Exhibit 10.52
ESTOPPEL, CONSENT AND RECOGNITION AGREEMENT
This ESTOPPEL, CONSENT AND RECOGNITION AGREEMENT (this
"Estoppel Agreement"), dated as of August 1, 1995, is executed by XXXXX PAPER
COMPANY, a Pennsylvania corporation ("Xxxxx"), and MOBILE ENERGY SERVICES
COMPANY, L.L.C., an Alabama limited liability company ("MESC"), for the benefit
of BANKERS TRUST (DELAWARE), a Delaware banking corporation, as Collateral Agent
for the Secured Parties (as hereinafter defined) (the "Lender").
A. MESC, Mobile Energy Services Holdings, Inc. (formerly known
as Mobile Energy Services Company, Inc.), an Alabama corporation ("Mobile
Energy"), and First Union National Bank of Georgia, as trustee (in such
capacity, the "Taxable Trustee"), have entered into a Trust Indenture dated as
of August 1, 1995 (as the same may be amended, supplemented, waived or otherwise
modified, the "Taxable Indenture"), pursuant to which MESC (i) is issuing its
First Mortgage Bonds, the proceeds of which will be used to (among other things)
repay to The Southern Company a portion of the amounts advanced to pay certain
costs associated with the acquisition of the Energy Complex (as defined in the
Amended and Restated Master Operating Agreement dated as of July 13, 1995 among
Xxxxx, Mobile Energy and the other parties thereto), and (ii) may, from time to
time, issue additional Senior Debt (as defined in the Taxable Indenture).
B. MESC, Mobile Energy and The Industrial Development Board of
the City of Mobile, Alabama (the "Board") have entered into an Amended and
Restated Lease and Agreement dated as of August 1, 1995 with respect to part of
the Energy Complex, relating to The Industrial Development Board of the City of
Mobile, Alabama Solid Waste Revenue Refunding Bonds (Mobile Energy Services
Company, L.L.C. Project), Series 1995, to be issued for the benefit of MESC
pursuant to an Amended and Restated Indenture dated as of August 1, 1995 (as the
same may be amended, supplemented, waived or otherwise modified, the Tax- Exempt
Indenture") between the Board and First Union National Bank of Georgia, as
trustee (in such capacity, the "Tax-Exempt Trustee"). The proceeds of the
Tax-Exempt Bonds will be used to refinance certain outstanding tax-exempt bonds
and to pay for certain other costs. MESC may cause the Board to issue, from time
to time, additional debt under such Amended and Restated Indenture.
C. MESC and Banque Paribas (together with any lender that is
or becomes a provider of the Working Capital Facility (as hereinafter defined),
the "Working Capital Facility Provider" and, together with the Taxable Trustee
and the Tax-Exempt Trustee, the "Secured Parties") have entered into a Revolving
Credit Facility dated as of August 1, 1995 (as the same may be amended,
supplemented, waived or otherwise modified, and together with any replacement
working capital facility, the "Working Capital Facility"), borrowings under
which will be used to finance certain working capital requirements of MESC.
X. Xxxxx and Mobile Energy have entered into that certain
Supplementary Lease Agreement dated as of December 12, 1994 (as amended pursuant
to the First Amendment to Supplementary Lease Agreement dated as of July 13,
1995, and pursuant to the Second Amendment to Supplementary Lease Agreement
dated as of August 1, 1995 (to be recorded) and as it may be further amended,
restated, renewed, modified or supplemented from time to time with the Lender's
written consent, the "Lease"), whereby, inter xxxx, Xxxxx has leased to Mobile
Energy certain real property owned by Xxxxx and described in Exhibit A attached
hereto and incorporated herein by this reference (the "Facility Site");
E. Pursuant to an Omnibus Deed, Xxxx of Sale, General
Assignment and Conveyance Agreement between Mobile Energy and MESC dated as of
July 14, 1995, Mobile Energy has assigned to MESC, and MESC has assumed, all of
Mobile Energy's rights and obligations under the Lease; and
F. The Lender has been granted a security interest in the
Lease and the Energy Complex for the benefit of the Secured Parties pursuant to
an Intercreditor and Collateral Agency Agreement dated as of August 1, 1995 by
and among the Secured Parties, the Board, the Lender, MESC and Mobile Energy (as
the same may be amended, supplemented, waived or otherwise modified, the
"Intercreditor Agreement"), the Leasehold Mortgage, Assignment of Leases, Rents,
Issues, Profits and Security Agreement and Fixture Filing dated as of August 1,
1995 (as the same may be amended, supplemented, waived or otherwise modified,
the "Mortgage"), the Assignment of Security Agreement dated as of August 1, 1995
between MESC and the Lender, and the other Financing Documents.
NOW, THEREFORE, with the understanding that the Lender and the
Secured Parties will be relying on each of the statements contained in this
Estoppel Agreement and that the Lender and the Secured Parties would not enter
into the Intercreditor Agreement and the other Financing Documents without this
Estoppel Agreement, Xxxxx hereby states, certifies, represents, and warrants (in
each case, as of the date hereof) and agrees as follows (capitalized terms not
otherwise defined herein having the meanings ascribed thereto in the
Intercreditor Agreement as in effect on the date hereof):
1. The Lease has not been supplemented or amended (orally or
in writing), except as described in Recital D above. Attached hereto as Exhibit
B is a true and correct copy of the Lease.
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2. The Lease is valid and in full force and effect, in
accordance with its terms, and is the valid and binding obligation of Xxxxx as
lessor. The Lease has not been surrendered, canceled, terminated or abandoned,
whether in writing or pursuant to a purported oral surrender, cancellation,
termination or abandonment.
3. The Lease constitutes the only written agreement
between Xxxxx and MESC with respect to the interests described
therein.
4. Xxxxx has not commenced any pending action or sent any
presently effective notice to MESC (or received any presently effective notice
from MESC) for the purpose of terminating the Lease. Xxxxx is not presently
entitled to terminate the Lease.
5. Xxxxx has not received any notice delivered for
the purpose of terminating the Lease.
6. To the best of Xxxxx'x knowledge, MESC is not in default in
the performance of the Lease and no event has occurred which with the passage of
time or the giving of notice, or both, would constitute a default by MESC under
the Lease.
7. Xxxxx is not in default in the performance of the Lease and
no event has occurred which with the passage of time or the giving of notice, or
both, would constitute a default by Xxxxx under the Lease.
8. Rent under the Lease is One Dollar ($1.00) per
year, payable in advance, and the first installment thereof was
due on December 16, 1994.
9. All rent has been paid under the Lease through and
including the rent payable for each rent payment period that includes the date
hereof. As of the date hereof, no rent or any other payments are presently due
under the Lease.
10. The "Effective Date" of the Lease, on which date
the term of the Lease commenced, is December 16, 1994.
11. Xxxxx has not assigned, sublet, hypothecated, or otherwise
transferred its interests, or any portion thereof, under the Lease or in its
estate underlying the Lease. Except as described in Recital D above and as
contemplated by this Estoppel Agreement, Xxxxx has not received notice of any
assignment of the Lease by MESC.
12. Xxxxx acknowledges and agrees that MESC has the right to
and will encumber its interests under the Lease with the Mortgage and other
security documents. Xxxxx consents to the assignment pursuant to the Mortgage
and other Financing Documents and agrees with the Lender for the benefit of the
Secured Parties that Xxxxx has received notice that the Lender, for the benefit
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of the Secured Parties, holds a leasehold mortgage on the leasehold estate of
MESC and is entitled to all rights, privileges and protections that apply to the
holder of such a leasehold mortgage under the Lease, subject in each case to the
terms and conditions of the Consents to Assignment between the Lender and each
of Xxxxx and the Mill Owners (the "Consents"), and that Xxxxx has been provided
with the Lender's address herein.
13. Xxxxx agrees that notwithstanding anything in the Lease to
the contrary, it will not create any lien, charge, interest, or encumbrance in
or on the Facility Site that is superior to the Lease and/or the lien of the
Mortgage.
14. Xxxxx agrees that the Lender and the Secured Parties shall
have the right to enter, possess and use the Facility Site at such reasonable
times and manner as are necessary or desirable to effectuate the remedies and
enforce the rights of Lender and the Secured Parties under the Financing
Documents; provided, however, that such entry, possession or use shall be
strictly in accordance with the terms and conditions of the Consents.
15. None of the senior management of Xxxxx, the Pulp Mill SOC
Representative (as defined in the Master Operating Agreement) and the Tissue
Mill SOC Representative (as defined in the Master Operating Agreement) has
received notice of any other holder of a leasehold mortgage on or holder of any
other security interest in the leasehold estate of MESC under the Lease other
than the Mortgage.
16. Xxxxx hereby represents and warrants that:
(a) The execution, delivery and performance by Xxxxx
of the Lease and this Estoppel Agreement have been duly authorized by
all necessary corporate action, and do not require any further consents
or approvals which have not been obtained, or violate any provision of
any law, regulation, order, judgment, injunction or similar matters or
breach any agreement presently in effect with respect to or binding on
Xxxxx;
(b) This Estoppel Agreement is the legal, valid and
binding obligation of Xxxxx, and this Estoppel Agreement and the Lease
are enforceable against Xxxxx in accordance with their terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights generally and (ii) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
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(c) All government approvals necessary for the
execution and delivery of and performance by Xxxxx of its obligations
under the Lease have been obtained and are in full force and effect.
17. All notices required or permitted hereunder shall be in
writing and shall be effective (a) upon receipt if hand delivered, (b) upon
telephonic verification of receipt if sent by telefacsimile and (c) if otherwise
delivered, upon the earlier of receipt or two (2) business days after being sent
registered or certified mail, return receipt requested, with proper postage
affixed thereto, or by private courier or delivery service with charges prepaid,
and addressed as specified below:
If to Xxxxx:
Xxxxx Paper Company
Xxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxx, Xx.
FAX: (000) 000-0000
with copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx Xxxxxxx, Esq.
FAX: (000) 000-0000
If to the Lender:
Bankers Trust (Delaware)
c/o Bankers Trust Company
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust and Agency Group
FAX: 000-000-0000
with copy to:
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxx
FAX:000-000-0000
Each party may change its address to another address within the United States by
notice in accordance with this paragraph.
18. This Estoppel Agreement shall be binding upon and
benefit the successors and assigns of Xxxxx, MESC, the Lender,
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the Secured Parties, and their respective successors, transferees and assigns
(including, without limitation, any entity that refinances all or any portion of
the obligations under the Financing Documents). Xxxxx agrees to confirm such
continuing obligation in writing upon the reasonable request of MESC, the
Lender, the Secured Parties, or any of their respective successors, transferees
and assigns. No termination, amendment, variation or waiver of any provisions of
this Estoppel Agreement shall be effective unless in writing and signed by
Xxxxx, the Lender and MESC. To the extent this Estoppel Agreement conflicts in
any way with the Lease, this Estoppel Agreement is intended to modify and
supersede the Lease. Any such conflict shall be resolved in favor of this
Estoppel Agreement. If all or any portion of any provision of this Estoppel
Agreement is held to be invalid, illegal or unenforceable in any respect, then
such invalidity, illegality, or unenforceability shall not affect any other
provision of this Estoppel Agreement. This Estoppel Agreement shall be governed
by the laws of the State of New York, without reference to principles of
conflicts of laws (other than Section 5-1401 of the New York General Obligations
Law).
19. Notwithstanding anything in the Lease to the contrary, the
parties hereto agree that the effectiveness of this Estoppel Agreement, and the
rights of the Lender as a leasehold mortgagee under the Lease and hereunder,
shall in no way be conditional on the recording of this Estoppel Agreement.
20. This Estoppel Agreement may be executed in one or more
duplicate counterparts, and when executed and delivered by all the parties
listed below, shall constitute a single binding agreement.
21. It is expressly understood and agreed by the parties
hereto that this Estoppel Agreement has been executed by Bankers Trust
(Delaware), not in its individual capacity, but solely as Collateral Agent for
the Secured Parties in the exercise of the power and authority conferred and
vested in it.
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IN WITNESS WHEREOF, Xxxxx, by its officer thereunto duly
authorized, has duly executed this Estoppel Agreement as of the date first set
forth above.
XXXXX PAPER COMPANY,
a Pennsylvania corporation
By: /s/
Name: Xxxxxx X. Xxxx, Xx.
Title: Assistant Treasurer
Accepted and agreed to:
BANKERS TRUST (DELAWARE),
as the Lender
By: /s/
Name: Xxxxx X. Xxxxxxxxx
Title: President
MOBILE ENERGY SERVICES COMPANY, L.L.C.,
an Alabama limited liability company
By: /s/
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
STATE OF PENNSYLVANIA )
) ss.:
COUNTY OF DELAWARE )
I, the undersigned Notary Public in and for said County in
said State, hereby certify that Xxxxxx X. Xxxx, Xx. whose name as Assistant
Treasurer of Xxxxx Paper Company, a Pennsylvania corporation, is signed to the
foregoing Estoppel, Consent and Recognition Agreement and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and seal this the 18th day of August,
1995.
/s/ (seal)
Notary Public
STATE OF DELAWARE )
) ss.:
COUNTY OF NEW CASTLE )
I, the undersigned Notary Public in and for said County in
said State, hereby certify that Xxxxx X. Xxxxxxxxx whose name as President of
Bankers Trust (Delaware), a Delaware banking corporation, is signed to the
foregoing Estoppel, Consent and Recognition Agreement and who is known to me,
acknowledged before me on this day that, being informed of the contents of the
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said Delaware banking Corporation.
Given under my hand and seal this the 21st day of August,
1995.
/s/ (seal)
Notary Public
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XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
I, the undersigned Notary Public in and for said County in
said State, hereby certify that Xxxxx Xxxxx whose name as Vice President of
Mobile Energy Services Company, L.L.C., an Alabama limited liability companyon,
is signed to the foregoing Estoppel, Consent and Recognition Agreement and who
is known to me, acknowledged before me on this day that, being informed of the
contents of the instrument, he, as such officer and with full authority,
executed the same voluntarily for and as said corporation.
Given under my hand and seal this the 23rd day of August,
1995.
/s/ (seal)
Notary Public
EXHIBIT "A"
Property Description of Leased Premises
ALL that certain plot, piece or parcel of land, situate, lying and being in the
City of Mobile, County of Mobile, and State of Alabama, bounded and described as
follows:
Parcel I
Beginning at a point in Lot 11 of the Xxxxx Paper Company Subdivision
as recorded in Map Book 64, Page 39, in the Office of the Judge of
Probate of Mobile County, Alabama, said point being 3570.10 feet North
and 431.54 feet East of the Site of the Great Magnolia, and at Alabama
State Plane Coordinate, (West Zone, NAD 1927), North 270056.327 and
East 326422.733; Thence N-10-53'-56"-W for 356.22 ft.; Thence
S-89-01'-08"-E for 105.36 ft.; Thence S-68-5 2'-49"-E for 194.97 ft.;
Thence S-15-17'-38"-E for 241.11 ft.; Thence S-80-56'-54"-W for 287.04
ft. to the Point of Beginning. Said Parcel (the "East Fuel Tank
Parcel") lying and being in Lot 11 of the Xxxxx Paper Company
Subdivision and containing 1.968 acres, more or less.
LESS AND EXCEPT:
Beginning at a point 38.85 feet South and 7.65 feet West of the North
East corner of the Parcel described above, said point being at Alabama
State Plane Coordinate, (West Zone, NAD 1927), North 270295.212 and
East 326634.957; Thence S-42-00'-44"-W for 42.00 ft.; Thence
N-47-59'-16"-W for 50.00 ft.; Thence N-42-00'-44"-E for 42.00 ft.;
Thence S-47-59'-16"-E for 50 ft. to the Point of Beginning. Said Parcel
(the "Excluded Parcel") lying entirely within the East Fuel Tank Parcel
described above and containing 2100.00 square feet, more or less.
Parcel II
Beginning at a point in Lot 11 of the Xxxxx Paper Company Subdivision
as recorded in Map Book 64, Page 39, in the office of the judge of
Probate of Mobile County, Alabama: Said point being 2027.703 feet North
and 2186.144 feet East of the Site of the Great Magnolia, and at
Alabama Xxxxx Xxxxx Xxxxxxxxxx, Xxxx Xxxx, XXX 0000, Xxxxx 268513.927,
East 328177.335: Thence N-41(degree)-44'-09"-E for 195.20 feet; Thence
S-26(degree)-32'-42"-E for 119.38 feet; Thence S-34(degree)-20'-56"-E
for 102.00 feet; Thence S-41(degree)-44'-09"-W for 144.25 feet; Thence
Northwesterly, around a curve to the left having a radius of 438.67
feet and a Delta angle of 27(degree)-48'-23", the Chord of which bears
N-43(degree)-25'-40"-W for 210.66 feet, for an arc distance of 212.74
feet to the Point of Beginning. Said Parcel lying and being entirely
within
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the boundaries of Lot 11 of the aforesaid Xxxxx Paper Company
Subdivision, and containing 0.759 acres, more or less.
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