Bay Gas Storage Co., Ltd. EnergySouth, Inc. First Supplemental Indenture Dated as of August 1, 2007 to Trust Indenture and Security Agreement Dated as of December 1, 2000 Series 8.45% Senior Secured Notes
Exhibit 4(c)-4
Execution Version
Bay Gas Storage Co., Ltd.
EnergySouth, Inc.
First Supplemental Indenture
Dated as of August 1, 2007
Dated as of August 1, 2007
to
Trust Indenture and Security Agreement
Dated as of December 1, 2000
Dated as of December 1, 2000
Series 8.45% Senior Secured Notes
First Supplemental Indenture
This First Supplemental Indenture dated as of August 1, 2007 (the or this
“Amendment”) to the Trust Indenture and Security Agreement referred to below is among Bay Gas
Storage Company, Ltd., an Alabama limited partnership (the “Company”), Regions Bank,
an Alabama banking corporation, as trustee (the “Trustee”), and each of the institutions which is a
signatory to this Supplemental Indenture (collectively, the “Noteholders”).
R
e c i t a l s :
A. The Company and the Trustee have heretofore entered into the Trust Indenture and Security
Agreement dated as of December 1, 2000 (the “Indenture”) pursuant to which the Company issued its
Series 8.45% Senior Secured Notes due December 1, 2017 (the “Notes”).
B. The Company, the Noteholders and the Trustee now desire to amend certain provisions of the
Indenture as of August 1, 2007 (the “Effective Date”) in the respects, but only in the respects,
hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings ascribed thereto in the
Indenture unless herein defined or the context shall otherwise require.
Now, therefore, upon the full and complete satisfaction of the conditions precedent
to the effectiveness of this Supplemental Indenture set forth in Section 3 hereof, and for good and
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company,
the Noteholders and the Trustee do hereby agree as follows:
Section 1. Amendments to Indenture.
Section 1.1. The following definitions in Article One of the Indenture shall be and are hereby
amended to read as follows:
“Additional Cavities” shall mean Cavities in addition to the First Cavity and the
Second Cavity which may be developed for the storage of natural gas pursuant to the
Development Agreement or otherwise.
“Assignment Consent” shall mean with respect to any Collateral Agreement a written
instrument signed by the party to such Collateral Agreement consenting to the assignment by
the Company of its right, title and interest therein to the Trustee to the effect that:
(i) such party acknowledges that the Company has granted a security interest in
and assigned, as a collateral assignment, all its right, title and interest in, to
and under the Collateral Agreement to the Trustee for the benefit of the
| Bay Gas Storage Company, Ltd. | First Supplemental Indenture |
holders of the Notes issued pursuant to this Indenture and consents to such grant
and assignment;
(ii) such party further acknowledges that upon the occurrence of an Event of
Default under the Indenture, the Trustee may elect by written notice delivered to
such party to require that any and all permitted payments from time to time by such
party to the Company under the Collateral Agreement be paid to an account as
directed by the Trustee, that the Indenture provides that the Trustee, as secured
party, shall have the right, upon the occurrence of an Event of Default under the
Indenture, to collect amounts payable under the Collateral Agreement and to take
actions to enforce collection of payments thereunder as fully as could the Company,
and that the Indenture restricts waivers, modifications or amendments by the Company
with respect to the Collateral Agreement, as well as any subsequent assignment by
the Company of any sums payable thereto or rights thereof under the Collateral
Agreement to any party other than the Trustee without the prior written consent of
the Trustee so long as any Notes remain outstanding thereunder; and
(iii) such party acknowledges and agrees that such Assignment Consent shall
apply to each contract for gas storage service and/or transportation service entered
into by such party with the Company from time to time.
Such instrument shall also include customary provisions to provide for successors to be
bound, counterpart execution, applicable law, modifications to be made only in writing,
addresses for notices, and other such provisions as may be reasonably agreed by the Company
and such party.
“Collateral Agreements” shall mean and include (a) the Gas Storage Agreement dated
February 26, 1992, between Mobile Gas Service Corporation and the Company, (b) the Storage
Service Agreement dated as of August 1, 2000, between the Company and Southern Company
Services, Inc., as agent for Alabama Power Company, Georgia Power Company, Gulf Power
Company, Mississippi Power Company and Savannah Electric & Power Company, (c) the
Transportation Agreement dated April 8, 1999 between Alabama Power Company and the Company,
as amended by a letter dated July 19, 2000, (d) the Firm and Interruptible Storage Service
Agreement dated as of April 1, 1999 between the Company and Southern Company Services, Inc.,
as agent for Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi
Power Company and Savannah Electric and Power Company, as amended by a letter dated July 19,
2000, (e) the Firm Intrastate Transportation Agreement dated as of October 30, 2000 between
Xxxx Gateway Pipeline Company, Inc., and the Company, (f) all other storage service
agreements and transportation service agreements entered into by the Company with respect to the First Cavity, the Second Cavity and other
Additional Cavities for the storage of gas and pipeline service, together, in all cases
above, with all amendments, supplements, modifications, renewals and replacements thereof.
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Section 1.2. Section 5.09(a) of the Indenture shall be and is hereby amended by adding a new
subsection (v) as follows:
(v) unsecured Indebtedness incurred by the Company in connection with the
issuance of up to $55,000,000 in industrial development revenue bonds by The
Industrial Development Authority of Washington County, Alabama (the “XXX”) to
finance an Expansion Project (the “IDRB’s”), including without limitation payment
obligations pertaining to any loan agreement with the XXX, any reimbursement
agreement with respect to any Letter of Credit which the Company may cause to be
issued in connection with the IDRB’s or any interest rate swap entered into in
connection with the IDRB’s and other fees and related costs customarily incurred in
connection with transactions of such type.
Section 1.3. Section 5.10 of the Indenture shall be and is hereby amended and restated in its
entirety to read as follows:
Section 5.10. Debt Service Coverage Ratio. The Company will not at any time permit the
Debt Service Coverage Ratio for each period of four consecutive fiscal quarters ended
December 31, 2000 and thereafter to be less than 1.25 to 1.00.
Section 1.4. Section 5.12 of the Indenture shall be and is hereby amended and restated in its
entirety to read as follows:
Section 5.12. Restricted Payments. The Company will not take any of the following
actions if both before and after giving effect thereto either (a) any Event of Default shall
have occurred and be continuing or (b) the Debt Service Coverage Ratio for the 12 months
preceding the date of the proposed action was less than 1.35 to 1.00:
(i) Make any distributions, either in cash or property, on any partnership
interests of the Company;
(ii) Directly or indirectly, or through any Subsidiary, purchase, redeem or
retire any partnership interests of the Company or any rights or options to purchase
or acquire any partnership interests of the Company;
(iii) Make any other payment or distribution, either directly or indirectly or
through any Subsidiary, in respect of any partnership interests of the Company; or
(iv) Make any Investment in minority interests of any Person for the express
purpose of developing any Expansion Project.
Section 1.5. Section 5.17 of the Indenture shall be and is hereby amended by adding a new
subsection (c) to read as follows:
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(c) The Company agrees that it will not develop natural gas storage cavities except
pursuant to the Development Agreement.
Section 1.6. Section 5.18 of the Indenture shall be and is hereby amended and restated in its
entirety to read as follows:
Section 5.18. Additional Collateral Agreements. The Company agrees that each storage
service agreement and transportation service agreement entered into by the Company from and
after August 1, 2007 in connection with (x) gas storage in the First Cavity, the Second
Cavity and Additional Cavities and (y) pipeline service shall constitute a Collateral
Agreement hereunder, and the Company will, with respect to each material storage service
agreement and transportation service agreement:
(a) within 15 business days of the later of execution and delivery of each such
additional agreement or the effective date thereof, furnish notice to the Trustee
and the Noteholders, including a copy of such additional agreement certified as
true, correct and complete by a Responsible Officer of the General Partner;
(b) within 15 business days after the filing thereof, provide to the Trustee
copies, of all applications to the Alabama Public Service Commission (and each other
regulatory authority, to the extent applicable), made with respect to such
additional agreement and, within 10 days after issuance, provide to the Trustee
copies, certified as true, correct and complete by a Responsible Officer of the
General Partner, of the related orders of such authorities and all amendments to any
such applications or orders, authorizing such additional agreement;
(c) within 15 business days of the later of the execution and delivery of each
such additional agreement or the effective date thereof, amend each Uniform
Commercial Code financing statement filed in connection with this Indenture in order
to evidence the first priority security interest and lien on each such agreement
created by this Indenture and forward notice thereof to the Trustee;
(d) within 15 business days of the later of the execution and delivery of each
such additional agreement or the effective date thereof, cause to be executed and
delivered an Assignment Consent by the Contracting Party to such additional
agreement and an opinion, which may contain customary assumptions, qualifications
and exceptions that do not materially detract from the substance of the opinions
contained therein, of counsel of such Contracting Party (which counsel may be an
employee of such Contracting Party) to the effect that such
additional agreement has been duly authorized, executed and delivered by the
Contracting Party and is enforceable against the Contracting Party in accordance
with its terms; and
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(e) within such reasonable period, not less than 10 business days, as may be
requested by the Trustee, execute, acknowledge and deliver any and all such further
instruments and take such further acts as the Trustee may reasonably require in
connection with such additional Collateral Agreement.
For purposes of this Section 5.18 hereof, a material storage service or
transportation service agreement shall be such an agreement (a) which is for firm
(non-interruptible) services, and (b) from which the revenues to be received by the
Company during the first fiscal year of the Company in which the full capacity
committed under such agreement is available for the entire fiscal year, are,
individually under such agreement or when taken together with all other storage
service and transportation agreements then in effect between the Company and the
Contracting Party and as to which no Assignment Consent has already been executed
and delivered, reasonably anticipated to exceed an amount equal to five percent (5%)
of the storage and transportation service revenues received by the Company during
the fiscal year immediately preceding the year in which such agreement is made.
Section 2. Representations and Warranties of the Company.
To induce the Trustee and the Noteholders to execute and deliver this Supplemental Indenture
(which representations shall survive the execution and delivery of this Supplemental Indenture),
the Company represents and warrants to the Trustee and the Noteholders that:
(a) The Company is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Alabama pursuant to the Limited Partnership
Agreement dated as of December 5, 1991, as amended, and is duly qualified as a foreign
limited partnership and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(b) this Supplemental Indenture has been duly authorized, executed and delivered by the
Company and this Supplemental Indenture constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights generally
and (ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(c) the Indenture, as amended by this Supplemental Indenture, constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
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(d) the execution, delivery and performance by the Company of this Supplemental
Indenture will not (i) contravene, result in any breach of, or constitute a default under,
or result in the creation of any Lien in respect of any Property of the Company under, any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, charter or
by-laws, or any other agreement or instrument to which the Company is bound or by which the
Company or any of its Properties may be bound or affected, (ii) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the Company or (iii)
violate any provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company;
(e) no consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution, delivery or
performance by the Company of this Supplemental Indenture other than the Second Order of the
Alabama Public Service Commission, Informal Docket U-4246, dated July 10, 2007, which order
has been obtained and is in full force and effect;
(f) as of the date hereof, no Default or Event of Default has occurred which is
continuing; and
(g) since September 30, 2006, there has been no change in the financial condition,
operations, business, properties or prospects of the Company except changes that
individually or in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
Section 3. Conditions to Effectiveness of This Supplemental Indenture.
This Supplemental Indenture shall become effective and binding upon the Company, the Trustee
and the Noteholders on the Effective Date upon the Trustee’s and the Noteholders’ acceptance in the
space below and upon the satisfaction in full of each and every one of the following conditions:
(a) executed counterparts of this Supplemental Indenture, duly executed by the Company
and the Trustee and approved by the holders of at least 51% in aggregate principal amount of
the outstanding Notes, shall have been delivered to the Trustee and each of the Noteholders;
(b) a copy of the resolutions of the Board of Directors authorizing the execution,
delivery and performance by the Company of this Supplemental Indenture,
certified by its Secretary or an Assistant Secretary, shall have been delivered to the
Trustee and each of the Noteholders;
(c) there shall have been entered or made, and there shall be in effect, an order of
the Alabama Public Service Commission authorizing the execution and delivery of this
Supplemental Indenture, copies of which, and all amendments thereto, shall have
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been delivered to the Trustee and each of the Noteholders certified as true, correct and
complete by a Responsible Officer; such order shall not contain any provision or condition
unacceptable to the Noteholders or their special counsel and shall be final and
unappealable;
(d) the representations and warranties of the Company set forth in Section 4 hereof are
true and correct on and with respect to the date hereof, and execution of this Supplemental
Indenture by the Company shall constitute its certification of the same;
(e) a favorable written opinion of counsel to the Company addressed to the Trustee and
each of the Noteholders as to the matters set forth in Sections 2(a) through (e), hereof,
and as to other matters reasonably requested by the Noteholders, in form and substance
satisfactory to the Noteholders, shall have been delivered to the Trustee and the
Noteholders.
(f) payment by the Company to or for the account of each Noteholder of an amendment fee
equal to one quarter of one percent (0.25%) of the outstanding balance of the Series 8.45%
Note(s) held by such Noteholder, which fee shall be fully earned on the date paid and shall
be paid by wire transfer of immediately available funds in the same manner and to the same
accounts as the most recent quarterly interest payment on such Series 8.45% Notes.
Upon receipt or satisfaction of all of the foregoing, this Supplemental Indenture shall become
effective.
Section 4. Payment of Counsel Fees and Expenses.
The Company agrees to pay upon demand, the reasonable fees and expenses of Xxxxxxx and Xxxxxx
LLP, special counsel to the Noteholders, in connection with the negotiation, preparation, approval,
execution and delivery of this Supplemental Indenture.
Section 5. Miscellaneous.
Section 5.1. This Supplemental Indenture shall be construed in connection with and as part of
the Indenture, and except as modified and expressly amended by this Supplemental Indenture, all
terms, conditions and covenants contained in the Indenture are hereby ratified and confirmed and
remain in full force and effect.
Section 5.2. Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Supplemental Indenture may refer to the
Indenture without making specific reference to this Supplemental Indenture but nevertheless all
such references shall include this Supplemental Indenture unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts of this Supplemental
Indenture are for convenience only and shall not affect the meaning or construction of any of the
provisions hereof.
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Section 5.4. This Supplemental Indenture shall be governed by and construed in accordance with
the laws of the State of Alabama.
[Remainder of Page Intentionally Left Blank]
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| Bay Gas Storage Company, Ltd. | First Supplemental Indenture |
Section 5.5. The execution hereof by you shall constitute a contract between us for the uses
and purposes hereinabove set forth, and this Supplemental Indenture may be executed in any number
of counterparts, each executed counterpart constituting an original, but all together only one
agreement.
| Bay Gas Storage Company, Ltd. | ||||
| By | EnergySouth Midstream, Inc. | |||
| f/k/a EnergySouth Storage Services, Inc., | ||||
| f/k/a MGS Storage Services, Inc., |
||||
| its General Partner | ||||
| By | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Sr. Vice President & CFO | ||||
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| Bay Gas Storage Company, Ltd. | First Supplemental Indenture |
| Regions Bank, as trustee under the Trust Indenture and | ||||||
| Security Agreement dated as of December 1, 2000 | ||||||
| By | /s/ Xxxxxxx X. Xxxx | |||||
| Name: | Xxxxxxx X. Xxxx | |||||
| Title: | Vice President and Corp. Trust Officer | |||||
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| Bay Gas Storage Company, Ltd. | First Supplemental Indenture |
Each of the undersigned Noteholders acknowledges that it has received a copy of the foregoing
First Supplemental Indenture, consents to its terms and to the execution thereof by the Trustee.
| Noteholders: Xxxx Xxxxxxx Life Insurance Company |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
| Xxxx Xxxxxxx Variable Life Insurance Company |
||||
| By | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
| Modern Woodmen of America |
||||
| By | /s/ Xxxx X. Coin | |||
| Name: | Xxxx X. Coin | |||
| Title: | Treasures & Investment Manager | |||
| Prudential Retirement Insurance and Annuity Company |
||||
| By: | Prudential Investment Management, Inc., as investment manager |
|||
| By: | [Illegible] | |||
| Vice President | ||||
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| Bay Gas Storage Company, Ltd. | First Supplemental Indenture |
The undersigned acknowledges that it is a guarantor of the Notes described in the foregoing
First Supplemental Indenture pursuant to a Guaranty Agreement dated as of December 1, 2000. The
undersigned further acknowledges that it has received a copy of the foregoing Supplemental
Indenture, consents to its terms, and ratifies and confirms that said Guaranty Agreement and its
obligations thereunder remain in full force and effect.
| EnergySouth, Inc. |
||||
| By | /s/ X. X. Xxxxxxx | |||
| Name: | X.X. Xxxxxxx | |||
| Title: | President | |||
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