Exhibit 10.47
CONSENT AND AGREEMENT
THIS CONSENT AND AGREEMENT (this "Consent"), dated as of
August 1, 1995, is executed by E.J. HODDER & ASSOCIATES, INC., a Tennessee
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 the Borrower (as assignee
of Mobile Energy) have entered into that certain Coal Supply
Contract, dated as of May 1, 1995 (as the same may be amended, waived or
otherwise modified, the "Contract").
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 F, E and F above and hereby irrevocably consents to such
assignments, and each of the parties hereto agrees as follows:
(a) The Collateral Agent shall be entitled to
exercise all rights of the Borrower under the Contract and to cure any defaults
of the Borrower under the Contract within the time periods set forth in the
Contract 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 Contract (except
as provided above) and to render all performance due by it under the Contract
and this Consent to the Collateral Agent. The Consenting Party agrees to make
all payments (if any) to be made by it under the Contract 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
Contract 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 Contract, the Borrower shall not be
entitled to indemnification thereunder with respect to identical claims.
(b) The Consenting Party agrees to deliver
duplicates or copies of all notices of default delivered under or pursuant to
the Contract to the Collateral Agent promptly upon receipt thereof; provided
that any failure by the Consenting Party
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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 Contract in any
respect that has a material adverse effect on the Borrower's rights or
obligations; provided that, subject to Section 1 above, nothing herein shall
prohibit termination by the Consenting Party following a default by the Borrower
and the expiration of the applicable cure period specified in the Contract.
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 (as defined in the
Intercreditor Agreement) 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 vested in it, and nothing contained herein
shall be construed as creating any liability on Bankers Trust (Delaware),
individually or personally, to perform any covenant, either expressed or
implied, contained herein, all such liability, if any, being expressly waived by
the parties hereto.
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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
E.J. HODDER & ASSOCIATES, INC., a
Tennessee corporation
By: /s/
Name: Edwin J. Hodder, Jr.
Title:President
BANKERS TRUST (DELAWARE), a
Delaware banking
corporation, as Collateral
Agent, on behalf of itself
and the Secured Parties
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