Exhibit 10.43
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (this "Consent"), dated as of
August 1, 1995, is executed by SCOTT PAPER COMPANY, a Pennsylvania corporation
(the "Consenting Party"), MOBILE ENERGY SERVICES COMPANY, L.L.C., an Alabama
limited liability company (the "Borrower")(which is an indirect wholly-owned
subsidiary of The Southern Company, a Delaware corporation ("Southern")), and
BANKERS TRUST (DELAWARE), a Delaware banking corporation, as Collateral Agent
for the Secured Parties (as hereinafter defined) (the "Collateral Agent").
A. The Borrower, Mobile Energy Services Holdings, Inc.
(formerly known as Mobile Energy Services Company, Inc.), an Alabama corporation
("Mobile Energy"), and First Union National Bank of Georgia, as trustee (in such
capacity, the "Taxable Trustee"), have entered into a Trust Indenture dated as
of August 1, 1995 (the "Taxable Indenture"), pursuant to which the Borrower (i)
is issuing its First Mortgage Bonds (the "Taxable Bonds"), the proceeds of which
will be used to (among other things) repay to Southern a portion of the amounts
advanced to pay certain costs associated with the acquisition of the Energy
Complex (as defined in the Master Operating Agreement (as hereinafter defined))
and (ii) may, from time to time, issue additional Senior Debt (as defined in the
Taxable Indenture).
B. The Borrower, Mobile Energy and The Industrial Development
Board of the City of Mobile, Alabama (the "Board") have entered into an Amended
and Restated Lease and Agreement dated as of August 1, 1995 with respect to part
of the Energy Complex, relating to The Industrial Development Board of the City
of Mobile, Alabama Solid Waste Revenue Refunding Bonds (Mobile Energy Services
Company, L.L.C. Project), Series 1995 (the "Tax-Exempt Bonds" and, together with
the Taxable Bonds, the "Bonds") to be issued for the benefit of the Borrower
pursuant to an Amended and Restated Indenture dated as of August 1, 1995 (the
"Tax-Exempt Indenture" and, together with the Taxable Indenture, the
"Indentures") between the Board and First Union National Bank of Georgia, as
trustee (in such capacity, the "Tax-Exempt Trustee"). The proceeds of the Tax-
Exempt Bonds will be used to refinance the 1984 Tax-Exempt Bonds and to pay for
certain other costs.
C. The Borrower and Banque Paribas (together with any lender
that is or becomes a provider of the Working Capital Facility (as hereinafter
defined), the "Working Capital Facility Provider" and, together with the Taxable
Trustee and the Tax-Exempt Trustee, the "Secured Parties") have entered into a
Revolving Credit Facility dated as of August 1, 1995 and together with any
replacement working capital facility, the "Working Capital
Facility"), borrowings under which will be used to finance certain working
capital requirements of the Borrower.
D. The Consenting Party and Mobile Energy have entered into
(i) that certain Asset Purchase Agreement dated as of December 12, 1994; (ii)
that certain Assignment and Assumption Agreement dated as of December 12, 1994;
and (iii) that certain Employee Transition Agreement dated as of December 12,
1994, as amended pursuant to the First Amendment to Employee Transition
Agreement dated as of July 13, 1995 (collectively, as the same may be amended,
waived or otherwise modified, the "Contracts").
E. Pursuant to an Omnibus Deed, Bill of Sale, General
Assignment and Conveyance Agreement between Mobile Energy and the Borrower dated
as of July 14, 1995, Mobile Energy has assigned to the Borrower, and the
Borrower has assumed, all of Mobile Energy's rights and obligations under the
Contracts.
F. The Collateral Agent has been granted a security interest
in the Contracts and the Energy Complex for the benefit of the Secured Parties
pursuant to an Intercreditor and Collateral Agency Agreement dated as of August
1, 1995 by and among the Secured Parties, the Board, the Collateral Agent, the
Borrower and Mobile Energy (as the same may be amended, supplemented, waived or
otherwise modified, the "Intercreditor Agreement") and the other Financing
Documents (as defined in the Amended and Restated Master Operating Agreement
dated as of July 13, 1995 and effective as of December 12, 1994 (the "Master
Operating Agreement").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Consenting Party acknowledges the assignments referred
to in Recitals E and F above and hereby irrevocably consents to such
assignments, and each of the parties hereto agrees as follows:
(a) Unless otherwise defined herein, all terms used
in this Consent shall have the meanings given in Exhibit A to the Master
Operating Agreement. Except as otherwise expressly provided herein, the rules of
interpretation set forth in said Exhibit A shall apply to this Consent.
(b) The Collateral Agent shall be entitled to
exercise all rights of the Borrower under the Contracts and to cure any defaults
of the Borrower under the Contracts within the time periods set forth in the
Contracts or within thirty (30) days of receiving notice of such default,
whichever is later. Upon receipt of the foregoing notice from the Collateral
Agent, the Consenting Party agrees to accept such exercise and cure by the
Collateral Agent, in each case strictly in accordance with the Contracts (except
as provided above) and to render all performance due by it under the Contracts
and this Consent to the Collateral Agent. The Consenting Party agrees to make
all payments (if any) to be made by
-2-
it under the Contracts directly to the Collateral Agent for the benefit of the
Secured Parties upon receipt of the Collateral Agent's written instructions and
each of the Consenting Party and the Collateral Agent agree that any payments
made by the Consenting Party to the Collateral Agent pursuant to such
instructions shall satisfy the Consenting Party's obligations to make such
payments to the Borrower in accordance with the Contracts and shall relieve the
Consenting Party of all liability with respect to such payments. To the extent
that the Collateral Agent assumes all of the Borrower's indemnification rights
under the Contracts, the Borrower shall not be entitled to indemnification
thereunder with respect to identical claims.
(c) The Consenting Party agrees to deliver
duplicates or copies of all notices of default delivered under or pursuant to
the Contracts to the Collateral Agent promptly upon receipt thereof; provided
that any failure by the Consenting Party to deliver to the Collateral Agent any
such duplicates or copies shall not subject the Consenting Party to any
liability whatsoever.
2. The Consenting Party will not, without the prior written
consent of the Collateral Agent, terminate, amend or modify the Contracts in any
respect that has a material adverse effect on the Borrower's rights or
obligations.
3. This Consent shall be binding upon and benefit the
successors and assigns of the Consenting Party, the Borrower, the Collateral
Agent, the Secured Parties and their respective successors, transferees and
assigns (including, without limitation, any entity that refinances all or any
portion of the obligations under the Financing Documents and that countersigns
this Consent). This Consent shall be governed by the laws of the State of New
York, without reference to principles of conflict of laws (other than Section
5-1401 of the New York General Obligations Law).
4. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement.
5. It is expressly understood and agreed by the parties hereto
that this Consent has been executed by Bankers Trust (Delaware), not in its
individual capacity, but solely as Collateral Agent hereunder in the exercise of
the power and authority conferred and invested in it.
-3-
IN WITNESS WHEREOF, the parties hereto by their officers
thereunto duly authorized, have duly executed this Consent as of the date set
forth below.
Dated as of: August 1, 1995
SCOTT PAPER COMPANY, a Pennsylvania
corporation
By: /s/
Name: Thomas C. Deas, Jr.
Title: Assistant Treasurer
BANKERS TRUST (DELAWARE), a Delaware
banking corporation, as Collateral
Agent
By: /s/
Name: James H. Stallkamp
Title:President
MOBILE ENERGY SERVICES COMPANY,
L.L.C., an Alabama limited liability
company, as Borrower
By: /s/
Name: Christopher J. Kysar
Title: Vice President
ACKNOWLEDGED:
MOBILE ENERGY SERVICES HOLDINGS, INC.,
an Alabama corporation
By: /s/
Name: Christopher J. Kysar
Title: Vice President