even if each
Pledgor would agree to do so.
(e) Following the occurrence and during the continuation of an Event of Default any cash held
by the Administrative Agent as Pledged Collateral and all cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other realization upon all or
any part of the Pledged Collateral may, in the discretion of the Administrative Agent, be held by
the Administrative Agent as collateral for, and/or then or at any time thereafter be applied (after
payment of any amounts payable to the Administrative Agent pursuant to Section 13 hereof)
in whole or in part by the Administrative Agent for the benefit of the Secured Parties. Any
surplus of such cash or cash proceeds held by the Administrative Agent and remaining after payment
in full of all the Secured Obligations shall be paid over to the Pledgors or to whomsoever may be
lawfully entitled to receive such surplus.
(f) Each Pledgor agrees that following the occurrence and during the continuation of an Event
of Default it will not at any time plead, claim or take the benefit of any appraisal, valuation,
stay, extension, moratorium or redemption law now or hereafter in force in order to prevent or
delay the enforcement of this Pledge Agreement, or the absolute sale of the whole or any part of
the Pledged Collateral or the possession thereof by any purchaser at any sale hereunder, and each
Pledgor waives the benefit of all such laws to the extent it lawfully may do so. Each Pledgor
agrees that it will not interfere with any right, power and remedy of the Administrative Agent
provided for in this Pledge Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the Administrative Agent of
any one or more of such rights, powers, or remedies. No failure or delay on the part of the
Administrative Agent to exercise any such right, power or remedy and no notice or demand which may
be given to or made upon any Pledgor by the Administrative Agent with respect to any such remedies
shall operate as a waiver thereof, or limit or impair the Administrative Agent’s right to take any
action or to exercise any power or remedy hereunder, without notice or demand, or prejudice its
rights as against any Pledgor in any respect. Each Pledgor waives all claims, damages and demands
against the Administrative Agent arising out of the repossession, retention or sale of the Pledged
Collateral.
11. Power Of Attorney. Each Pledgor appoints the Administrative Agent, or any other
Person whom the Administrative Agent may designate, as each Pledgor’s true and lawful
attorney-in-fact, with, upon the occurrence of an Event of Default, power to endorse each
Pledgor’s name on any checks, notes, acceptances, money orders, drafts or other form of
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payment or security representing a portion of the Pledged Collateral that may come into the
Administrative Agent’s possession and to do all things necessary to carry out the terms of this
Pledge Agreement. Each Pledgor ratifies and approves all such acts of such attorney-in-fact.
Neither the Administrative Agent nor any other Person designated by the Administrative Agent as
attorney-in-fact hereunder will be liable for any acts or omissions, nor for any errors of judgment
or mistakes of fact or law. This power, coupled with an interest, is irrevocable until the payment
in full of all Secured Obligations of each Pledgor.
12. Administrative Agent’s Right To Take Action. In the event that any Pledgor fails
or refuses promptly after demand to perform any of its obligations set forth herein, including,
without limitation, its obligation pursuant to Section 6(e) hereof to pay taxes,
assessments and other charges levied, assessed or imposed on the Pledged Collateral, or otherwise
fails or refuses after demand to pay any amount necessary for the preservation and protection of
the Pledged Collateral, the Administrative Agent shall have the right, without obligation, to do
all things reasonably necessary or advisable to discharge the same (including, without limitation,
to pay any such taxes, assessments, charges or other sums, together with interest and penalties
thereon) and any sums paid by the Administrative Agent, or the cost thereof, including, without
limitation, attorneys’ fees, shall be reimbursed by the Pledgors, to the Administrative Agent on
demand and, until so reimbursed, shall bear interest at the rate for “Default Interest” chargeable
under the Credit Agreement.
13. Expenses. The Pledgors shall, jointly and severally, pay all reasonable costs,
expenses, taxes and fees (i) incurred by the Administrative Agent in connection with the
negotiation, preparation, execution and delivery of this Pledge Agreement and all certificates,
opinions and other documents relating to these transactions, including, without limitation, the
disbursements and professional fees of counsel to the Administrative Agent, in all cases whether or
not the transactions contemplated hereby shall be consummated; (ii) incurred by the Administrative
Agent in connection with the perfection, registration, maintenance, administration, custody and
preservation of the Pledged Collateral, including, without limitation, with respect to any and all
stamp, intangible or other taxes that may be payable or determined in the future to be payable in
connection with this Pledge Agreement and all other documents executed or delivered in connection
herewith, and relating to releases and consents; and (iii) incurred by any of the Secured Parties
in connection with or after the occurrence of any Event of Default, including, without limitation,
in connection with (a) the negotiation, preparation, execution and delivery of any waiver,
amendment or consent by the Secured Parties, (b) the negotiation of any restructuring or workout
transaction, and the preparation, execution and delivery of any documents prepared in connection
therewith, and (c) enforcement or foreclosure with respect to this Pledge Agreement, and in all
such cases such costs, expenses, taxes and fees shall include, without limitation, the
disbursements and reasonable professional fees actually incurred of counsel to any Secured Party.
To the extent that any such fees and expenses are subject to value added taxes, such taxes will be
paid by the Pledgors. To the extent reimbursement is sought pursuant to this Section 13 or
any other document executed pursuant hereto, the Secured Parties shall submit to the Pledgors a
statement of expenses to be paid by the Pledgors. Such expenses shall be due and payable within
five (5) days of the date of the original statement to the extent that such Secured Party is
entitled to such reimbursement.
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14. Indemnity. The Pledgors, jointly and severally, will indemnify and hold harmless
each of the Secured Parties and each of their respective employees, representatives, counsel,
officers and directors from and against any and all claims, liabilities, investigations, losses,
damages, actions, and demands (collectively, “claims”) by any party against the Secured Parties or
any of them resulting from any breach or alleged breach by any Pledgor of any representation or
warranty made hereunder, or otherwise arising out of this Pledge Agreement, except (i) to the
extent such claims arise out of any violation or alleged violation of any Securities Laws by any
Secured Party for actions taken or failed to be taken by such Secured Party in connection with the
registration, attempted registration, offer, sale or other disposition of the Pledged Collateral
pursuant to Section 10 hereof, and (ii) as to any Secured Party to the extent such Secured Party is
finally judicially determined to have acted or failed to act with gross negligence or willful
misconduct. This Section 14 shall survive termination of this Pledge Agreement.
15. Limitation On the Administrative Agent’s Duty In Respect Of Pledged Collateral.
The Administrative Agent shall use reasonable care with respect to the Pledged Collateral in its
possession or under its control. The powers conferred on the Administrative Agent hereunder are
solely to protect its interest in the Pledged Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, the Administrative Agent shall
have no duty as to any Pledged Collateral or any income thereon, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Collateral, whether or not the Administrative Agent, or any other Secured Party has
or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any Pledged Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Pledged Collateral in its possession if such Pledged Collateral is accorded
treatment substantially equal to that which the Administrative Agent accords its own property.
16. Security Interest Absolute. All rights of the Administrative Agent and security
interests hereunder, and all obligations of each Pledgor hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Secured Obligations;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any
of the Secured Obligations, or any other amendment or waiver of or any consent to any departure
from the Credit Agreement, including, without limitation, any increase in the Secured Obligations
resulting from the extension of additional credit to any Pledgor or any of its subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any other collateral, or any taking,
release or amendment or waiver of or consent to departure from any guaranty, for all or any of the
Secured Obligations;
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(d) any manner of application of collateral, or proceeds thereof, to all or any of the Secured
Obligations, or any manner of sale or other disposition of any collateral for all or any part of
the Secured Obligations or any other assets of any Pledgor or any of its Subsidiaries;
(e) any change, restructuring or termination of the organizational structure or existence of
any Pledgor or any of its Subsidiaries; or
(f) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, any Pledgor or a third party pledgor.
17. Reinstatement. This Pledge Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against any Pledgor for liquidation or
reorganization, should any Pledgor become insolvent or make an assignment for the benefit of any
creditor or creditors or should a receiver or trustee be appointed for all or any significant part
of any Pledgor’s assets, and shall continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Secured Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent
conveyance,” “fraudulent transfer” or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid
and not so rescinded, reduced, restored or returned.
18. Successors And Assigns. This Pledge Agreement and all obligations of each Pledgor
hereunder shall be binding upon the successors and assigns of such Pledgor (including any
debtor-in-possession on behalf of such Pledgor) and shall, together with the rights and remedies of
the Administrative Agent, for the benefit of the Secured Parties, hereunder, inure to the benefit
of the Administrative Agent, the Secured Parties, all future holders of any instrument evidencing
any of the Secured Obligations and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any agreement
governing or instrument evidencing the Secured Obligations or any portion thereof or interest
therein shall in any manner affect the pledge and security interest granted to the Administrative
Agent, for the benefit of the Secured Parties, hereunder. No Pledgor may assign, sell, hypothecate
or otherwise transfer any interest in or obligation under this Pledge Agreement.
19. Waivers; Amendment.
(a) No failure or delay by the Administrative Agent of any kind in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent hereunder are cumulative and are not exclusive
of any rights or remedies that it or the Secured Parties would otherwise have. No waiver of any
provision of this Pledge Agreement or consent to any departure by any Pledgor therefrom shall in
any event be effective unless the same shall be permitted by subsection (b) below, and then such
waiver and consent shall be effective only in the specific
14
instance and for the purpose for which given. No notice or demand on any Pledgor in any case
shall entitle such Pledgor to any other or further notice in similar or other circumstances.
(b) Neither this Pledge Agreement nor any provision hereof may be waived, amended or modified
except pursuant to a written agreement entered into between the Pledgors with respect to which such
waiver, amendment or modification relates and the Administrative Agent.
20. Severability. Any provision of this Pledge Agreement held to be illegal, invalid
or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such illegality, invalidity or unenforceability without affecting the legality, validity or
enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
21. Notices. All notices, requests and other communications to the Pledgors or
Administrative Agent hereunder shall be delivered in the manner required by the Credit Agreement
and shall be sufficiently given to any Pledgor if addressed or delivered in care of the Parent
Borrower at its address and telecopier number specified in the Credit Agreement. All such notices
and communications shall be deemed to have been duly given at the times set forth in the Credit
Agreement.
22. Counterparts; Integration. This Pledge Agreement may be executed by one or more
of the parties to this Pledge Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Pledge Agreement constitutes the entire agreement among the parties hereto
regarding the subject matters hereof and supersedes all prior agreements and understandings, oral
or written, regarding such subject matter.
23. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Pledge Agreement shall be construed in accordance with and be governed by the law
(without giving effect to the conflict of law principles thereof) of the State of Georgia.
(b) Each Pledgor hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of the United States courts located within the Northern District
in the State of Georgia, and of any state court of the State of Georgia located in Atlanta, Georgia
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Pledge Agreement or the transactions contemplated hereby, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such Georgia
state court or, to the extent permitted by applicable law, such Federal court. Each Pledgor agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Pledge Agreement shall affect any right that the
15
Administrative Agent may otherwise have to bring any action or proceeding relating to this
Pledge Agreement against any Pledgor or its properties in the courts of any jurisdiction.
(c) Each Pledgor irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in paragraph (b) of this Section. Each
party hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each Pledgor irrevocably consents to the service of process in the manner provided for
notices in the Credit Agreement. Nothing in this Pledge Agreement will affect the right of the
Administrative Agent to serve process in any other manner permitted by law.
24. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF THIS PLEDGE AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
PLEDGE AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
25. Benefit of Secured Parties. All pledges and security interests granted or
contemplated hereby shall be for the benefit of the Secured Parties, and all proceeds or payments
realized from Pledged Collateral in accordance herewith shall be applied to the Secured Obligations
in accordance with terms of the Credit Agreement.
26. Termination of this Pledge Agreement. No termination or cancellation (regardless
of cause or procedure) of the Credit Agreement shall in any way affect or impair the powers,
obligations, duties, rights and liabilities of the parties hereto in any way with respect to (i)
any transaction or event occurring prior to such termination or cancellation, (ii) the Pledged
Collateral, or (iii) any Pledgor’s undertakings, agreements, covenants, warranties and
representations contained in this Pledge Agreement and all such undertakings, agreements,
covenants, warranties and representations shall survive such termination or cancellation until the
payment and performance, in full, of all Secured Obligations of the Pledgors and the termination of
all commitments to lend or issue letters of credit under the Credit Agreement. Subject to
Section 17 hereof, this Pledge Agreement and the security interests granted hereunder shall
terminate when (i) all of the Secured Obligations have been paid in full in cash, (ii) the Lenders
have no further commitment to lend under the Credit Agreement, and (iii) the “LC Exposure” under
the Credit Agreement has been reduced to zero and the Issuing Bank under the Credit Agreement has
no further obligation to issue Letters of Credit under the Credit Agreement.
16
Upon such termination, the Administrative Agent shall return all Pledged Collateral in its
possession to the respective Pledgors and will, at the sole cost and expense of the Pledgors,
execute such documents, without recourse or warranty, as Pledgors deem reasonably necessary to
release any interests held by the Administrative Agent in the Pledged Collateral.
27. Approvals, Consents and Waivers with Respect to Pledge. Each of the Subsidiary
Pledgors confirms that (x) the creation of the Lien on, and the security interest in, the portion
of the Pledged Collateral being pledged by it, and (y) any subsequent transfers or assignments
thereof in connection with the exercise of the rights and remedies granted to the Administrative
Agent and the Secured Parties pursuant to Section 10, do not require any approvals or
consents, or any waivers of any restrictions or limitations, applicable to such actions, except
such approvals, consents and waivers that have been granted and are in full force and effect, and
copies of which approvals, consents and waivers have been delivered to the Administrative Agent.
28. Pledge Supplements. Each Pledge Supplement executed and delivered with respect to
this Pledge Agreement shall become and be a part of this Pledge Agreement with the same force and
effect as though originally included as part of this Pledge Agreement, and shall be subject to all
terms and conditions hereof. No amendment, consent, approval or other action by any of the other
Pledgors shall be required under this Pledge Agreement in order for such Pledge Supplement to
become effective as provided herein.
[Signature Pages Follow]
17
IN WITNESS WHEREOF, each Pledgor has caused this Pledge Agreement to be executed and delivered
by its duly authorized officer as of the date first set forth above.
| ENERGYSOUTH, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Executive Vice President and | |||||
| Chief Financial Officer | ||||||
| ENERGYSOUTH MIDSTREAM, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Executive Vice President and | |||||
| Chief Financial Officer | ||||||
| ENERGYSOUTH SERVICES, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Executive Vice President and | |||||
| Chief Financial Officer | ||||||
| MGS MARKETING SERVICES, INC. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxxx
|
|||||
| Title: | Executive Vice President and | |||||
| Chief Financial Officer | ||||||
[SIGNATURE
PAGE TO PLEDGE AGREEMENT]
| Acknowledged and Agreed to: | ||||
| REGIONS BANK, | ||||
| as Administrative Agent | ||||
By: Name: |
/s/ Xxxxxx Xxxxxxx
|
|||
Title:
|
Vice President | |||
