Exhibit 4.6
EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
among
MOBILE ENERGY SERVICES COMPANY, L.L.C.
MOBILE ENERGY SERVICES HOLDINGS, INC.
and
THE LENDERS NAMED HEREIN
and
BANQUE PARIBAS,
as Agent
dated as of August 1, 1995
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF INTERPRETATION........................ 1
ARTICLE II
COMMITMENTS AND LOANS........................ 5
SECTION 2.1. The Facility................................................ 5
SECTION 2.2. Making Loans................................................ 7
SECTION 2.3. Interest.................................................... 8
SECTION 2.4. Repayment................................................... 9
SECTION 2.5. Prepayments................................................. 9
SECTION 2.6. Fees........................................................ 10
SECTION 2.7. Security.................................................... 10
SECTION 2.8. Payments.................................................... 10
SECTION 2.9. Computation of Interest and Fees............................ 11
SECTION 2.10. Payments on Non-Business Days.............................. 11
SECTION 2.11. Sharing of Payments, Etc................................... 12
SECTION 2.12. Evidence of Debt........................................... 12
SECTION 2.13. Increased Costs............................................ 13
SECTION 2.14. Taxes...................................................... 14
SECTION 2.15. Illegality................................................. 16
SECTION 2.16. Inability to Determine Interest Rate....................... 17
SECTION 2.17. Transfer of Lending Office.................................. 17
ARTICLE III
CONDITIONS PRECEDENT........................ 18
SECTION 3.1. Conditions Precedent to Initial Borrowing................... 18
SECTION 3.2. Conditions Precedent to Each Borrowing...................... 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................. 19
ARTICLE V
COVENANTS............................. 20
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ARTICLE VI
DEFAULTS AND REMEDIES........................ 22
ARTICLE VII
THE AGENT............................. 24
SECTION 7.1. Authorization and Action.................................... 24
SECTION 7.2. Agent's Reliance, Etc....................................... 24
SECTION 7.3. Initial Lender and Affiliates............................... 25
SECTION 7.4. Lender Credit Decision...................................... 25
SECTION 7.5. Indemnification............................................. 25
SECTION 7.6. Successor Agent............................................. 26
ARTICLE VIII
GUARANTY............................... 26
SECTION 8.1. Guaranty of Payment and Performance......................... 26
SECTION 8.2. Continuance and Acceleration of Obligations upon
Certain Events............................................. 26
SECTION 8.3. Recovered Payments.......................................... 27
SECTION 8.4. Evidence of Obligations..................................... 27
SECTION 8.5. Binding Nature of Certain Adjudications..................... 27
SECTION 8.6. Nature of Mobile Energy's Obligations....................... 28
SECTION 8.7. No Release of Mobile Energy................................. 28
SECTION 8.8. Certain Waivers............................................. 29
SECTION 8.9. Independent Credit Evaluation............................... 30
SECTION 8.10. Subordination of Rights Against Company, Other Guarantors
and Collateral............................................. 30
SECTION 8.11. Payments by Mobile Energy................................... 30
SECTION 8.12. Continuance of Guaranty; Survival........................... 31
SECTION 8.13. Assignments and Participations.............................. 31
SECTION 8.14. Benefit and Enforcement..................................... 31
ARTICLE IX
MISCELLANEOUS........................... 32
SECTION 9.1. Amendments, Etc............................................. 32
SECTION 9.2. Notices, Etc................................................ 32
SECTION 9.3. No Waiver; Remedies......................................... 32
SECTION 9.4. Costs and Expenses.......................................... 33
SECTION 9.5. Application of Monies....................................... 33
SECTION 9.6. Severability................................................ 34
SECTION 9.7. Non-recourse Liability...................................... 34
SECTION 9.8. Binding Effect.............................................. 35
SECTION 9.9. Assignments and Participations.............................. 35
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SECTION 9.10. Indemnification............................................ 37
SECTION 9.11. Governing Law.............................................. 39
SECTION 9.12. Headings................................................... 39
SECTION 9.13. Execution in Counterparts.................................. 39
SECTION 9.14. Third Party Beneficiaries.................................. 39
SECTION 9.15. Waiver of Jury Trial....................................... 39
SECTION 9.16. Submission To Jurisdiction; Waivers........................ 39
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REVOLVING CREDIT AGREEMENT, dated as of August 1, 1995, among
MOBILE ENERGY SERVICES COMPANY, L.L.C., an Alabama limited liability company
(the "Company"), MOBILE ENERGY SERVICES HOLDINGS, INC., an Alabama corporation
("Mobile Energy"), BANQUE PARIBAS (in its individual capacity, the "Initial
Lender"), each other lender that becomes a party hereto pursuant to Section 9.9
(together with the Initial Lender, collectively, the "Lenders") and BANQUE
PARIBAS, as agent (in such capacity, the "Agent") for the Lenders.
W I T N E S S E T H :
WHEREAS, the Company owns and operates the Energy Complex (as
defined herein) and is financing the acquisition, construction and equipping of
the Energy Complex through, among other things, the issue and sale by the
Company of the First Mortgage Bonds (as defined herein);
WHEREAS, in connection with the financing of certain portions
of the Energy Complex, the IDB (as defined herein) will issue the Tax-Exempt
Bonds (as defined herein);
WHEREAS, the Company may, from time to time after the date of
this Agreement, issue additional Indenture Securities (as defined herein), or
cause the IDB to issue additional Tax-Exempt Indenture Securities (as defined
herein), for the purposes described in the Financing Documents (as defined
herein); and
WHEREAS, the Company intends to finance certain of its working
capital requirements arising in connection with the operation of the Energy
Complex pursuant to, and the Company has requested that the Lenders make
available to the Company, and the Lenders are willing to make available to the
Company, a revolving credit facility of up to the maximum aggregate principal
amount of $15,000,000, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF INTERPRETATION
(a) For the purposes of this Agreement, except as expressly
provided in this Agreement or unless the context otherwise requires, all terms
used herein shall have the meanings set forth in Appendix A to the Intercreditor
and Collateral Agency Agreement dated as of August 1, 1995 among First Union
National Bank of Georgia, as the Indenture Trustee and Tax-Exempt Indenture
Trustee referred to therein, the Initial Lender, The Industrial Development
Board of the City of Mobile, Alabama, the
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Company, Mobile Energy and Bankers Trust (Delaware), as the Collateral Agent
referred to therein.
(b) The following terms are used in this Agreement
with the following respective meanings:
"Adjusted Base Rate" means the higher of (i) the Federal Funds
Rate plus one-half of one percent (0.50%) and (ii) the Reference Rate.
"Adjusted Base Rate Loan" means any Loan the interest on which
is, or is to be, as the context may require, computed on the basis of
the Adjusted Base Rate.
"Borrowing" means a borrowing by the Company consisting
of Loans made on the same day by the Lenders.
"Closing Date" means the date on which the conditions
precedent set forth in Article III have been fulfilled.
"Commitment" means, with respect to each Lender, (i) the
amount set forth opposite such Lender's name on the signature pages
hereof or (ii) if such Lender has entered into one (1) or more
Commitment Transfer Supplements, the amount set forth for such Lender
in the register maintained by the Agent, as the same may be ratably
reduced from time to time pursuant to Section 2.1(c).
"Commitment Transfer Supplement" means such document
substantially in the form of Exhibit C.
"Credit Documents" means this Agreement and each Note.
"Default" means an event that with the giving of any required
notice or the lapse of any required period of time would constitute an
Event of Default.
"Eurodollar Business Day" means any Business Day on which
dealings in United States dollar deposits are carried on by Banque
Paribas in the interbank eurodollar market and on which commercial
banks in London are generally open for domestic and foreign exchange
business (including dealings in United States dollar deposits).
"Event of Default" has the meaning specified in Article
VI.
"Expiration Date" means the earliest of (i) the Scheduled
Expiration Date, (ii) the date on which the Commitments are fully
canceled pursuant to Section 2.1(c) and (iii) the occurrence of an
Event of Default and the Agent's termination (or any automatic
termination) of the obligation of each Lender to make Loans hereunder,
in accordance with the provisions of Article VI.
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"Extension Request" has the meaning specified in
Section 2.1(b).
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Guaranty" means the guaranty of the Obligations by
Mobile Energy set forth in Article VIII.
"Indemnified Party" has the meaning specified in
Section 9.10.
"Interest Period" means, with respect to any LIBOR Rate Loan,
the period commencing on the date of the making of such Loan and ending
on and including the day preceding the same day in the first, second or
third calendar month thereafter, as selected by the Company and
specified in the related Notice of Borrowing; provided, however, that
(i) any Interest Period that would otherwise end on a day that is not a
Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day, unless such Eurodollar Business Day falls in a
different calendar month, in which case such Interest Period shall end
on the next preceding Eurodollar Business Day, and (ii) any Interest
Period that begins on the last Eurodollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day
in the calendar month in which such Interest Period ends) shall end on
the last Eurodollar Business Day of a calendar month. The Company shall
select Interest Periods so as not to require a payment or prepayment of
any LIBOR Rate Loan other than on the last day of the Interest Period
for such LIBOR Rate Loan.
"LIBOR Rate" means, with respect to each day during any
Interest Period, a rate per annum (rounded upwards, if necessary, to
the nearest 1/16th of one percent (0.0625%)) determined by the Agent to
be equal to (i) (A) the arithmetic mean of the rate at which deposits
in United States dollars (in the approximate amount of the Loan of
Banque Paribas to which such Interest Period applies) are offered to
Banque Paribas in the interbank eurodollar market at approximately
11:00 a.m. (New York time), two Eurodollar Business Days prior to the
first day of such Interest Period, divided by (B) 100% minus the
Reserve Requirement for such day, plus (ii) one percent (1.0000%).
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"LIBOR Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the
LIBOR Rate.
"Loan" means a loan by a Lender to the Company pursuant
to Section 2.1(a).
"Loan Repayment Date" means, in respect of each Loan, the
Business Day specified as such on the Notice of Borrowing relating
thereto; provided, however, that (i) such date shall not be later than
the Scheduled Expiration Date, (ii) such date shall not exceed 93 days
from the date such Loan is advanced to the Company pursuant to the
terms of this Agreement, (iii) in the case of LIBOR Rate Loans, such
date shall correspond to the last day of the Interest Period specified
in the related Notice of Borrowing and (iv) no more than $5,000,000
principal amount of Loans may be scheduled to mature within any
calendar month.
"Note" has the meaning specified in Section 2.12(a).
"Notice of Borrowing" means a Notice of Borrowing properly
completed and executed by an Authorized Officer of the Company
substantially in the form of Exhibit B.
"Obligations" means all of the obligations of the Mobile
Energy Parties to the Lenders and the Agent under the Credit Documents,
whether for principal, interest (including post-petition interest,
whether or not allowed as a claim), fees, expenses, indemnification or
otherwise.
"Participant" has the meaning specified in Section
9.9(b).
"Purchasing Lender" has the meaning specified in
Section 9.9(a).
"Reference Rate" means the variable rate of interest per annum
officially announced or published by Citibank, N.A. in New York, New
York from time to time as its "prime" or "reference" rate for United
States dollar loans in the United States, it being understood that the
Reference Rate is not necessarily the lowest or best rate actually
charged to any customer of Citibank, N.A. and that Citibank, N.A. may
make various commercial or other loans at rates of interest having no
relationship to such rate. For purposes of this Agreement, each change
in the Reference Rate shall be effective as of the opening of business
on the date announced as the effective date of the change in such
"prime" or "reference" rate.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System.
"Regulatory Change" means, subsequent to the date of
this Agreement, any adoption of or change in United States
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(including Federal, state or municipal) or foreign law or regulations
or the adoption or change or making of any application, interpretation,
directive, request or guideline of or under any United States
(including Federal, state or municipal) or foreign law or regulations
by any Governmental Authority, in each case whether or not having the
force of law.
"Required Lenders" means, at any time, Lenders holding Notes
evidencing at least 66-2/3% of the aggregate unpaid principal amount of
the Loans or, if no Loans are then outstanding, having at least 66-2/3%
of the Total Commitment.
"Reserve Requirement" means, for any day as applied to a LIBOR
Rate Loan, the aggregate (without duplication) of the rates (expressed
as a decimal) of reserve requirements in effect on such day (including
basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or
other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D)
maintained by a member bank of the Federal Reserve System. The LIBOR
Rate shall be adjusted automatically on and as of the effective date of
any change in the Reserve Requirement.
"Scheduled Expiration Date" means December 31, 2001, unless
extended pursuant to Section 2.1(b), in which case it shall be such
extended date.
"Total Commitment" means $15,000,000, which is the aggregate
amount of the Commitments, as such amount may be reduced from time to
time pursuant to Sections 2.1(c) and 2.1(d).
ARTICLE II
COMMITMENTS AND LOANS
SECTION 2.1. The Facility. (a) Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Loans to the
Company from time to time on any Business Day in the case of Adjusted Base Rate
Loans and on any Eurodollar Business Day in the case of LIBOR Rate Loans during
the period from the Closing Date to the Expiration Date in an aggregate unpaid
principal amount not to exceed at any time such Lender's Commitment. Each
Borrowing shall consist of Loans bearing interest at the same rate made on the
same day by Lenders ratably according to their respective Commitments. Each
Borrowing consisting of Adjusted Base Rate Loans shall be in an amount equal to
$50,000 or an integral multiple of $10,000 in excess thereof (or the amount of
the unused Total Commitment) and each Borrowing consisting of LIBOR Rate Loans
shall be in an amount
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equal to $200,000 or an integral multiple of $25,000 in excess thereof (or the
amount of the unused Total Commitment). There shall not be Loans representing
more than five Borrowings outstanding on any date.
(b) Subject to the terms and conditions of this Section
2.1(b), the Scheduled Expiration Date may be extended by an additional year from
time to time at the written request of the Company (an "Extension Request").
Each Extension Request shall be delivered to the Agent not more than fifteen
(15) months and not less than twelve (12) months prior to the Scheduled
Expiration Date. If the Agent receives an Extension Request, it will give prompt
notice thereof to each Lender, and each Lender shall have the right to approve
or reject, in its sole and absolute discretion, such Extension Request by giving
the Agent written notice of its decision within sixty (60) days following its
receipt of the Agent's notice thereof. If the Lenders unanimously approve such
Extension Request, the Agent shall so notify the Company within ninety (90) days
following its receipt of such Extension Request and the Scheduled Expiration
Date shall, effective from the date of such notice, be the date one (1) year
subsequent to the prior Scheduled Expiration Date. If for any reason the Agent
does not respond to such Extension Request within ninety (90) days following its
receipt thereof or if such Extension Request is not approved by each Lender,
such Extension Request shall be deemed to have been rejected.
(c) The Company shall have the right, upon at least five (5)
Business Days' notice to the Agent, to terminate in whole, or from time to time
reduce in part, the unused portion of the Total Commitment, provided that each
partial reduction of the unused portion of the Total Commitment shall be in an
amount equal to $1,000,000 or an integral multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice, the Agent shall promptly notify each
Lender of the contents thereof and the amount to which such Lender's Commitment
is to be ratably reduced.
(d) If an Event of Loss or Event of Eminent Domain shall have
occurred in connection with which the Company shall not have fully rebuilt,
repaired, restored or replaced the Energy Complex or the part thereof that has
been affected by such Event of Loss or Event of Eminent Domain (as the case may
be), and Loss Proceeds with respect thereto are to be distributed by the
Collateral Agent pursuant to Section 6.2(b) of the Intercreditor Agreement, the
Total Commitment in effect immediately prior to such distribution shall be
automatically and permanently reduced (but not to less than zero) by an amount
equal to the Working Capital Facility's Percentage Share of the Excess Loss
Proceeds (calculated without regard to the Working Capital Facility Distribution
Amount) with respect to such Event of Loss or Event of Eminent Domain. Such
reduction shall be effective on the first date on which the Company is required
to redeem or prepay such Senior Securities, provided that if at or prior to the
time of any such redemption or prepayment of the Senior Securities the Energy
Complex has been fully rebuilt, repaired, restored and
7
replaced to the same operating capacities and operating standards and to the
same condition as existed prior to the occurrence of such Event of Loss or Event
of Eminent Domain and the Company has delivered a written request to the Agent
requesting that the Total Commitment not be reduced in connection with such
Event of Loss or Event of Eminent Domain, then the Total Commitment shall be
reduced pursuant to this paragraph (b) only if the Required Lenders have
requested that the Total Commitment be so reduced.
SECTION 2.2. Making Loans. (a) The Company shall deliver to
the Agent a Notice of Borrowing not later than 11:00 a.m., New York time, (i) at
least one (1) Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Adjusted Base Rate Loans and (ii) at least
three (3) Eurodollar Business Days prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of LIBOR Rate Loans, and, in each case,
the Agent shall give each Lender prompt notice thereof by telecopier. Each
Lender shall, before 11:00 a.m., New York time, on the date of such Borrowing,
make available to the Agent at its address set forth in Section 9.2, in
immediately available funds, such Lender's ratable portion of such Borrowing.
After the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Company by transferring such funds to the Collateral Agent for deposit into
the Operating Account or such other account as the Company may designate (in
each case, as specified in the applicable Notice of Borrowing), unless the
proceeds of such Loans are to be used to pay any Obligations, in which case such
proceeds will be applied directly to the payment of such Obligations.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Company, unless revoked by the Company in writing (i) in the case of
Adjusted Base Rate Loans, at least three (3) Business Days prior to the date of
such proposed Borrowing and (ii) in the case of LIBOR Rate Loans, at least five
(5) Eurodollar Days prior to the date of such proposed Borrowing.
(c) Unless the Agent receives notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with Section 2.2(a), and the Agent may, in reliance upon
such assumption, make available to the Company on such date a corresponding
amount on behalf of such Lender. If and to the extent that such Lender has not
made such ratable portion available to the Agent, and Agent has made such amount
available to the Company, the Agent shall first make written demand upon such
Lender for payment and shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall promptly notify the
Company and the Company shall immediately repay such corresponding amount to the
Agent; provided, however, that if the Company repays such corresponding amount
to the Agent and such Lender subsequently
8
makes available to the Agent its ratable portion of such Borrowing, the Agent
shall promptly make the proceeds thereof available to the Company. The Agent
shall also be entitled to recover from such Lender or the Company, as the case
may be, interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Agent to the Company to
the date such corresponding amount is recovered by the Agent at the following
interest rates: (i) with respect to interest from the Company, at the applicable
interest rate for the type of Loan selected by the Company with respect to such
amount; and (ii) with respect to interest from such Lender, at the Federal Funds
Rate until and including the second Business Day after demand is made and
thereafter at the Adjusted Base Rate. If such Lender pays to the Agent such
corresponding amount, such amount so paid shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement.
(d) The obligations of the Lenders to make Loans to the
Company pursuant to this Agreement are several and not joint or joint and
several, and the failure of any Lender to make the Loan to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on the date of any Borrowing.
SECTION 2.3. Interest. (a) Unless an Event of Default is
continuing, each Loan shall bear interest at the rates set forth below, and the
Company shall pay interest on the unpaid principal amount of each Loan made by
each Lender from the date of such Loan until the principal amount thereof has
been repaid in full, at the times and at the rates per annum set forth below:
(i) Adjusted Base Rate Loans shall bear interest at a rate per
annum equal at all times to the Adjusted Base Rate in effect from time
to time, payable on (A) the related Loan Repayment Date, (B) the date
of any prepayment of such Loan pursuant to Section 2.5 and (C) the
Expiration Date;
(ii) LIBOR Rate Loans shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to
the LIBOR Rate for such day, payable on (A) the last day of such
Interest Period, (B) the date of any prepayment of such Loan pursuant
to Section 2.5 and (C) the Expiration Date.
(b) On and after the date of the occurrence of any Event of
Default caused by the failure to make a monetary payment hereunder, so long as
such Event of Default is continuing, to the extent permitted by applicable Law
the Loans shall bear interest at a rate per annum equal at all times to the
Adjusted Base Rate in effect from time to time plus two percent (2%), payable on
demand.
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SECTION 2.4. Repayment. The Company shall repay each
Loan on the earlier of (a) the applicable Loan Repayment Date and
(b) the Expiration Date.
SECTION 2.5. Prepayments. (a) Subject to the provisions of
Section 2.5(d), the Company may, at any time and from time to time on any
Business Day in the case of Adjusted Base Rate Loans and on any Eurodollar
Business Day in the case of LIBOR Rate Loans, prepay without premium or penalty
the outstanding principal amount of the Loans making up one (1) or more
Borrowings in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid. The Company shall give
the Agent irrevocable prior written notice of any such prepayment not later than
11:00 a.m., New York time, at least one (1) Business Day or Eurodollar Business
Day, as the case may be, prior to the date of any such prepayment, such notice
stating the proposed date and specifying the Borrowing or Borrowings and
aggregate principal amount of the Loans to be prepaid.
(b) If at any time the aggregate principal amount of the Loans
exceeds the Total Commitment in effect at such time, the Company shall at such
time repay or prepay the Loans in an amount equal to the amount of such excess.
Any such repayment or prepayment shall by accompanied by the payment of interest
on the amount repaid or prepaid.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Company shall repay Loans so that, or otherwise ensure that, no
Loans are outstanding for a period of five (5) consecutive days during each
Fiscal Year subsequent to 1995.
(d) The Company agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense that such Lender may sustain or
incur as a consequence of (i) default by the Company in making a borrowing of,
conversion into or continuation of LIBOR Rate Loans after the Company has given
a notice requesting the same in accordance with the provisions of this
Agreement, (ii) default by the Company in making payment or any prepayment after
the Company has given notice thereof in accordance with the provisions of this
Agreement or (iii) the making of a payment of LIBOR Rate Loans on a day that is
not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (A) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such payment
or prepayment or of such failure to borrow, convert or continue to the last day
of such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure), in each case at the applicable rate of interest for such Loans
provided for herein over (B) the amount of interest (as reasonably determined by
such Lender) that would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with
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leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(e) Each prepayment of Loans shall be applied first to
Adjusted Base Rate Loans and then to LIBOR Rate Loans, such application of LIBOR
Rate Loans to be made to LIBOR Rate Loans based on the direct order of maturing
Interest Periods. In the event that any LIBOR Rate Loan is required to be repaid
during an Interest Period therefor as a result of a reduction in the Total
Commitment pursuant to Section 2.1(d), then, if no Default or Event of Default
is then continuing, the Company may, in lieu of making such repayment of LIBOR
Rate Loans, deposit with the Agent an amount of cash equal to the amount of such
required repayment to be held by the Agent as cash collateral for payment of the
Loans and to be applied to repayment of such LIBOR Rate Loans on the last day of
the respective Interest Periods therefor. The Company agrees to execute and
record in the appropriate offices such documents as the Agent may request with
respect to such cash collateral arrangements, including with respect to the
creation and perfection of such liens.
SECTION 2.6. Fees. (a) The Company shall pay to the Agent, for
the respective accounts of the Lenders, a commitment fee for the period from and
including the Closing Date to but excluding the Expiration Date, computed at the
rate of .375% per annum on the average daily unused amount of the Total
Commitment, payable quarterly in arrears on the last day of each March, June,
September and December and on the Expiration Date or such earlier date as the
Total Commitment shall terminate as provided herein, commencing on the first of
such dates to occur after the Closing Date.
(b) The Company shall also pay to Banque Paribas the fees set
forth in the separate letter agreement dated August 1, 1995 between the Company
and Banque Paribas.
SECTION 2.7. Security. The Obligations shall be
secured as provided in the Security Documents, and the rights and
remedies of the Lenders contained therein shall be exercised as
provided in the Intercreditor Agreement.
SECTION 2.8. Payments. (a) The Company shall make each payment
hereunder and under the Notes not later than 11:00 a.m., New York time, on the
day when due in United States dollars to the Agent at its address set forth in
Section 9.2, in immediately available funds. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal,
interest or fees ratably (other than amounts payable pursuant to Sections 9.4
and other amounts paid for the account of a specific Lender) to the Lenders and
like funds relating to the payment of any other amount payable to any Lender to
such Lender, in each case to be applied in accordance with the terms of this
Agreement.
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(b) Unless the Agent receives notice from the Company before
the date on which any payment is due to the Lenders hereunder that the Company
will not make such payment in full, the Agent may assume that the Company has
made such payment in full to the Agent on such date, and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due to such Lender. If and to the
extent that the Company has not so made such payment in full to the Agent, each
Lender shall repay to the Agent forthwith on demand such amount distributed to
such Lender, together with interest thereon for each day from the date such
amount is distributed to such Lender until the date on which such Lender repays
such amount to the Agent, at the Federal Funds Rate until (and including) the
third (3rd) Business Day after demand is made and thereafter at the Adjusted
Base Rate.
(c) All payments due by the Company to the Agent or
any of the Lenders under the Credit Documents will be made
without setoff, counterclaim or other deduction.
SECTION 2.9. Computation of Interest and Fees. Interest on
LIBOR Rate Loans shall be computed on the basis of a year of three hundred and
sixty (360) days and paid for the actual number of days elapsed. Interest on
Adjusted Base Rate Loans and all fees shall be computed on the basis of a year
of three hundred and sixty-five (365) or three hundred and sixty-six (366) days,
as applicable, and paid for the actual number of days elapsed. Interest on
Adjusted Base Rate Loans and fees for any period shall be calculated from and
including the first day thereof to but excluding the last day thereof. Interest
on LIBOR Rate Loans for any Interest Period shall be calculated from and
including the first day thereof to and including the last day thereof. Each
determination by the Agent of an interest rate hereunder shall be conclusive
(absent manifest error).
SECTION 2.10. Payments on Non-Business Days. Whenever any
payment hereunder or under any Note is stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or fees (as the case may be); provided, however, that any
payment with respect to any LIBOR Rate Loan stated to be due on a day other than
a Eurodollar Business Day shall be made on the immediately preceding Eurodollar
Business Day. If no due date is specified for the payment of any amount payable
by the Company hereunder, such amount shall be due and payable not later than
the later to occur of (a) ten (10) Business Days after receipt by the Company of
written demand from the Agent for payment thereof and (b) two (2) Business Days
following the next Monthly Transfer Date following such written demand.
SECTION 2.11. Sharing of Payments, Etc. If any Lender obtains
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of its Commitment or the Loans made by it
(other than pursuant to Section 9.4 and any other payment appropriately made for
the
12
account of a specific Lender hereunder), in excess of its ratable share of
payments on account of the Commitments or the Loans obtained by all of the
Lenders, then such Lender shall be deemed to have received such payment as agent
for, and on behalf of, all the Lenders and shall immediately advise the Agent of
the receipt of such funds and promptly transmit the amount thereof to the Agent
for prompt distribution among the Lenders as provided for in this Agreement and
such funds transmitted to the Agent shall be credited as a payment by the
Company under this Agreement; provided, however, that such Lender so
transmitting funds to the Agent shall not be deemed to have received, and the
Company shall be deemed not to have made to such Lender (to the extent funds are
transmitted to the Agent), any payment transmitted to the Agent by such Lender
pursuant to this Section 2.11; provided further, however, that if all or any
portion of such payment is thereafter recovered from such Lender, such credited
payment shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.
SECTION 2.12. Evidence of Debt. (a) The indebtedness of the
Company resulting from all Loans made by each Lender from time to time shall be
evidenced by an appropriately completed and executed Revolving Promissory Note
substantially in the form of Exhibit A (each a "Note"), delivered by the Company
to each Lender.
(b) The Agent, on behalf of the Company, shall maintain at the
address of the Agent referred to in Section 9.2 a copy of each Commitment
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Company, the Agent and the Lenders may (and, in the case of any Loan or
other obligation hereunder not evidenced by a Note, shall) treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Credit Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Company
or any Lender at any reasonable time and from time to time upon reasonable prior
notice. The books and accounts of the Agent shall be conclusive evidence (absent
manifest error) of the amounts of all Loans, fees, interest and other amounts
advanced, due, outstanding, payable or paid pursuant to this Agreement or any
Note.
SECTION 2.13. Increased Costs. (a) In the event that any
requirement of law or any change therein or in the interpretation or application
thereof or compliance by any Lender with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority:
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(i) does or shall subject any Lender to any tax (except to
the extent such tax is the subject of the agreements set forth in
Section 2.14) of any kind whatsoever with respect to this Agreement,
any Note or any payments with respect to LIBOR Rate Loans made by it,
or changes the basis of taxation of payments to such Lender of
principal, fees, interest or any other amount payable hereunder (except
for changes in the rate of tax on the overall net income or capital of
such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the LIBOR Rate; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit hereunder or to reduce any amount
receivable hereunder, in each case in respect of its LIBOR Rate Loans, then, in
any such case, the Company shall pay to such Lender, no later than the later to
occur of (A) 10 Business Days after demand by such Lender (through the Agent) in
accordance with paragraph (c) of this Section and (B) two (2) Business Days
after the next Monthly Transfer Date following such written demand, any
additional amounts necessary to compensate such Lender for such additional costs
or reduced amount receivable.
(b) In the event that any Lender shall have determined that
the adoption after the date hereof of any law, rule, guideline or regulation
regarding capital adequacy, or any change after the date hereof in any existing
or future law, rule, guideline or regulation regarding capital adequacy or in
the interpretation or application thereof, or compliance by any Lender or any
corporation controlling such Lender with any request or directive made or
adopted after the date hereof regarding capital adequacy (whether or not having
the force of law) from any central bank or Governmental Authority, does or shall
have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, no later than the
later to occur of (i) 10 Business Days after submission by such Lender to the
Company (through the Agent) of a written request therefor in accordance with
paragraph (c) of this subsection and (ii) two (2) Business Days after the next
Monthly Transfer Date following such written demand, the
14
Company shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.
(c) A Lender intending to make a claim pursuant to paragraph
(a) or (b) of this Section shall deliver to the Company through the Agent, as
soon as practicable after becoming aware of the circumstances giving or which
shall give rise to such claim, notice of such Lender's intention to make a
claim, specifying the event by which it is or shall be entitled to make such
claim and setting out in reasonable detail the expected basis and computation of
such claim (and the Agent shall promptly upon receipt thereof deliver such
notice to the Company); provided that no claim shall be made by any Lender, and
the Company shall not be required to indemnify any Lender, with respect to any
cost, increased cost or other liability or reduction described in paragraph (a)
or (b) of this Section which is incurred by such Lender and which is payable, or
which is applicable to any period, more than 90 days prior to the date the
Company is first notified by the Agent pursuant to the foregoing provisions of
this paragraph (c) that such Lender is incurring such costs, other liability or
reduction, as the case may be.
(d) A certificate as to any additional amounts payable to any
Lender pursuant to this Section 2.13, submitted by such Lender to the Company
and showing in reasonable detail that such amounts were computed in accordance
with this Section 2.13, shall be conclusive in the absence of manifest error.
The provisions of this Section 2.13 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
SECTION 2.14. Taxes. (a) All payments made by the Company
under this Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding, in the case of the Agent and each Lender, net
income and franchise taxes imposed on the Agent or such Lender by the
jurisdiction under the laws of which the Agent or such Lender is organized or
any political subdivision or taxing authority thereof or therein, or by any
jurisdiction in which such Lender's lending office, is located or any political
subdivision or taxing authority thereof or therein (all such non- excluded
taxes, levies, imposts, deductions, charges or withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Agent or any Lender hereunder or under the Notes, the amounts so
payable to the Agent or such Lender shall be increased to the extent necessary
to yield to the Agent or such Lender (after payment of all Taxes, including
penalties and expenses related thereto) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Notes. Whenever any Taxes are payable by the Company, as promptly as
possible thereafter, the Company shall send to the Agent for its own account a
certified copy of an original official receipt
15
received by the Company showing payment thereof. If the Company fails to pay any
Taxes when due to the appropriate taxing authority or fails to remit to the
Agent the required receipts or other required documentary evidence, the Company
shall indemnify the Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of such
failure.
(b) Each Lender shall, prior to the Closing Date (or, if a
Lender has become a party hereto pursuant to Section 9.9, the date upon which
such Lender becomes a party hereto), deliver to the Agent and the Company (i)
either (A) a letter stating that it is incorporated under the laws of the United
States of America or a state thereof or (B) if it is not so incorporated, either
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, certifying in each case
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes or, in the
case of a Lender claiming exemption from United States withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" by the Company under this Agreement, an annual certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any Governmental Authority,
any application made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements, is not a 10-percent shareholder
of the Company within the meaning of Section 881(c)(3)(B) of the Code and is not
a controlled foreign corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(C) of the Code and (ii) an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax. Each such
Lender shall deliver to the Company and the Agent two further copies of any such
form, or successor applicable forms, or other manner of certification, as the
case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company, and such extensions or
renewals thereof as may reasonably be requested by the Company, to the effect
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required that renders any such forms inapplicable or that would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Company that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax or establishing an exemption from United States backup withholding
tax. The provisions of this Section 2.14(b) shall apply to any successor
16
holder of a Note, including without limitation, Purchasing Lenders and
Participants pursuant to Section 9.9.
(c) Notwithstanding anything to the contrary contained in this
Section 2.14, the Company shall not be required to indemnify or reimburse any
Lender who has failed to make available to the Agent its ratable portion of any
Borrowing on the date required pursuant to this Agreement, after the Agent has
made written demand upon such Lender for such payment, for any additional
documentary stamp taxes or intangibles taxes incurred by such Lender solely as a
result of such failure.
SECTION 2.15. Illegality. Notwithstanding any other provision
of this Agreement, if any Regulatory Change shall make it unlawful for any
Lender to make or maintain LIBOR Loans as contemplated by this Agreement, such
Lender shall give telex, telecopy or telephonic notice thereof to the Company
and the Agent (specifying the reason for such illegality) as soon as practicable
and (a) the commitment of such Lender hereunder to make LIBOR Rate Loans,
continue LIBOR Rate Loans as such and convert Adjusted Base Rate Loans to LIBOR
Rate Loans shall forthwith be suspended until such time as such Lender may again
lawfully make and maintain LIBOR Rate Loans, and (b) such Lender's LIBOR Rate
Loans then outstanding, if any, shall be converted automatically to Adjusted
Base Rate Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period (determined by its sole
judgment) as required by law. If, as a result of any such Regulatory Change, any
such conversion of a LIBOR Rate loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Company shall pay
to such Lender such amounts, if any, as might be required pursuant to Section
2.5(d) with respect to such conversion.
SECTION 2.16. Inability to Determine Interest Rate. In the
event that, prior to the first day of any Interest Period, (a) the Agent shall
have determined (which determination shall be conclusive and binding upon the
Company) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not for ascertaining the LIBOR Rate for such
Interest Period or (b) the Agent shall have received notice from the Required
Lenders that the LIBOR Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their affected Loans during such Interest Period, the Agent shall
give telex, telecopy or telephonic notice thereof (stating the reason therefor)
to the Company and the Lenders as soon as practicable. If such notice is given
(i) any LIBOR Rate Loans requested to be made on the first day of such Interest
Period shall be made as Adjusted Base Rate Loans, (ii) any Loans that were to
have been converted on the first day of such Interest Period to LIBOR Rate Loans
shall be converted to or continued as Adjusted Base Rate Loans and (iii) any
outstanding LIBOR Rate Loans shall be converted, on the first day of such
Interest Period, to Adjusted Base Rate Loans. Until such notice has been
withdrawn by the Agent or, in the case of any notice given by the
17
Required Lenders pursuant to clause (b) of the first sentence of this Section,
by the Required Lenders, no further LIBOR Rate Loans shall be made or continued
as such, nor shall the Company have the right to convert Loans to LIBOR Rate
Loans.
SECTION 2.17. Transfer of Lending Office. Each Lender agrees
that, as promptly as practicable after it shall have notified the Company that
additional amounts are or will be due to such Lender under Section 2.13 or 2.14,
it will, to the extent not inconsistent with such Lender's internal policies,
make, fund or maintain its Loans through another lending office of such Lender
if as a result thereof such additional amounts would not be required to be so
paid and if, as determined by such Lender in its sole discretion, the making,
funding or maintaining of such Loans through such other lending office (i) would
be permitted by applicable requirements of law and (ii) would not adversely
affect its Loans or such Lender. The Company hereby agrees to pay all reasonable
expenses incurred by a Lender in utilizing another lending office of such Lender
as provided in this Section.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to Initial Borrowing. The
obligation of each Lender under this Agreement is subject to the satisfaction on
the Closing Date of the following conditions precedent:
(a) the Agent shall have received the following, each dated on
or before the Closing Date, in form and substance satisfactory to the
Agent and in the number of originals reasonably required by the Agent:
(i) this Agreement and the Notes, duly executed by the
Company;
(ii) the Security Documents (other than the Indenture
and the Tax-Exempt Indenture), duly executed by the parties
thereto;
(iii) the Indenture and the Tax-Exempt Indenture, duly
executed by the parties thereto and certified as to
completeness and authenticity by an Authorized Officer of
each of the Mobile Energy Parties; and
(iv) written opinions of counsel to the Company and
Mobile Energy, as to such matters as the Agent may
reasonably request;
(b) all Contracts referred to in Section 3.1(a)(i),
(ii) and (iii) remain in full force and effect;
18
(c) the Company shall have paid all accrued fees and expenses
of the Agent and the Lenders as provided in Section 9.4, to the extent
one or more statements for such fees and expenses have been presented
for payment;
(d) the conditions precedent contained in the
Underwriting Agreement dated August 15, 1995 between the
Mobile Energy Parties and Xxxxxxx, Xxxxx & Co., Bear,
Xxxxxxx & Co. and Xxxxxx Brothers Inc. shall have been
satisfied (without waiver, unless approved by the Agent),
and the initial purchase of the First Mortgage Bonds shall
have occurred; and
(e) the conditions precedent contained in the Bond Purchase
Agreement dated August 17, 1995 between Xxxxxxx Sachs & Co. and the IDB
shall have been satisfied (without waiver, unless approved by the
Agent), and the initial purchase of the Tax-Exempt Bonds shall have
occurred.
SECTION 3.2. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make a Loan on the occasion of each Borrowing,
including the initial Borrowing, is subject to the satisfaction of the following
further conditions precedent:
(a) the conditions precedent set forth in Section 3.1
shall have been satisfied (or waived by the Agent in writing
as of the Closing Date);
(b) the Agent shall have received a Notice of
Borrowing with respect to such Loan;
(c) the following statements shall be true (and the acceptance
by the Company of the proceeds of such Borrowing shall constitute a
representation and warranty by the Company that on the date of such
Borrowing such statements are true):
(i) the representations and warranties of the Mobile
Energy Parties and each Affiliate thereof incorporated by
reference into this Agreement or contained in any Security
Document are true in all material respects on and as of the
date of such Borrowing, before and after giving effect to
such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(ii) no Default or Event of Default has occurred and is
continuing; and
(d) no payment default shall have occurred and be
continuing with respect to any Senior Securities.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Mobile Energy Parties hereby makes, for the
benefit of the Agent and the Lenders, all of the representations and warranties
of the Mobile Energy Parties made in Article III of the Indenture, in the form
of such representations and warranties (including all schedules referred to
therein) as they exist on the date of this Agreement and as they may hereafter
be amended from time to time, but only to the extent that the incorporation of
any such amendments into this Agreement has been consented to by the Required
Lenders at such time. Such representations and warranties (including all
schedules referred to therein) are hereby, mutatis mutandis, incorporated herein
by reference (with appropriate substitutions, including the following: (i) the
terms "Indenture," "Securities," "Trustee" and "Holder," as they appear in
Article III of the Indenture, shall be replaced by the terms "Agreement,"
"Notes," "Agent" and "Lender," respectively, (ii) the phrase "the purchase and
ownership of the Securities" as it appears in Section 3.6(a) of the Indenture
shall be replaced by the phrase "the making of Loans", (iii) the phrase "as of
the date hereof", as it appears in Sections 3.4 and 3.6 of the Indenture, shall
be replaced by the phrase "as of each Borrowing Date", (iv) the phrase "now
pending", as it appears in Section 3.5 of the Indenture, shall be replaced by
the phrase "pending on each Borrowing Date", (vi) the phrase "the Closing Date",
as it appears in Article III of the Indenture, shall be replaced by the phrase
"each Borrowing Date", (vii) the reference to "Guaranty" in Section 3.4 of the
Indenture shall be deemed to be a reference to the Guaranty under this Agreement
and "the Security Register" in Section 10.4 shall be deemed to be a reference to
"this Agreement") as if set forth at length in this Agreement. All such
representations and warranties shall be deemed to be made on the date of each
Borrowing.
ARTICLE V
COVENANTS
So long as any Commitment is in effect or any Obligation
remains unpaid, unless compliance has been waived in writing by the Required
Lenders:
(a) all of the covenants of the Mobile Energy Parties
contained in Sections 1.15 and 10.4 and Article V of the Indenture,
together with any schedules referred to therein (in the form of such
covenants and schedules as they exist as of the date of this Agreement
and as they may hereafter be amended from time to time, but only to the
extent that the incorporation of any such amendments into this
Agreement has been consented to by the Required Lenders at such time),
are hereby, mutatis mutandis, incorporated herein by reference (with
appropriate substitutions, including the
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following: (i) the term "Indenture", as it appears in Sections 1.15 and
10.4 and Article V (other than Section 5.17) of the Indenture, shall be
replaced by the term "Agreement"; (ii) the term "Trustee", as it
appears in Article V and Section 10.4 of the Indenture, shall be
replaced by the word "Agent"; (iii) the terms "Securities" and
"Outstanding Securities", as they appear in Article V (other than
Section 5.17) of the Indenture, shall be replaced by the terms "Loans"
and "outstanding Loans", respectively; (iv) the term "Event of
Default", as it appears in Article V of the Indenture, shall include
Events of Default under this Agreement; (v) the phrase "the principal
of and premium, if any, and interest on, and all other amounts payable
in respect of, the Securities of each series in accordance with their
terms and the terms of this Indenture and of the related Series
Supplemental Indenture", as it appears in Article V of the Indenture,
shall be replaced by the phrase "all of the Obligations in accordance
with the terms of this Agreement"; (vi) the phrases "Holders" and
"Holder of a Security or an owner of a beneficial interest therein
requesting the same in writing", as they appear in Article V and
Section 10.4 of the Indenture, shall be replaced by the term "Lender"
or "Lenders" and (vii) for purposes of Section 5.17 of the Indenture
(A) references to the "Indenture" in clauses (a)(i) and (b)(i) thereof
shall be deemed to be references to the Indenture and not this
Agreement, (B) references therein to the "final maturity date of the
Outstanding Securities" shall be deemed to be references to the later
of the final maturity date of the Notes and the final maturity date of
the Outstanding Securities, (C) references therein to "any downgrading
of the rating on the Outstanding Securities" shall be deemed to be
references to any downgrading of the rating on the Outstanding
Securities and, if then rated, this Agreement and (D) the reference to
"Outstanding Securities" in the second sentence of paragraph (d)
thereof shall be deemed to be a reference to the Loans) as if set forth
at length in this Agreement, and each of the Mobile Energy Parties will
observe and perform all of such incorporated covenants;
(b) neither of the Mobile Energy Parties will terminate,
amend, replace or otherwise modify, or permit or suffer any
termination, replacement or modification of, any provision of any
Financing Document to which the Agent is not a party, unless such
termination, amendment, replacement or other modification would not, in
the reasonable opinion of the Required Lenders, be expected to reduce
the likelihood of payment on the Loans or otherwise materially and
adversely affect the Agent or the Lenders;
(c) the Company will use the proceeds of the Loans
only to pay Operation and Maintenance Costs and to pay
principal, interest, fees and other amounts payable
hereunder;
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(d) neither of the Mobile Energy Parties will permit any
collateral (except any Indenture Securities Collateral and any
Tax-Exempt Indenture Securities Collateral other than, in each case,
Shared Collateral) to secure any Senior Debt unless such collateral
also secures the Obligations or the Guaranty (as the case may be) on a
pari passu basis; and
(e) without limiting the obligations of the Company pursuant
to paragraph (a) above, the Company will deliver to the Agent all
financial information, reports, certificates, budgets, requests and
other information as it is required to deliver pursuant to Article V
and Section 10.4 of the Indenture; and
(f) the Company will promptly deliver such additional
financial and other information as any Lender may from time to time
reasonably request.
ARTICLE VI
DEFAULTS AND REMEDIES
If any one (1) of the following events (each an "Event of
Default") shall occur and be continuing:
(a) any amount due under any Credit Document shall not
be paid in full within fifteen (15) days after its due date;
or
(b) monies on deposit in the Working Capital Facility Account
on any date do not equal the required balance therefor, as provided by
Section 3.11(b) of the Intercreditor Agreement, and such deficit shall
continue for fifteen (15) or more days, unless on such date the
following conditions are satisfied: (i) the Company would be able to
borrow Loans (because of availability and satisfaction of conditions
set forth in Article III) under this Agreement in an amount equal to
the deficiency in such required balance on such date, (ii) none of the
payments made on the Senior Securities on the immediately preceding
Interest Payment Date or Principal Payment Date, as the case may be,
shall have been made from amounts transferred into the Indenture
Securities Account or the Tax-Exempt Indenture Securities Account
pursuant to Section 3.5(c), 3.6(c), 3.7(b) or 3.8(b) of the
Intercreditor Agreement and (iii) there shall be no deficiency in the
funding of the Indenture Securities Account and the Tax-Exempt
Indenture Securities Account (or any subaccounts therein), excluding,
for purpose of calculating any deficiency, any amounts transferred to
the Indenture Securities Account and the Tax-Exempt Indenture
Securities Account pursuant to Sections 3.5(c), 3.6(c), 3.7(b) and
3.8(b) of the Intercreditor Agreement; or
22
(c) the Company shall fail to perform or observe any
covenant or agreement contained in Section 5.1(b), 5.1(c) or
5.1(d) of this Agreement; or
(d) either of the Mobile Energy Parties shall fail to perform
or observe any covenant or agreement contained in Section 5.4(e),
5.7(b) (insofar as such failure relates to matters specified in Section
5.8(b)(iv)), 5.8(b) (other than clause (v) thereof), 5.10 or 5.19 of
the Indenture, as such covenants and agreements are incorporated in
paragraph (a) of Article V hereof by reference; or
(e) either of the Mobile Energy Parties shall fail to perform
or observe any covenant or agreement contained in (i) Section 5.2,
5.4(a), 5.5, 5.7(a), 5.7(b) (insofar as such failure would reasonably
be expected to have a Material Adverse Effect or relates to matters
specified in Section 5.8(b)(v)), 5.8(a), 5.8(b)(v), 5.8(c), 5.13, 5.14,
5.15 or 5.16 of the Indenture), (ii) Section 3(e), 3(f), 3(g), 3(h),
3(i) or 3(j) of the Security Agreement or (iii) Section 8, 10, 13, 14
or 15 of the Mortgage and, in the case of clause (i), (ii) and (iii)
above, such failure shall continue uncured for thirty (30) or more days
after either of the Mobile Energy Parties has knowledge thereof and as
such covenants and agreements are incorporated in Article V by
reference; or
(f) an Event of Default under the Indenture shall have
occurred and be continuing and shall not have been waived by the
Indenture Trustee until the earlier of (i) the expiration of thirty
(30) days after such occurrence and (ii) an acceleration of the
Indenture Securities; or
(g) an Event of Default under the Tax-Exempt Indenture shall
have occurred and be continuing and shall not have been waived by the
Tax-Exempt Indenture Trustee until the earlier of (i) the expiration of
thirty (30) days and (ii) an acceleration of the Tax-Exempt Indenture
Securities; or
(h) any grant of a Lien contained in the Security Documents
shall cease to be effective to grant a perfected Lien to the Collateral
Agent on the Collateral described therein with the priority created
therein; provided, however, that the Company shall have ten (10) days
from actual knowledge or constructive knowledge thereof to cure any
such cessation;
then, and in any such event, the Agent shall at the request, or may with the
consent, of the Required Lenders, by notice to the Company, (i) declare the
obligation of each Lender to make Loans to be terminated, whereupon the same
shall forthwith terminate, (ii) declare the Obligations to be forthwith due and
payable, whereupon the Obligations shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Company and (iii) subject to the
Intercreditor Agreement, take
23
any other action and exercise any right or remedy available to it, including
exercising rights and remedies under the Financing Documents and directing the
Collateral Agent to take actions and exercise rights and remedies; provided,
however, that upon the occurrence of an Event of Default specified in paragraph
(f) or (g) above that arises from an Event of Default under the Indenture
described in Section 8.1(n) thereof or arises from an Event of Default under the
Tax-Exempt Indenture described in Section 8.1(b) that arises from an Event of
Default under the IDB Lease Agreement described in Section 7.1(n) thereof,
automatically and without any notice to the Company, (A) the obligation of each
Lender to make Loans shall be terminated and (B) the Obligations shall be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Company.
ARTICLE VII
THE AGENT
SECTION 7.1. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by the Credit Documents
(including enforcement of and collection under any Credit Document or Security
Document), the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Credit Document or Security Document or applicable law. In
performing its function and duties hereunder, Agent shall act solely as the
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Company or any other party to any Project Document.
SECTION 7.2. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with any
Credit Document or Security Document, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, the Agent (a) may treat any Lender that has signed a Commitment
Transfer Supplement as the holder of the applicable portion of the Obligations;
(b) may consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation
24
to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations made in or in connection with any Credit Document
or Security Document; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
any Credit Document or Security Document on the part of the Company or any
Affiliate thereof or to inspect the property (including the books and records)
of the Company or any Affiliate thereof; (e) shall not be responsible to any
Lender for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Credit Document or Security Document or any other
instrument or document furnished pursuant hereto or thereto; and (f) shall incur
no liability under or in respect of any Credit Document or Security Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier or otherwise) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.3. Initial Lender and Affiliates. With respect to
its Commitment, the Loans made by it and the Note issued to it, the Initial
Lender shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include the
Initial Lender in its individual capacity. The Initial Lender and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Company, any Affiliate
thereof and any Person that may do business with or own securities of the
Company or any Affiliate thereof, all as if the Initial Lender were not the
Agent and without any duty to account therefor to the Lenders.
SECTION 7.4. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance on the Agent or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance on the Agent
or any other Lender and based on such documents and information as it deems
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.5. Indemnification. The Lenders severally agree to
indemnify the Agent (to the extent not promptly reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
their respective Commitments (or, if the Commitments have been fully canceled
pursuant to Section 2.1(c), the respective Commitments that were in effect
immediately prior to such cancellation), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever that may at
any time (including at any time following the payment of any
25
Obligations or termination of this Agreement) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of any Credit
Document or Security Document or any action taken or omitted by the Agent under
any Credit Document or Security Document; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limiting the foregoing, each Lender agrees to reimburse the Agent promptly upon
demand for its ratable share of any costs and expenses payable by the Company
under Section 9.4, to the extent that the Agent is not reimbursed for such costs
and expenses by the Company.
SECTION 7.6. Successor Agent. The Agent may resign at any time
by giving thirty (30) days prior written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Agent with the consent of the Company, which consent shall
not be unreasonably withheld or delayed. If no successor Agent has been so
appointed by the Required Lenders and accepted such appointment within thirty
(30) days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent with the
consent of the Company, which shall not be unreasonably withheld or delayed,
which successor Agent shall be a commercial bank organized under the laws of the
United States of America or of any state thereof and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under the Credit Documents and the other Project
Agreements. After any retiring Agent's resignation as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was acting as the Agent.
ARTICLE VIII
GUARANTY
SECTION 8.1. Guaranty of Payment and Performance. Mobile
Energy hereby (a) guarantees to the Agent and each Lender from time to time the
due and punctual payment, observance and performance of all of the Obligations
in accordance with their respective terms and when and as due (whether at a Loan
Repayment Date, by reason of acceleration or otherwise), or deemed to be due
pursuant to Section 8.2, and (b) agrees so to pay, observe or perform the same
when so due, or deemed to be due, upon demand.
SECTION 8.2. Continuance and Acceleration of
Obligations upon Certain Events. If (a) any Event of Default
specified in paragraph (f) or (g) of Article VI that arises from
26
an Event of Default under the Indenture described in Section 8.1(n) thereof or
arises from an Event of Default under the Tax- Exempt Indenture described in
Section 8.1(b) that arises from an Event of Default under the IDB Lease
Agreement described in Section 7.1(n) thereof shall have occurred and be
continuing, (b) any injunction, stay or the like that enjoins any acceleration,
or demand for the payment, observance or performance, of any Obligations that
would otherwise be required or permitted under the Security Documents shall
become effective or (c) any Obligations shall be or be determined to be or
become discharged, disallowed, invalid, illegal, void or otherwise unenforceable
(whether by operation of any present or future law or by order of any
Governmental Authority) against the Company then (i) such Obligations shall, for
all purposes of this Agreement, be deemed (A) in the case of clause (c) above,
to continue to be outstanding and in full force and effect notwithstanding the
unenforceability thereof against the Company and (B) if such is not already the
case, to have thereupon become immediately due and payable and to have commenced
bearing interest at the rate equal to the Adjusted Base Rate plus two percent
(2%) and (ii) the Agent and each Lender may, with respect to such Obligations,
exercise all of the rights and remedies hereunder that would be available to it
during an Event of Default.
SECTION 8.3. Recovered Payments. The Obligations shall be
deemed not to have been paid, observed or performed, and Mobile Energy's
obligations under the Guaranty in respect thereof shall continue and not be
discharged, to the extent that any payment, observance or performance thereof by
the Company or any other guarantor, or out of the proceeds of any collateral, is
recovered from or paid over by or for the account of the Agent or and Lender for
any reason, including as a preference or fraudulent transfer or by virtue of any
subordination (whether present or future or contractual or otherwise) of the
Obligations, whether such recovery or payment over is effected by any judgment,
decree or order of any Governmental Authority, by any plan of reorganization or
by settlement or compromise by the Agent or any Lender (whether or not consented
to by either of the Mobile Energy Parties or any other guarantor) of any claim
for any such recovery or payment over. Mobile Energy hereby expressly waives the
benefit of any applicable statute of limitations and agrees that it shall be
liable hereunder with respect to any Obligation whenever such a recovery or
payment over thereof occurs.
SECTION 8.4. Evidence of Obligations. The records of the Agent
shall be conclusive evidence (absent manifest error) of the Obligations and of
all payments, observances and performances in respect thereof.
SECTION 8.5. Binding Nature of Certain Adjudications. Mobile
Energy shall be conclusively bound by the adjudication in any action or
proceeding, legal or otherwise, involving any controversy arising under, in
connection with, or in any way related to, any of the Obligations, and by a
judgment, award or decree entered therein, if Mobile Energy shall have had the
27
right, or shall have been given the opportunity, to participate in such action
or proceeding and shall have been given notice of such action or proceeding in
time to exercise such right or avail itself of such opportunity.
SECTION 8.6. Nature of Mobile Energy's Obligations. Mobile
Energy's obligations hereunder (a) are absolute and unconditional, (b) are
unlimited in amount, (c) constitute a guaranty of payment and performance and
not a guaranty of collection, (d) are as primary obligor and not as a surety
only, (e) shall be a continuing guaranty of all present and future Obligations
and all promissory notes and other documentation given in extension or renewal
or substitution for any of the Obligations and (f) shall be irrevocable.
SECTION 8.7. No Release of Mobile Energy. The obligations of
Mobile Energy under this Guaranty shall not be reduced, limited or terminated,
nor shall Mobile Energy be discharged from any thereof, for any reason
whatsoever (other than, subject to Sections 8.3 and 8.12, the payment,
observance and performance of the Obligations), including (and whether or not
the same shall have occurred or failed to occur once or more than once and
whether or not Mobile Energy shall have received notice thereof): (a) (i) any
increase in the principal amount of, or interest rate applicable to, (ii) any
extension of the time of payment, observance or performance of, (iii) any other
amendment or modification of any of the other terms and provisions of, (iv) any
release, composition or settlement (whether by way of acceptance of a plan of
reorganization or otherwise) of, (v) any subordination (whether present or
future or contractual or otherwise) of or (vi) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of, in each case the
Obligations; (b) (i) any failure to obtain, (ii) any release, composition or
settlement of, (iii) any amendment or modification of any of the terms and
provisions of, (iv) any subordination of or (v) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of, in each case any
guaranties of the Obligations; (c) (i) any failure to obtain or any release of,
(ii) any failure to protect or preserve, (iii) any release, compromise,
settlement or extension of the time of payment of any obligations constituting,
(iv) any failure to perfect or maintain the perfection or priority of any Lien
upon, (v) any subordination of any Lien upon or (vi) any discharge,
disallowance, invalidity, illegality, voidness or other unenforceability of any
Lien or intended Lien upon, in each case any collateral now or hereafter
securing the Obligations or any other guaranties thereof; (d) any termination of
or change in any relationship between Mobile Energy and the Company, including
any such termination or change resulting from a change in the ownership of
Mobile Energy or the Company or from the cessation of any commercial
relationship between Mobile Energy and the Company; (e) any exercise of, or any
election not or failure to exercise, delay in the exercise of, waiver of, or
forbearance or other indulgence with respect to, any right, remedy or power
available to the Agent or any Lender, including (i) any election
28
not or failure to exercise any right of setoff, recoupment or counterclaim, (ii)
any election of remedies effected by the Agent or any Lender, including the
foreclosure upon any real estate constituting collateral, whether or not such
election affects the right to obtain a deficiency judgment and (iii) any
election by the Agent or any Lender in any proceeding under the Bankruptcy Code
of the application of Section 1111(b)(2) of the Bankruptcy Code; and (f) any
other act or failure to act or any other event or circumstance that (i) varies
the risk of Mobile Energy under this Guaranty or (ii) but for the provisions
hereof, would, as a matter of statute or rule of law or equity, operate to
reduce, limit or terminate the obligations of Mobile Energy hereunder or
discharge Mobile Energy from any thereof.
SECTION 8.8. Certain Waivers. Mobile Energy waives (a) any
requirement, and any right to require, that any right or power be exercised or
any action be taken against the Company, any other guarantor or any collateral
for the Obligations or any guaranty thereof, (b) all defenses to, and all
setoffs, counterclaims and claims of recoupment against, the Obligations that
may at any time be available to the Company or any other guarantor, (c) (i)
notice of acceptance of and intention to rely on this Guaranty, (ii) notice of
any Loans hereunder and of the incurrence or renewal of any other Obligations,
(iii) notice of any of the matters referred to in Section 8.7 and (iv) all other
notices that may be required by Law or otherwise to preserve any rights against
Mobile Energy under this Guaranty, including any notice of default, demand,
dishonor, presentment and protest, (d) diligence, (e) any defense based upon,
arising out of or in any way related to (i) any claim that any sale or other
disposition of any collateral for the Obligations or any guaranty thereof was
not conducted in a commercially reasonable fashion or that a public sale, should
the Agent, any Lender or the Collateral Agent (as the case may be), have elected
to so proceed, was, in and of itself, not a commercially reasonable method of
sale, (ii) any claim that any election of remedies by the Agent, any Lender or
the Collateral Agent (as the case may be), including the exercise by the Agent,
any Lender or the Collateral Agent (as the case may be) of any rights against
any collateral, impaired, reduced, released or otherwise extinguished any right
that Mobile Energy might otherwise have had against the Company or any other
guarantor or against any collateral, including any right of subrogation,
exoneration, reimbursement or contribution or right to obtain a deficiency
judgment, (iii) any claim based upon, arising out of or in any way related to
any of the matters referred to in Section 8.7 and (iv) any claim that this
Guaranty should be strictly construed against the Agent or any Lender and (f)
ALL OTHER DEFENSES UNDER APPLICABLE LAW THAT WOULD, BUT FOR THIS CLAUSE (f), BE
AVAILABLE TO MOBILE ENERGY AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF
ITS OBLIGATIONS HEREUNDER.
SECTION 8.9. Independent Credit Evaluation. Mobile
Energy has independently, and without reliance on any information
supplied by the Agent or any Lender, taken, and will continue to
take, whatever steps it deems necessary to evaluate the financial
29
condition and affairs of the Company, and neither the Agent nor any Lender shall
have any duty to advise Mobile Energy of information at any time known to it
regarding such financial condition or affairs.
SECTION 8.10. Subordination of Rights Against Company, Other
Guarantors and Collateral. All rights that Mobile Energy may at any time have
against the Company, any other guarantor or any collateral for the Obligations
or any guaranty thereof (including rights of subrogation, exoneration,
reimbursement and contribution and whether arising under Law or otherwise), and
all obligations that the Company or any other guarantor may at any time have to
Mobile Energy, Mobile Energy's obligations hereunder or any payment made are
hereby expressly subordinated to the prior payment, observance and performance
in full of the Obligations and any other such Guaranty. Mobile Energy shall not
enforce any of the rights, or attempt to obtain payment or performance of any of
the obligations, subordinated pursuant to this Section 8.10 until the
Obligations have been paid, observed and performed in full, except that such
prohibition shall not apply to routine acts, such as the giving of notices and
the filing of continuation statements, necessary to preserve any such rights. If
any amount shall be paid to or recovered by Mobile Energy (whether directly or
by way of setoff, recoupment or counterclaim) on account of any right or
obligation subordinated pursuant to this Section 8.10, such amount shall be held
in trust by Mobile Energy for the benefit of the Agent and the Lenders, not
commingled with any of Mobile Energy's other funds and forthwith paid over to
the Agent, in the exact form received, together with any necessary endorsements,
to be applied and credited against, or held as security for, the Obligations and
the obligations of Mobile Energy hereunder. Notwithstanding the foregoing,
nothing herein shall restrict or otherwise limit the ability of Mobile Energy to
receive monies distributed thereto by the Collateral Agent pursuant to Section
3.11 of the Intercreditor Agreement, which monies need not be held in trust by
Mobile Energy.
SECTION 8.11. Payments by Mobile Energy. (a) All
payments due to the Agent or any Lender hereunder shall be made
to the Agent or such Lender at the address indicated in Section
9.2. A payment shall not be deemed to have been made on any day
unless such payment has been received by the Agent or the Lender
(as the case may be) at the required place of payment, in lawful
money of the United States of America in funds immediately
available to the Agent or such Lender (as the case may be).
(b) All payments due the Agent or any Lender under this
Guaranty, and all of the other terms, conditions, covenants and agreements to be
observed and performed by Mobile Energy under this Guaranty, shall be made,
observed or performed by Mobile Energy without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether, in any case, in respect of an obligation owed by the
Agent or any Lender to Mobile Energy, the Company or
30
any other guarantor and, in the case of a counterclaim, whether sounding in
tort, contract or otherwise) or tax.
(c) Mobile Energy hereby authorizes the Agent and each Lender,
if and to the extent any amount payable by Mobile Energy under this Guaranty is
not otherwise paid when due, to charge such amount against any or all of the
accounts of Mobile Energy with the Agent or such Lender or any of its Affiliates
(whether maintained at a branch or office located within or without the United
States), with Mobile Energy remaining liable for any deficiency.
(d) Whenever any payment to the Agent or any Lender under this
Article VIII would otherwise be due (except by reason of acceleration) on a day
that is not a Business Day, such payment shall instead be due on the next
succeeding Business Day; provided, however, that any payment with respect to any
LIBOR Rate Loan stated to be due on a day other than a Eurodollar Business Day
shall be made on the immediately preceding Eurodollar Business Day. If the date
any payment hereunder is due is extended (whether by operation of this
Agreement, Law or otherwise), such payment shall bear interest for such extended
time at the rate of interest applicable hereunder.
SECTION 8.12. Continuance of Guaranty; Survival. The
obligations of Mobile Energy and the rights of the Agent and the Lenders under
this Article VIII shall continue in full force and effect until the payment,
observance and performance in full of the Obligations, subject to Section 8.3.
SECTION 8.13. Assignments and Participations; Assignments.
Mobile Energy may not assign any of its rights or obligations under this
Guaranty without the prior written consent of the Agent, and no assignment of
any such obligation shall release Mobile Energy therefrom unless the Agent shall
have consented to such release in a writing specifically referring to the
obligation from which Mobile Energy is to be released.
SECTION 8.14. Benefit and Enforcement. This Guaranty is given
for the benefit of the Agent and each Lender, each of whom shall be entitled in
the same manner as set forth herein to enforce performance and observance of
this Guaranty.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any Note, or consent to any departure by either
of the Mobile Energy Parties therefrom, shall be effective unless in writing and
signed or consented to (in writing) by the Required Lenders (and, in the case of
amendments, the Mobile Energy Parties), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment,
31
waiver or consent shall, unless in writing and signed or consented to (in
writing) by all of the Lenders, do any of the following: (a) waive any of the
conditions specified in Article III; (b) increase the Commitments of the Lenders
or subject the Lenders to any additional obligations; (c) reduce the principal
of, or interest on, the Loans or any fees or other amounts payable hereunder;
(d) postpone any date fixed for (i) payment of principal of, or interest on, the
Loans or (ii) payment of fees or other amounts payable hereunder; (e) change the
percentage of the Commitments or of the Loans outstanding, or the number of
Lenders, required for the Lenders or any of them to take any action hereunder;
or (f) amend this Section 8.1.
SECTION 9.2. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including by
telecopier) and shall be mailed, telecopied or delivered; if to the Company, to
it at 000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention:
President, telephone: 000-000-0000; telecopier: 000-000-0000, with a copy to it
at X.X. Xxx 0000, 000 Xxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, Attention: Vice
President and General Manager, telephone: 000-000-0000, telecopier:
000-000-0000; if to Mobile Energy, to it at 000 Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, Attention: President, telephone: 000-000-0000;
telecopier: 000-000-0000; if to any Lender other than the Initial Lender, to it
at the address or telecopier number set forth below its name in the Commitment
Transfer Supplement by which it became a party hereto; if to the Agent or
Initial Lender, to it at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telephone
000-000-0000, telecopier 000-000-0000, Attention: Project Finance Group; or, as
to each party, to it at such other address or telecopier number as designated by
such party in a written notice to the other parties. All such notices and
communications shall be deemed received, (a) if personally delivered, upon
delivery, (b) if sent by first class mail, on the third Business Day following
deposit into the mails and (c) if sent by telecopier, upon acknowledgment of
receipt thereof by the recipient, except that notices and communications to the
Agent pursuant to Article II or VII shall not be effective until received by the
Agent.
SECTION 9.3. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof, and no single or partial exercise
of any such right shall preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.4. Costs and Expenses. Whether or not any Loans are
made hereunder, the Company shall pay to the Agent on demand (a) all reasonable
costs and expenses of the Agent and the Lenders in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
including the reasonable fees and out-of-pocket expenses of counsel for the
Agent and the Lenders with respect thereto and
32
with respect to advising the Agent and the Lenders as to their rights and
responsibilities, or the perfection, protection or reservation of rights or
interests, under this Agreement, the Notes, the Security Documents and the other
documents to be delivered hereunder and (b) all reasonable costs and expenses of
the Agent and the Lenders (including the reasonable fees and out-of-pocket
expenses of counsel for the Agent and the Lenders) in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes, the Security Documents and the other documents to be
delivered hereunder, whether in any action, suit or litigation, any bankruptcy,
insolvency or similar proceeding or otherwise. The Company will pay, indemnify,
and hold each Lender and the Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions (whether sounding
in contract, in tort or on any other ground), judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of, or in any other way
arising out of or relating to, this Agreement, the Notes, the other Financing
Documents or the use of the proceeds of the Loans or any other documents
contemplated by or referred to herein or therein or any action taken or omitted
to be taken by any Lender or the Agent with respect to any of the foregoing,
provided, however, that the Company shall not be required to indemnify the Agent
or any Lender for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent caused
by the Agent's or such Lender's willful misconduct or gross negligence. In
addition, the Company shall pay any and all stamp and other taxes and fees
payable or determined to be payable in connection with the execution, delivery,
filing and recording of any of the aforementioned documents, and the Company
agrees to indemnify and hold the Agent and the Lenders harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay any of the foregoing.
SECTION 9.5. Application of Monies. If any sum paid or
recovered in respect of the Obligations is less than the amount then due, the
Agent may apply that sum to principal, interest, fees or any other amount due
under this Agreement in such proportions and order and generally in such manner
as the Agent shall determine.
SECTION 9.6. Severability. Any provision of this Agreement
that is prohibited, unenforceable or not authorized in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
SECTION 9.7. Non-recourse Liability. Satisfaction of
the Obligations (including those under the Guaranty) shall be had
solely from the assets of the Mobile Energy Parties. No recourse
shall be had to (a) any assets or properties of any Members
33
(other than Mobile Energy as provided in Article VIII) or of the stockholders of
Mobile Energy, other than their respective interests in the Collateral, (b) any
Member (other than Mobile Energy as provided in Article VIII) or (c) any
Affiliate, incorporator, stockholder, partner, member, officer, director or
employee of any Member or of the Company (other than the Company, Mobile Energy
and, in respect of any Southern Guaranty on deposit in the Maintenance Reserve
Account or the Distribution Account, Southern) and, in the event of
non-performance by either of the Mobile Energy Parties of any of the
Obligations, no judgment for any deficiency upon the Obligations shall be
obtainable by the Lenders or the Agent against any Member (other than Mobile
Energy as provided in Article VIII) or any Affiliate, incorporator, stockholder,
partner, member, officer, director or employee of any Member or of the Company
(other than the Company, Mobile Energy and, in respect of any Southern Guaranty
on deposit in the Maintenance Reserve Account or the Distribution Account,
Southern) (other than Mobile Energy as provided in Article VIII and, in respect
of any Southern Guaranty on deposit in the Maintenance Reserve Account or the
Distribution Account, Southern). Notwithstanding anything in this Section 9.7 to
the contrary (i) satisfaction of the Obligations shall be non-recourse to any
monies or other assets of Mobile Energy acquired through or on account of its
interests in the Southern Master Tax Sharing Agreement to the extent such assets
are not commingled with any of Mobile Energy's other assets or any monies or
assets of the Company, (ii) nothing contained herein or in the Notes shall limit
or otherwise prejudice in any way the right of the Agent, the Collateral Agent
or any Lender to proceed against any Person whomsoever (A) with respect to the
enforcement of such Person's obligations under any Project Document (including
the Guaranty and any Southern Guaranty) to which such Person is a party or to
proceed against such Person with respect to the enforcement of such obligations
or (B) to the extent necessary to realize upon the Collateral granted hereunder
or under the Security Documents and (iii) any limitations of liability herein
shall not apply to any Person if and to the extent that such Person commits
fraud or wilful misrepresentations, including those contained in Officer's
Certificates issued from time to time.
SECTION 9.8. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Company, the Agent, the Lenders and their
respective successors and permitted assigns, except that the Company shall not
have the right to assign any of its rights and obligations hereunder without the
prior written consent of all of the Lenders.
SECTION 9.9. Assignments and Participations. (a) Any
------------------------------
Lender may at any time (with the prior written consent of the
Company, unless such sale is to a Lender or an Affiliate of a
Lender, such consent not to be unreasonably withheld or delayed,
the prior written consent of the Agent, such consent not to be
unreasonably withheld or delayed, and the prior written consent
of the Initial Lender) sell to one (1) or more banks or other
entities (a "Purchasing Lender") all or any part of its rights
34
and obligations under the Credit Documents (which, except in the case of an
assignment to a Person that, immediately before such assignment, was a Lender,
shall be equal to at least $2,500,000) pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender, such transferor Lender, the
Agent and the Initial Lender (and, in the case of a Purchasing Lender that is
not then a Lender or an Affiliate thereof, by the Company). Upon (i) the
execution of such Commitment Transfer Supplement and (ii) delivery of a copy
thereof to the Company and payment of the amount of the purchase price for its
participation to such transferor Lender, such Purchasing Lender shall for all
purposes be a Lender party to this Agreement and shall have all the rights and
obligations of a Lender under this Agreement, to the same extent as if it were
an original party hereto with the Commitment as set forth in such Commitment
Transfer Supplement, which shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Lender and the resulting adjustment of Commitments arising from the
purchase by such Purchasing Lender of all or a portion of the rights and
obligations of such transferor Lender under the Credit Documents. Upon the
consummation of any transfer pursuant to this Section 9.9, the transferor
Lender, the Agent and the Company shall make appropriate arrangements so that,
if required, a replacement Note is issued to such transferor Lender and a new
Note or, as appropriate, a replacement Note, is issued to such Purchasing
Lender, in each case, in principal amounts reflecting their Commitments.
(b) Any Lender may, from time to time, sell or offer to sell
participating interests in any Loans owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interests and obligations of
such Lender hereunder, to one (1) or more banks or other entities (each, a
"Participant"), on such terms and conditions as may be determined by the selling
Lender, without the consent of the Company. The selling Lender shall notify the
Company of the identity of each Participant within thirty (30) days following
such participation; provided, however, that failure to give such notice within
such thirty (30) day period will not affect the validity or effectiveness of
such participation. The grant of such participation shall not relieve any such
Lender of its obligations, or impair the rights of any such Lender, hereunder.
In the event of any such sale by a Lender of a participating interest to a
Participant, such Lender shall remain solely responsible for the performance of
such Lender's obligations under this Agreement, such Lender shall remain the
holder of any such Note for all purposes under this Agreement, and the Company,
the Agent and the Lenders will continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and such Lender shall retain the sole right and responsibility to
exercise the rights of such Lender, and enforce the obligations of the Company,
including the right to approve any amendment, modification, supplement or waiver
of any provision of any Credit Document and the right to take action under
Article VI hereof and such Lender shall not grant any such Participant any
voting rights or veto power over
35
any such action by such Lender under this Agreement (provided that such Lender
may agree not to consent to any modification, amendment or waiver of this
Agreement, without the consent of the Participant, that would alter the
principal of or interest on the Loans, postpone the date fixed for any payment
of principal of or interest thereon, release any Collateral or extend the
Scheduled Expiration Date). No Participant shall have any rights under this
Agreement to receive payment of principal, interest or any other amount except
through a Lender and as provided in this Section 9.9. The Company also agrees
that each Participant shall be entitled to the benefits of Sections 2.5(d),
2.13, 2.14, 2.15 and 2.16 with respect to its participation granted hereunder,
provided that no Participant shall be entitled to receive any greater amount
pursuant to such Sections than the Lender transferring such participation would
have been entitled to receive in respect of the amount of the participation
transferred to such Participant had no such transfer occurred.
(c) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.9, disclose to the Purchasing Lender or Participant or proposed Purchasing
Lender or Participant any information relating to the Company furnished to such
Lender by or on behalf of the Company.
(d) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
(e) In the event any Lender notifies the Company pursuant to
Section 2.15 that it may no longer make or maintain LIBOR Rate Loans or demands
payment of additional amounts pursuant to Section 2.13 or 2.14, the Company, at
its expense, at any time within 180 days after such demand, so long as no
Default or Event of Default shall have occurred and be continuing, may require
such Lender to sell in accordance with the foregoing provisions of this Section
9.9, at par plus accrued interest, without recourse or warranty and pursuant to
a Commitment Transfer Supplement, its rights and obligations hereunder
(including its Commitment and the Loans at the time owing to it and the Notes
held by it) to a Qualified Financial Institution specified by the Company that
is willing to purchase such rights and obligations on the terms hereof and is
reasonably acceptable to the Agent, provided that (i) such assignment shall not
conflict with or violate any requirement of law applicable to or binding on such
assigning Lender, and (ii) the Company shall have paid to such assigning Lender
all amounts (other than interest) accrued and owing hereunder to it (including,
without limitation, amounts owing pursuant to Sections 2.5(d), 2.13 and 2.14).
Notwithstanding anything set forth above in this subsection 9.9(e) to the
contrary, the Company shall not be entitled to require an assignment under this
Section 9.9(e) with respect to any Lender demanding payment under Section 2.13
or 2.14 if (x) prior to any such requirement by the Company, such Lender shall
have changed its lending office so as to eliminate the incurrence of the costs
in respect of which such payment was
36
demanded or (y) the circumstances giving rise to such Lender's demand for
payment of such additional amounts are applicable to all the Lenders. As used
herein, "Qualified Financial Institution" means (a) any bank that has capital,
surplus and undivided profits of at least $500,000,000 and that is either
organized under the laws of the United States or any state thereof or has a
branch office or agency located in the United States, and (b) any other bank or
financial institution approved by the Agent and the Company (which approval will
not be unreasonably withheld).
SECTION 9.10. Indemnification. Each of the Mobile Energy
Parties agrees to indemnify and hold harmless the Agent and each Lender and each
of their respective officers, directors, employees, agents and Affiliates (each,
an "Indemnified Party") from and against any and all direct (as opposed to
consequential) claims, damages, losses, liabilities, costs and expenses
whatsoever that an Indemnified Party may incur (or that may be claimed against
an Indemnified Party by any Person) arising under, relating to or resulting from
any demand, claim, suit, proceeding or action of any kind or nature whatsoever
of any third party (including without limitation, any holder of any securities
issued on behalf of the Company, any trustee on behalf of any such holders or
any underwriter, placement agent or remarketing agent for such securities)
against or affecting an Indemnified Party (1) with respect to the execution,
delivery, enforcement and performance of this Agreement, the other Project
Documents, any other documents related to the Energy Complex entered into by the
Company or the transactions contemplated hereby or thereby, (2) with respect to
the offering and sale of any securities, (3) with respect to a default by the
Company in the performance of its respective agreements, rights or obligations
contained in this Agreement, the other Project Documents or and any other
documents related to the Project entered into by the Company, or any other
instrument or agreement entered into by the Company in connection herewith or
therewith, (4) resulting from injury to or death of any person whomsoever, and
damage to or loss or destruction of any property whatsoever, which in any way
arises in connection with, is incidental to or is caused by the construction or
operation of the Energy Complex or any activity on or near the Site or the
Energy Complex, (5) in any way relating to or arising out of the Project, or the
manufacture, financing, construction, purchase, acceptance, rejection,
ownership, acquisition, delivery, nondelivery, preparation, installation,
storage, maintenance, repair, transfer of title, abandonment, possession,
rental, use, operation, environmental clean-up, condition, sale, return,
importation, exportation or other application or disposition of all or any part
of any interest in the Site or the Energy Complex, (6) resulting from the
violation of any environmental law or the existence or release of any hazardous
materials at the Site or the Energy Complex or any other property of the Company
(including, without limitation, clean-up costs, response costs, costs of
corrective action and natural resources damages) or (7) any use of the proceeds
of a Loan; provided, however, that the
37
Mobile Energy Parties shall not be required to indemnify any Indemnified Party
for any claims, damages, losses, liabilities, costs or expenses to the extent
caused by such Indemnified Party's willful misconduct or gross negligence. The
Mobile Energy Parties, upon demand by any Indemnified Party at any time, shall
also reimburse such party for any reasonable legal or other expenses incurred in
connection with investigating or defending against any of the foregoing. If any
action, suit or proceeding arising from any of the foregoing is brought against
any Indemnified Party, such Indemnified Party shall promptly notify the Mobile
Energy Parties in writing, enclosing a copy of all papers served, but the
omission so to notify the Mobile Energy Parties of any such action shall not
relieve it of any obligation to indemnify such Indemnified Party; provided,
however, that the Mobile Energy Parties shall not be liable for any settlement
of any such action effected without either of the Mobile Energy Party's prior
written consent, not to be unreasonably withheld. If any such action shall be
brought against any Indemnified Party and it shall notify either of the Mobile
Energy Parties of the commencement thereof, either of the Mobile Energy Parties
shall be entitled to participate in and, to the extent that it shall wish, to
assume the defense thereof with counsel reasonably satisfactory to such
Indemnified Party, and after notice from such Mobile Energy Party to such
Indemnified Party of such Mobile Energy Party's election so to assume the
defense thereof, the Mobile Energy Parties shall not be liable to such
Indemnified Party for any subsequent legal or other expenses attributable to
such defense, except as provided below, other than reasonable costs of
investigation subsequently incurred by such Indemnified Party in connection with
the defense thereof. The Indemnified Party shall have the right to employ its
own counsel in any such action where either of the Mobile Energy Parties has
assumed the defense, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the employment of counsel by such
Indemnified Party has been authorized by either of the Mobile Energy Parties,
(ii) the Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between either of the Mobile Energy Parties and the
Indemnified Party in the conduct of the defense of such action (in which case
the Mobile Energy Parties shall not have the right to direct the defense of such
action on behalf of the Indemnified Party) or (iii) the Mobile Energy Parties
shall not in fact have employed counsel reasonably satisfactory to the
Indemnified Party to assume the defense of such action, provided that the Mobile
Energy Parties shall not be required to pay the fees and expenses of more than
one such separate counsel for all the Lenders.
SECTION 9.11. Governing Law. THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CONFLICT-
OF-LAW PRINCIPLES THEREOF.
SECTION 9.12. Headings. The section and subsection
headings used herein have been inserted for convenience of
reference only and do not constitute matters to be considered in
interpreting this Agreement.
38
SECTION 9.13. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one (1) and the same
agreement.
SECTION 9.14. Third Party Beneficiaries. Nothing contained in
this Agreement or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors and permitted assigns, any
benefits or any legal or equitable right, remedy or claim under this Agreement
or the Notes.
SECTION 9.15. Waiver of Jury Trial. THE MOBILE ENERGY PARTIES,
THE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 9.16. Submission To Jurisdiction; Waivers.
Each of the Company and Mobile Energy hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Financing Documents
to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address set forth in Section 9.2 or at
such other address of which the Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages, other
39
than, in the case of punitive damages, with respect to any Lender or
the Agent which engages in willful misconduct.
40
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
MOBILE ENERGY SERVICES
COMPANY, L.L.C.
By: /s/
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
MOBILE ENERGY SERVICES
HOLDINGS, INC.
By: /s/
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
Commitment
$15,000,000.00 BANQUE PARIBAS, as Agent and
as a Lender
By: /s/
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
By:
Name: Xxxxxxx Xxxxxxx, Xx.
Title:Vice President
THIS REVOLVING PROMISSORY NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF
THIS REVOLVING PROMISSORY NOTE MUST BE RECORDED IN THE REGISTER MAINTAINED BY
THE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
Exhibit A
REVOLVING PROMISSORY NOTE
$15,000,000.00 New York, New York
August 24, 1995
FOR VALUE RECEIVED, the undersigned, MOBILE ENERGY SERVICES COMPANY,
L.L.C., an Alabama limited liability company (the "Company"), hereby
unconditionally promises to pay to the order of BANQUE PARIBAS (the "Lender")
the lesser of (i) the principal sum of fifteen million dollars ($15,000,000.00)
and (ii) the aggregate unpaid principal amount of the Loans made by the Lender
to the Company under the Credit Agreement referred to below, on the dates and in
the amounts specified therein.
The Company further promises to pay interest on the daily unpaid
principal amount hereof from time to time outstanding on the dates and at the
rates specified in the Credit Agreement. This Note is hereby expressly limited
so that in no contingency or event, whether by reason of acceleration of the
maturity of any indebtedness evidenced hereby or otherwise, shall the interest
contracted for or charged or received by the Lender exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to the Lender in excess of the maximum lawful amount,
the interest payable to the Lender shall be reduced to the maximum amount
permitted under applicable law, and the amount of interest for any subsequent
period, to the extent less than that permitted by applicable law, shall to that
extent be increased by the amount of such reduction.
Each holder hereof is authorized to endorse on the schedule attached
hereto, or on a continuation thereof, the date each such interest payment is due
and the amount of each such interest payment determined in accordance with the
Credit Agreement. All such notations shall constitute conclusive evidence
(absent manifest error) of the accuracy of the information so recorded and be
enforceable against the Company with the same force and effect as if such
amounts were each set forth in a separate note executed by the Company.
All payments due hereunder shall be made without setoff, counterclaim
or deduction of any nature to Banque Paribas, as
2
Agent under the Credit Agreement, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, in lawful money of the United States of America and in immediately
available funds, or at such other place and in such other manner as may be
specified by the Agent pursuant to the Credit Agreement.
Each holder hereof is authorized to endorse on the schedule attached
hereto, or on a continuation thereof, the date and amount of each Loan made to
the Company and each payment or prepayment of principal thereof, provided that
the failure of such holder to make, or any error in making, any such recordation
or endorsement shall not affect the obligations of the Company hereunder or
under the Credit Agreement. All such notations shall constitute conclusive
evidence (absent manifest error) of the accuracy of the information so recorded
and be enforceable against the Company with the same force and effect as if such
amounts were each set forth in a separate note executed by the Company.
This Note is the "Note" of the Company to the Lender referred to in,
evidences each Loan made by the Lender to the Company under, is subject to the
provisions of, and entitles its holder to the benefits of, the Revolving Credit
Agreement dated as of August 1, 1995 (the "Credit Agreement") among the Mobile
Energy Parties, the Lender and the other lender parties thereto, and Banque
Paribas, as Agent for the Lender and such other lenders, as the same may be
amended, supplemented or otherwise modified from time to time and to which
reference is hereby made for a more complete statement of the terms and
conditions under which each Loan evidenced hereby is to be made and repaid.
Capitalized terms in this Note that are not specifically defined herein shall
have the meanings ascribed to them in the Credit Agreement.
The Credit Agreement provides for, among other things, the acceleration
of the maturity of the unpaid principal amount hereof upon the occurrence of
certain stated events and for voluntary prepayments in certain circumstances and
upon certain terms and conditions. The obligations of the Company under the
Credit Agreement and this Note are secured as provided under, and the holder
hereof is entitled to the benefit of, the Security Documents.
In addition to any and all costs, fees and expenses for which the
Company is liable under the Credit Agreement, the Company promises to pay all
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred in the collection and enforcement hereof or any appeal of any judgment
rendered hereon.
The Company hereby expressly waives diligence, presentment, protest,
demand, dishonor, nonpayment and notice of every kind to the fullest extent
permitted by applicable law. No failure or delay by any holder of this Note to
exercise any right or remedy under this Note or any other document or instrument
entered into
3
pursuant to the Credit Agreement shall operate or be construed as a waiver or
modification hereof or thereof.
This Note shall be binding upon the successors and permitted assigns of
the Company and shall inure to the Lender and its successors, endorsees and
permitted assigns. If any term or provision of this Note shall be held invalid,
illegal or unenforceable, the validity of all other terms and provisions hereof
shall in no way be affected thereby.
Recourse under this Note is limited in accordance with Section 9.7 of
the Credit Agreement, and the provisions of Section 9.7 of the Credit Agreement
are incorporated herein by reference.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CONFLICT-OF-LAW PRINCIPLES THEREOF.
The Company hereby expressly and irrevocably agrees and consents that
any suit, action or proceeding arising out of or related to this Note may be
instituted in any state or federal court (at Lender's option) sitting in the
County of New York, State of New York, and, by the execution and delivery of
this Note, the Company expressly waives any objection that it may have now or
hereafter to the venue or to the jurisdiction of any such suit, action or
proceeding, and irrevocably submits generally and unconditionally to the
jurisdiction of any such court in any such suit, action or proceeding.
All excise tax due on this Note has been paid by the Company and proper
stamps affixed to the Mortgage securing this Note.
MOBILE ENERGY SERVICES
COMPANY, L.L.C.
By: _______________________
Name:
Title:
SCHEDULE
Total
Principal
Principal Amount of Unpaid Amount of
Date Amount Principal Paid Principal Date Interest Amount of Loans Notation
Made of Loan or Prepaid Balance Payment is Due Interest Due Outstanding Made by
---- ------- ---------- ------- -------------- ------------ ----------- -------
Exhibit B
NOTICE OF BORROWING
[Mobile Energy Services Company, L.L.C. Letterhead]
[Date - at least one (1) Business Day (or
three (3) Eurodollar Business Days for LIBOR
Rate Loans) prior to proposed date of
Borrowing]
Banque Paribas, as Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Ladies and Gentlemen:
Pursuant to the Revolving Credit Agreement, dated as of August 1, 1995
among Mobile Energy Services Company, L.L.C. (the "Company"), Mobile Energy
Services Holdings, Inc., the financial institutions named therein (the
"Lenders") and Banque Paribas, as Agent for the Lenders (as the same may be
amended, modified or supplemented from time to time, the "Credit Agreement")
(capitalized terms used herein, unless otherwise noted, shall have the meanings
ascribed to them in the Credit Agreement). The Company hereby requests that the
Lenders make available to the Company on ______, the following amount:
Funds required by the Company to pay
for Operation and Maintenance Costs $______
Funds required by the Company to pay
Obligations under the Credit Agreement $______
Total Funds Required $______
This Borrowing shall consist of [choose Adjusted Base Rate Loans or
LIBOR Rate Loans - if LIBOR Rate Loans, specify Interest Period of one (1), two
(2) or three (3) months] with a Loan Repayment Date of [Date - not later than
the Scheduled Expiration Date; not later than 93 days from date of Borrowing; no
more than $5,000,000 may be scheduled for repayment within any calendar month;
if LIBOR Rate Loans, must correspond with last day of specified Interest
Period].
2
Attached hereto are invoices or other evidence of amounts due
evidencing the uses contemplated for the requested Borrowing. We request that
$______ of the funds representing the requested Borrowing be deposited in the
Operating Account established and created under the Intercreditor Agreement and
$______ of the funds representing the requested Borrowing be deposited in
account no. ______, located at __________, ABA no.
_______ (which may be the Company's checking account).
In connection with this request for a Borrowing, the Company further
certifies that the proceeds of the Borrowing being requested herein are to be
applied for the uses permitted by the Credit Agreement.
The Company hereby certifies that, as of the date of this request for a
Borrowing, the Company is in compliance, subject to the satisfaction or waiver
by the Agent, with all conditions precedent set forth in Section [in the case of
the initial Borrowing, 3.1 and] 3.2 of the Credit Agreement.
MOBILE ENERGY SERVICES
COMPANY, L.L.C.
By: _____________________________
Name:
Title:
cc: Bankers Trust (Delaware),
as Collateral Agent
Exhibit C
Form of Commitment Transfer Supplement
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among each Transferor Lender set forth in Item 2 of
Schedule I hereto (each, a "Transferor Lender"), each Purchasing Lender set
forth in Item 3 of Schedule I hereto (each, a "Purchasing Lender") and Banque
Paribas, as the Initial Lender and as Agent under the Credit Agreement described
below.
W I T N E S S E T H:
WHEREAS, this Commitment Transfer Supplement is being executed
and delivered in accordance with Section 9.9 of the Revolving Credit
Agreement dated as of August 1, 1995 among (i) Mobile Energy Services
Company, L.L.C., an Alabama limited liability company (the "Company"),
(ii) Mobile Energy Services Holdings, Inc., an Alabama corporation,
(iii) Banque Paribas, in its individual capacity as initial lender (the
"Initial Lender"), and the other Lenders named therein (collectively,
the "Lenders") and (iv) Banque Paribas, as agent for the Lenders (the
"Agent") (terms defined therein being used herein as therein defined);
and
WHEREAS, each Purchasing Lender desires to purchase and assume
from its respective Transferor Lender certain rights, obligations and
commitments under the Credit Agreement and, if it is not already a
Lender party to the Credit Agreement, desires to become a Lender party
to the Credit Agreement; and
WHEREAS, each Transferor Lender desires to sell and assign to
its respective Purchasing Lender, certain rights, obligations and
commitments under the Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by Agent of [ ] ([ ]) fully executed originals of this
Commitment Transfer Supplement, to each of which is attached a fully completed
Schedule I and Schedule II, and each of which has been executed by each
Transferor Lender, each Purchasing Lender and any other Person required by the
Credit Agreement to execute this Commitment Transfer Supplement, Agent will
transmit to the Company, each Transferor Lender and each Purchasing Lender a
Transfer Effective Notice, substantially in the form of Schedule IV hereto (a
"Transfer Effective Notice"). Such Transfer Effective Notice shall set forth,
among other things, the date on which the transfer effected by this Commitment
Transfer Supplement shall become effective (the "Transfer Effective Date"),
which date shall be the
2
date hereof. From and after the Transfer Effective Date each Purchasing Lender
shall be a Lender party to the Credit Agreement for all purposes thereof.
2. Each Purchasing Lender shall pay to each of its respective
Transferor Lenders an amount in United States dollars equal to the purchase
price, as agreed between such Transferor Lender and each such Purchasing Lender
(the "Purchase Price"), for the portion being purchased (such Purchasing
Lender's "Purchased Percentage") by such Purchasing Lender of the Commitment of,
and outstanding Loans and other amounts owing to, the respective Transferor
Lender under the Credit Agreement and the Notes (the "Outstanding Obligations").
Each Purchasing Lender shall pay the appropriate Purchase Price to its
respective Transferor Lender(s), in immediately available funds, at or before
12:00 noon, local time of the appropriate Transferor Lender, on the Transfer
Effective Date. Effective upon the Transfer Effective Date, each Transferor
Lender hereby irrevocably sells, assigns and transfers to each of its respective
Purchasing Lenders, without recourse, representation or warranty other than as
set forth in Section 8, and each such Purchasing Lender hereby irrevocably
purchases, takes and assumes from its respective Transferor Lender(s), such
Purchasing Lender's Purchased Percentage of the Commitment of, and presently
outstanding Loans and other amounts owing to, each such Transferor Lender under
the Credit Agreement and the Notes.
3. Each Transferor Lender has made arrangements with its respective
Purchasing Lender(s) with respect to (a) the portion, if any, to be paid, and
the date or dates for payment, by such Transferor Lender to its respective
Purchasing Lender(s) of any fees heretofore received by such Transferor Lender
pursuant to the Credit Agreement prior to the Transfer Effective Date that apply
to periods subsequent to the Transfer Effective Date and (b) the portion, if
any, to be paid, and the date or dates for payment, by each such Purchasing
Lender to its respective Transferor Lender(s) of fees or interest received by
each such Purchasing Lender pursuant to the Credit Agreement from and after the
Transfer Effective Date that apply to periods prior to the Transfer Effective
Date.
4. All payments of principal that would otherwise be payable, and all
interest, fees and other amounts that would otherwise accrue, from and after the
Transfer Effective Date to or for the account of any Transferor Lender pursuant
to the Credit Agreement and the Notes shall instead be payable and accrue to or
for the account of, the Transferor Lender(s) and the Purchasing Lender(s) in
accordance with their respective interests as reflected in this Commitment
Transfer Supplement.
5. On or prior to the Transfer Effective Date, each Transferor Lender
will deliver to the Agent its Note. On or prior to the Transfer Effective Date,
the Company will deliver to the Agent a new Note for each Purchasing Lender and
each Transferor Lender (if applicable), in each case in principal amounts
reflecting the revised Commitments of such Lenders (as adjusted pursuant to this
Commitment Transfer Supplement). Promptly after the Transfer Effective Date, the
Agent will send to each Transferor Lender (if applicable) and Purchasing Lender
its new Note with the superseded Note of each Transferor Lender attached to the
new Note (or if there is more than one (1) new Note, the superseded Note
attached to one (1) of such new Notes and copies thereof attached to all other
new Notes).
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6. Concurrently with the execution and delivery hereof, the Transferor
Lenders will provide to each Purchasing Lender (if it is not already a Lender
party to the Credit Agreement) copies of all documents delivered to the
Transferor Lenders evidencing satisfaction of the conditions precedent set forth
in the Credit Agreement.
7. Each of the parties to this Commitment Transfer Supplement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer Supplement,
each Transferor Lender and each Purchasing Lender confirms to and agrees with
each other, the Agent, the Initial Lender and the Lenders as follows: (a) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned hereby, free and clear of any adverse claim, each
such Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, the Notes or any other instrument or document furnished
pursuant thereto, (b) each such Transferor Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the performance or observance by the Company of any of its
obligations under the Credit Agreement, the Notes or any other instrument or
document furnished pursuant thereto, (c) each such Purchasing Lender confirms
that it has received a copy of the Credit Agreement, together with copies of
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Commitment Transfer
Supplement, (d) each such Purchasing Lender will, independently and without
reliance upon Agent, its respective Transferor Lender(s) or any other Lender or
the Initial Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, (e) each such Purchasing Lender
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Agent by
the terms thereof together with such powers as are reasonably incidental thereto
and (f) each such Purchasing Lender agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender.
9. Schedule II hereto sets forth for each Transferor Lender and each
Purchasing Lender the revised Commitment of each Transferor Lender and each
Purchasing Lender, as well as certain administrative information with respect to
each Purchasing Lender.
10. Notwithstanding anything to the contrary contained in this
Commitment Transfer Supplement, if the long-term debt rating of any Purchasing
Lender shall, at any time, be less than a rating of BBB or the equivalent
thereof by S&P or Baa or the equivalent thereof by Xxxxx'x, then the Initial
Lender may, in its sole and absolute discretion, purchase all or any part (as
determined by the Initial Lender) of such Purchasing Lender's participating
interest hereunder (the "Purchased Interests") by providing such Purchasing
Lender with at least two Business Days' prior notice of such purchase and making
a payment to such Purchasing
4
Lender equal to all outstanding amounts owing to it under the Credit Agreement
in respect of the Purchased Interests on the date of such purchase as set forth
in such notice. Upon any such purchase of the Purchased Interests, such
Purchasing Lender shall no longer have any rights or obligations as a Purchasing
Lender hereunder or as a Lender under the Credit Agreement or under any other
instruments or documents furnished pursuant thereto with respect to the
Purchased Interests. The Initial Lender may, in its sole and absolute
discretion, retain for its own account and/or sell its interest in all or any
portion of the Purchased Interests.
11. THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO THE CONFLICT-OF-LAW PRINCIPLES
THEREOF.
12. This Commitment Transfer Supplement may be executed in two (2) or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one (1) and the same document.
13. Execution of this Commitment Transfer Supplement by the Agent and
the Company as set forth below shall constitute any consent of such Person
required pursuant to Section 9.9 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
Transfer Supplement to be executed by their respective duly authorized officers
on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
Schedule I
to Commitment
Transfer
Supplement
COMPLETION OF INFORMATION
AND SIGNATURES FOR COMMITMENT TRANSFER SUPPLEMENT
Re: Revolving Credit Agreement with Mobile Energy Services Company, L.L.C.
Item 1 Date of Commitment Transfer Supplement: [Insert date of Commitment
Transfer Supplement]
Item 2 Transferor Lenders: [Insert names of Transferor Lenders]
Item 3 Purchasing Lenders: [Insert names of Purchasing Lenders]
Item 4 Signatures of Parties to Commitment Transfer Supplement:
______________________, as a
Transferor Lender
By: ________________________
Name:
Title:
______________________, as a
Purchasing Lender
By: ________________________
Name:
Title:
BANQUE PARIBAS, as the Initial Lender
and Agent
By: _________________________
Name: ___________________
Title: __________________
CONSENTED TO AND ACKNOWLEDGED:
MOBILE ENERGY SERVICES COMPANY, L.L.C.
2
By: ____________________________
Name: ______________________
Title: _____________________
ACCEPTED FOR RECORDATION IN REGISTER:
BANQUE PARIBAS, as Agent
By: ___________________________
Name: ______________________
Title: _____________________
3
Schedule II
to Commitment
Transfer
Supplement
COMMITMENT AMOUNTS AND PROPORTIONATE SHARES
Names of Transferor
Lenders Revised Commitment
---------- $-----
---------- $-----
Names of Purchasing
Lenders New Commitment
---------- $-----
[NAME PURCHASING LENDER]
Address for Notices:
Attention:
Telex:
Answerback:
Telephone:
Telecopier:
Clearing Account:
[Insert Acct. #]
Schedule III
to Commitment
Transfer
Supplement
TRANSFER EFFECTIVE NOTICE
[Date]
Transferor Lenders: __________
Purchasing Lenders: __________
Re: Revolving Credit Agreement with Mobile Energy Services Company, L.L.C.
The undersigned, as Agent under the Revolving Credit Agreement, dated
as of August 1, 1995, among (i) Mobile Energy Services Company, L.L.C., an
Alabama limited liability company (the "Company"), (ii) Mobile Energy Services
Holdings, Inc., an Alabama corporation, (iii) Banque Paribas, as initial lender,
and the other Lenders named therein (collectively, the "Lenders"), and (iv)
Banque Paribas, as agent for the Lenders (the "Agent"), acknowledges receipt of
[ ] ([ ]) copies of the Commitment Transfer Supplement as described in Annex I
hereto, each fully executed. Terms defined in such Commitment Transfer
Supplement are used herein as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you are advised that
the Transfer Effective Date will be the date hereof.
2. Pursuant to such Commitment Transfer Supplement, each Transferor Lender
is required to deliver to Agent on or before the Transfer Effective Date its
Note.
3. Pursuant to such Commitment Transfer Supplement, the Company is required
to deliver to the Agent on or before the Transfer Effective Date the following
Notes:
[Describe each new Note for Transferor Lender (if applicable) and Purchasing
Lender as to principal amount and payee.]
2
4. Pursuant to such Commitment Transfer Supplement, each Purchasing
Lender is required to pay its Purchase Price, in immediately available funds, to
the appropriate Transferor Lender at or before 12:00 noon, local time of the
appropriate Transferor Lender, on the Transfer Effective Date.
Very truly yours,
BANQUE PARIBAS, as Agent
By: ______________________
Name: ______________
Title: _____________
ANNEX I
INFORMATION IDENTIFYING
COMMITMENT TRANSFER SUPPLEMENT
Re: Revolving Credit Agreement with Mobile Energy Services Company, L.L.C.
Item 1 Date of Commitment
Transfer Supplement: __________
Item 2 Transferor Lenders: __________
Item 3 Purchasing Lenders: __________
