EXHIBIT 10.3
================================================================================
Lease Agreement
Between
The Industrial Development Board of the
Parish of St. Xxxx, Louisiana, Inc.
And
Xxxxxx Aluminum, L.L.C.
Dated as of June 1, 2003
================================================================================
$4,000,000
The Industrial Development Board of the
Parish of St. Xxxx, Louisiana, Inc.
Taxable Revenue Bonds
(Xxxxxx Aluminum, L.L.C. Project)
Series 2003
================================================================================
Table of Contents
ARTICLE I DEFINITIONS
SECTION 1.1. Definitions..........................................................-2-
ARTICLE II REPRESENTATIONS
SECTION 2.1. Representations and Findings by the Lessor...........................-5-
SECTION 2.2. Representations by the Lessee........................................-6-
ARTICLE III ISSUANCE OF THE BONDS;DISPOSITION OF PROCEEDS OF THE BONDS
SECTION 3.1. Issuance of the Bonds................................................-7-
SECTION 3.2. Disposition of Bond Proceeds.........................................-7-
SECTION 3.3. Disbursements from the Construction Fund.............................-7-
SECTION 3.4. Certification of Completion..........................................-8-
SECTION 3.5. Insufficient Moneys in Construction Fund.............................-8-
ARTICLE IV EFFECTIVE DATE OF THIS AGREEMENT;DURATION OF LEASE TERM; RENTAL PROVISIONS
SECTION 4.1. Effective Date of this Agreement; Duration of Lease Term.............-9-
SECTION 4.2. Demise of the Project; Delivery and Acceptance of Possession.........-9-
SECTION 4.3. Rents and Other Amounts Payable......................................-9-
SECTION 4.4. Place of Rental Payments............................................-10-
SECTION 4.5. Obligations of Lessee Hereunder Unconditional.......................-10-
ARTICLE V MAINTENANCE, TAXES AND INSURANCE
SECTION 5.1. Maintenance and Modification by Lessee..............................-12-
SECTION 5.2. Removal of Leased Facilities........................................-12-
SECTION 5.3. Taxes and Other Governmental Charges and Utility Charges............-13-
SECTION 5.4. Insurance Required..................................................-13-
SECTION 5.5. Application of Net Proceeds of Insurance............................-14-
SECTION 5.6. Additional Provisions Respecting Insurance..........................-14-
SECTION 5.7. Reserved............................................................-14-
SECTION 5.8. Exemption From Ad Valorem Taxation..................................-14-
SECTION 5.9. Environmental Matters...............................................-14-
ARTICLE VI DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 6.1. Damage and Destruction..............................................-16-
SECTION 6.2. Condemnation........................................................-16-
SECTION 6.3. Condemnation of Lessee-Owned Property...............................-17-
ARTICLE VII SPECIAL COVENANTS
SECTION 7.1. No Warranty of Condition or Suitability by the Lessor...............-18-
SECTION 7.2. Inspection of the Leased Facilities.................................-18-
SECTION 7.3. Lessee to Maintain its Corporate Existence; Conditions Under
Which Exceptions Permitted.......................................-18-
SECTION 7.4. Qualification in the State..........................................-18-
SECTION 7.5. Release and Indemnification Covenants...............................-18-
SECTION 7.6. Financial Statements of Lessee......................................-19-
SECTION 7.7. Estoppel Certificate................................................-19-
SECTION 7.8. Assignment of Warranties, Guaranties, Indemnities...................-19-
-i-
ARTICLE VIII ASSIGNMENT; SUBLEASING; SELLING; REDEMPTION; RENT PREPAYMENT AND ABATEMENT
SECTION 8.1. Assignment and Subleasing...........................................-21-
SECTION 8.2. Transfer of Lessor's Interest in Leased Facilities..................-21-
SECTION 8.3. Redemption of Bonds.................................................-21-
SECTION 8.4. Prepayment of Rents.................................................-21-
SECTION 8.5. Lessee Entitled to Conveyance of the Leased Facilities if
Bonds Paid Prior to Maturity.....................................-22-
SECTION 8.6. Installation of Lessee's Own Machinery and Facilities;
Landlord's Lien Thereon..........................................-22-
SECTION 8.7. Additional Real or Personal Property, Machinery, Equipment,
Furniture or Fixtures Constituting a Part of the Leased
Facilities.......................................................-22-
SECTION 8.8. References to Bonds Ineffective After Bonds Paid....................-22-
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
SECTION 9.1. Events of Default Defined...........................................-23-
SECTION 9.2. Remedies on Default.................................................-24-
SECTION 9.3. No Remedy Exclusive.................................................-25-
SECTION 9.4. Agreement to Pay Attorney's Fees and Expenses.......................-25-
SECTION 9.5. No Additional Waiver Implied by One Waiver..........................-25-
ARTICLE X OPTIONS IN FAVOR OF LESSEE
SECTION 10.1. Options to Terminate................................................-26-
SECTION 10.2. Conveyance of the Leased Facilities to the Lessee...................-26-
SECTION 10.3. Conveyance at Closing...............................................-26-
SECTION 10.4. Economic Benefits...................................................-27-
SECTION 10.5. Release of Leased Facilities........................................-27-
SECTION 10.6. Option to Extend Lease Term.........................................-27-
ARTICLE XI MISCELLANEOUS
SECTION 11.1. Surrender of Leased Facilities......................................-28-
SECTION 11.2. Notices.............................................................-28-
SECTION 11.3 Law Governing Construction of Agreement.............................-28-
SECTION 11.4. Binding Effect......................................................-28-
SECTION 11.5. Severability........................................................-28-
SECTION 11.6. Amounts Remaining in the Bond Fund..................................-28-
SECTION 11.7. Agreement Represents Complete Agreement.............................-28-
SECTION 11.8. Net Lease...........................................................-29-
SECTION 11.9. Execution of Counterparts...........................................-29-
EXHIBIT A Leased Facilities
-ii-
Lease Agreement
This Lease Agreement, dated as of June 1, 2003 (the "Lease Agreement" or
the "Lease"), by and between The Industrial Development Board of the Parish of
St. Xxxx, Louisiana, Inc., a public corporation and instrumentality of the
Parish of St. Xxxx, State of Louisiana (hereinafter called the "Lessor"), as
lessor, and Xxxxxx Aluminum, L.L.C. (the "Lessee"), a limited liability company
duly organized and existing under the laws of the State of Louisiana.
W I T N E S S E T H :
WHEREAS, the Lessor is authorized under the authority of Chapter 7 of Title
51 of the Louisiana Revised Statutes of 1950, as amended (the "Act"), to
acquire, own, lease, rent, finance, sell and dispose of properties for use by
any industry for the manufacturing, processing or assembling of any raw,
agricultural, semi-manufactured or manufactured products or any commercial
enterprise in storing, warehousing, distributing, or selling any products of
agriculture, fishing, forestry, mining, or industry;
WHEREAS, the Lessor has agreed, at the request of the Lessee and pursuant
to a Trust Indenture entered into by and between the Lessor and The Bank of New
York Trust Company of Florida, N.A., in Jacksonville, Florida (the "Trustee")
dated as of June 1, 2003 (the "Indenture"), to issue its $4,000,000 Taxable
Revenue Bonds (Xxxxxx Aluminum, L.L.C. Project) Series 2003 (the "Bonds") to
finance the acquisition, construction and equipping of an aluminum marine
fabrication, repair and conversion facility to be located in Amelia, St. Xxxx
Xxxxxx, Louisiana (the "Project");
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged and of the mutual benefits, covenants and agreements herein
expressed, the Lessor and the Lessee hereby agree as follows:
-1-
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms shall have the meanings
assigned to them in this Article I whenever they are used in this Agreement.
Terms not defined herein shall have the meanings set forth in the Indenture.
"Act" means Chapter 7 of Title 51 of the Louisiana Revised Statutes of
1950, as amended, and all future acts supplemental thereto or amendatory
thereof.
"Authorized Lessee Representative" means a person at the time designated to
act on behalf of the Lessee by written certificate furnished to the Lessor and
the Trustee containing the specimen signature of such person and signed on
behalf of the Lessee by the Chairman of the Board of Directors, or by the
President or the Secretary-Treasurer of the sole member of the Lessee. Such
certificate may designate an alternate or alternates.
"Bondholder" or "holder" or any similar term means any person who shall be
the registered owner of any Bond or Bonds.
"Bond Fund" means the Bond Fund created by Section 601 of the Indenture.
"Bonds" means the Taxable Revenue Bonds (Xxxxxx Aluminum, L.L.C. Project)
Series 2003 of the Lessor issued pursuant to the Indenture.
"Completion Date" has the meaning set forth in Section 3.4 hereof
"Construction" or "construction" (and other forms of the word "construct"),
when used with respect to the Project, means the acquisition, construction,
reconstruction, extension, equipping or improvement of the Project.
"Construction Fund" means the fund by that name created by Section 303 of
the Indenture.
"Costs" means all costs paid or incurred by the Lessee with respect to the
construction of the Leased Facilities and the financing thereof for the payment
of which the Issuer is authorized to issue bonds under the Act, and shall
include without limitation, (a) the expenses paid or incurred by the Lessee for
test borings, surveys, estimates and preliminary investigations therefor with
respect to the Leased Facilities; (b) administration expenses, legal,
accounting, financial, underwriting, advertising, recording and printing
expenses, Trustee fees and expenses and all other expenses paid or incurred by
the Lessee in connection with the authorization, issuance and sale of the Bonds;
and (c) all costs and expenses relating to transfers of title between the Lessee
and the Issuer pursuant to this Agreement.
"Indenture" means the Trust Indenture between the Lessor and the Trustee,
of even date herewith, pursuant to which the Bonds are authorized to be issued
and any indenture supplemental thereto.
"Independent Counsel" means an attorney or firm of attorneys duly admitted
to practice law before the highest court of any state and which attorney, firm
or any member thereof is not an officer, director or full time employee of
either the Lessor or the Lessee.
"Independent Engineer" means an engineer or engineering firm or architect
or architectural firm registered and qualified to practice the profession of
engineering or architecture under the laws of the State and
-2-
which engineer, architect, firm or any member thereof is not an officer,
director or employee of either the Lessor or the Lessee.
"Land" means the land described in Exhibit A attached hereto.
"Leased Facilities" means the Land and Project described in Exhibit A
attached hereto, which by this reference thereto is incorporated herein,
together with all additions thereto and substitutions therefor and includes
those buildings, structures, fixtures, furnishings and equipment, including any
structures, fixtures, furnishings and related property comprising a portion of
the Project (both movable and immovable) financed with the proceeds of the
Bonds, owned by the Lessor and hereby leased to the Lessee under this Agreement
which is not otherwise included in the definition of the Project, but not
including the Lessee's own furniture, fixtures, machinery and equipment now
existing or installed under the provisions of Sections 5.1 and 8.6 hereof.
"Lease Term" means the duration of the leasehold estate created in this
Agreement as specified in Section 4.1 hereof.
"Lessee" means Xxxxxx Aluminum, L.L.C., a Louisiana limited liability
company, and any surviving, resulting or transferee entity as provided in
Section 7.3 hereof.
"Lessor" or "Issuer" means The Industrial Development Board of the Parish
of St. Xxxx, Louisiana, Inc., a public corporation and instrumentality of the
Parish of St. Xxxx, State of Louisiana.
"Net Proceeds", when used with respect to any insurance or condemnation
award, means the gross proceeds from the insurance or condemnation award with
respect to which that term is used remaining after payment of all expenses
(including attorneys' fees and any Extraordinary Expenses of the Trustee)
incurred in the collection of such gross proceeds.
"Permitted Encumbrances" means, as of any particular time, (i) any liens
and encumbrances existing on the date hereof, (ii) liens for ad valorem taxes
not then delinquent, (iii) the Indenture and this Agreement, (iv) mechanic's,
materialman's, warehouseman's, carrier's or other similar liens and liens
referred to in Section 8.6 hereof, or permitted under Section 5.1 hereof, (v)
such minor defects, irregularities, encumbrances, easements, rights of way and
clouds on title as exist on the date of closing or as normally exist with
respect to properties similar in character and location to the Leased Facilities
and as do not, in the opinion of Independent Counsel, materially impair the use
of property affected thereby for the purpose for which it was acquired or is
held by the Lessor or to which the Bondholder has been notified and does not
object to, and (vi) the lien of the Security Agreement dated July 11, 2003 in
favor of the Purchaser from the Lessee.
"Plans and Specifications" means the plans and specifications prepared for
the Project for the benefit of the Lessee, as amended from time to time, which
plans and specifications are on file at the principal office of the Lessee.
"Project" shall have the meaning set forth in the preamble hereto and as
more specifically described in Exhibit A hereto.
"State" means the State of Louisiana.
"Trustee" means The Bank of New York Trust Company of Florida, N.A., in
Jacksonville, Florida, a national banking corporation organized under the laws
of the United States, the party of the second part of the Indenture or any
successor trustee pursuant to Section 1205 or 1208 of the Indenture at the time
serving as successor trustee under the Indenture.
-3-
ARTICLE II
REPRESENTATIONS
SECTION 2.1. Representations and Findings by the Lessor. The Lessor makes
the following representations as the basis for the undertakings on its part
herein contained:
(a) The Lessor is a duly constituted public corporation and
instrumentality of the Parish of St. Xxxx, State of Louisiana, and is duly
authorized under the provisions of the Act to enter into the transactions
contemplated by this Agreement and the Indenture and to carry out its
obligations hereunder and thereunder.
(b) The Lessor is the owner of the Leased Facilities, and proposes to
lease the Leased Facilities to the Lessee and to sell the interest of the
Lessor in the Leased Facilities to the Lessee at the expiration of the
Lease Term, or earlier termination thereof, if the Lessee shall elect to
purchase the same, in order to promote the purposes of the Act.
(c) To finance the Leased Facilities, the Lessor proposes to issue
$4,000,000 original principal amount of its Taxable Revenue Bonds (Xxxxxx
Aluminum, L.L.C. Project) Series 2003.
(d) All the Bonds will be issued under the Indenture and will mature,
bear interest, be redeemable and have the other terms and provisions set
forth in the Indenture, pursuant to which the Lessor's interest in this
Agreement and the revenues and receipts derived by the Lessor from the
leasing of the Leased Facilities will be pledged to the Trustee as security
for payment of the principal of and interest on the Bonds.
(e) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required as of the date of this Lease Agreement for the Lessor's
participation in the transactions contemplated by this Lease Agreement,
other than those that have been obtained.
(f) It is the intention of the Lessor that the Lessor's ownership of
the Project and the lease thereof to the Lessee hereunder will result in
the property being exempt from ad valorem taxes. The Lessor accepts no
responsibility for damages as the result of any determination to the
contrary, but agrees, to the extent it may legally do so, to assist and
cooperate with the Lessee in all reasonable efforts to establish and
maintain such exemption from ad valorem taxes as contemplated herein.
(g) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein or in the Indenture will not
conflict with or constitute a breach of or default under the Act or any
bond, debenture, note or other evidence of indebtedness, or any contract,
agreement or lease to which the Lessor is a party.
(h) There is no action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, known to be
pending or threatened against or affecting the Lessor, nor to the best of
the knowledge of the Lessor is there any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely affect
the transactions contemplated by this Agreement or which, in any way, would
adversely affect the validity or enforceability of the Bonds, this
Agreement or any agreement or instrument to which the Lessor is a party,
used or contemplated for use in the consummation of the transactions
contemplated hereby.
-4-
SECTION 2.2. Representations by the Lessee. The Lessee makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The Lessee (i) is a limited liability company duly organized and
in good standing under the laws of the State of Louisiana, (ii) has the
power to enter into this Agreement, and (iii) is duly authorized to execute
and deliver this Agreement.
(b) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein or in the Indenture will not
conflict with or constitute a breach of or default under the Lessee's
articles of organization, operating agreement and by-laws or any bond,
debenture, note or other evidence of indebtedness, or any contract,
agreement or lease to which the Lessee is a party.
(c) There is no action, suit, proceeding, inquiry or investigation, at
law or in equity, before or by any court, public board or body, known to be
pending or threatened against or affecting the Lessee, nor to the best of
the knowledge of the Lessee is there any basis therefor, wherein an
unfavorable decision, ruling or finding would materially adversely affect
the transactions contemplated by this Agreement or which, in any way, would
adversely affect the validity or enforceability of the Bonds, this
Agreement or any agreement or instrument to which the Lessee is a party,
used or contemplated for use in the consummation of the transactions
contemplated hereby.
(d) The Project consists of the acquisition construction and equipping
of an aluminum marine fabrication, repair and conversion facility and the
Lessee will continue to use the Project for those purposes as long as the
Bonds are Outstanding.
(e) No consent, approval, authorization or other order of any
regulatory body or administrative agency or other governmental body is
legally required as of the date of this Agreement for the Lessee's
participation in the transactions contemplated by this Agreement, except
such as may have been obtained or may be required under the securities laws
of any state or under any federal securities laws.
(f) The Lessee agrees to cooperate with the Lessor in the performance
of the Lessor's obligations under the Indenture.
-5-
ARTICLE III
ISSUANCE OF THE BONDS;
DISPOSITION OF PROCEEDS OF THE BONDS
SECTION 3.1. Issuance of the Bonds. The Lessor shall issue the Bonds under
and in accordance with the Indenture. The Lessee hereby approves the issuance of
the Bonds and all terms and conditions thereof.
SECTION 3.2. Disposition of Bond Proceeds. The Issuer and the Lessee agree
that the proceeds of the Bonds shall be applied as in this Section 3.2
described.
The moneys on deposit in the Construction Fund shall be applied by the
Trustee as provided in Section 3.3 hereof and as otherwise provided in Article
III of the Indenture. Until the moneys on deposit in the Construction Fund are
so applied, such moneys shall be and remain the property of the Lessor, subject
to the lien of the Indenture, and the Lessee shall have no right, title or
interest therein except as expressly provided in this Agreement and the
Indenture.
SECTION 3.3. Disbursements from the Construction Fund. After setting aside
amounts for payment of Costs described in Exhibit C to the Indenture, the Issuer
hereby authorizes and directs the Trustee, upon compliance with Section 305 of
the Indenture, to disburse the moneys in the Construction Fund to or on behalf
of the Lessee, acting as agent for and on behalf of the Lessor, the owner of the
Leased Facilities, for the following purposes:
(a) Payment to the Lessee of such amounts, if any, as shall be
necessary to reimburse the Lessee in full for all advances and payments
made by it or others at any time prior to or after the delivery of the
Bonds for all hard and soft costs in connection with the preparation of the
Plans and Specifications (including any preliminary study or planning of
the Project or any aspect thereof) and the construction, financing and
acquisition of the Project.
(b) To the extent not described in Exhibit C to the Indenture, payment
of the initial or acceptance fee of the Trustee, legal, financial and
accounting fees and expenses, the Issuer's fees and expenses, and printing
and engraving costs incurred in connection with the authorization, issuance
and sale of the Bonds, the execution and filing of the Indenture and the
preparation and recording or filing of all other documents in connection
therewith, and payment of all fees, costs and expenses for the preparation
of this Agreement, the Indenture and all other documents in connection with
the authorization, issuance and sale of the Bonds.
(c) Payment for labor, services, materials and supplies used or
furnished in the construction, installation and financing of the Project,
and payment of amounts due under contracts for the construction of the
Project, all as provided in the Plans and Specifications and work orders
therefor.
(d) Payment of the fees, if any, for architectural, engineering,
legal, underwriting and supervisory services with respect to the Project.
(e) To the extent not paid by a contractor for construction or
installation with respect to any part of the Project, payment of the
premiums on all insurance required to be taken out and maintained during
the period of construction.
-6-
(f) Payment of the taxes, assessments and other charges, if any, that
may become payable during the period of construction with respect to the
Project, or reimbursement thereof if paid by the Lessee.
(g) Payment of expenses incurred in seeking to enforce any remedy
against any contractor or subcontractor in respect of any default under a
contract relating to the Project.
(h) To the extent not described in Exhibit C to the Indenture, payment
of the Purchaser's fees and expenses incurred in connection with the
financing of the Project.
(i) Payment of any other hard and soft costs which constitute part of
the Cost of the Project in accordance with generally accepted accounting
principles and which are permitted by the Act.
All moneys remaining in the Construction Fund after payment or provision
for payment of all other items provided for in the preceding subsections (a) to
(i), inclusive, of this Section, shall be transferred to the Bond Fund.
SECTION 3.4. Certification of Completion. The Completion Date shall be the
date on which the Project is completed in its entirety and ready to be placed in
service and operated at substantially the level for which it was designed, all
as determined by the Lessee. Promptly after the Completion Date, the Lessee
shall submit to the Issuer and the Trustee a certificate, executed by an
Authorized Lessee Representative, which shall specify the Completion Date and
shall state that (a) construction of the Project has been completed and the Cost
of the Project has been paid, except for any Cost of the Project which has been
incurred but is not then due and payable, or the amount of which, or the
liability for the payment of which, is being contested or disputed by the
Lessee, and for the payment of which the Trustee is directed to retain specified
amounts of moneys in specified accounts within the Construction Fund, and (b)
the Project is suitable for its intended purposes. Notwithstanding the
foregoing, such certificate may state that it is given without prejudice to any
rights of the Lessee against third parties which exist at the date thereof or
which may subsequently come into being.
SECTION 3.5. Insufficient Moneys in Construction Fund. In the event the
moneys in the Construction Fund available for payment of the Costs should not be
sufficient to pay the Costs in full, the Lessee agrees to pay that portion of
the Costs in excess of the moneys available therefor.
The Lessor does not make any warranty, either express or implied, that the
moneys which will be paid into the Construction Fund and will be available for
payment of the Costs will be sufficient to pay the Costs in full.
If the Lessee shall make any payments pursuant to this Section, it shall
not be entitled to any reimbursement therefor from the Issuer, the Trustee or
the holders of any of the Bonds.
-7-
ARTICLE IV
EFFECTIVE DATE OF THIS AGREEMENT;
DURATION OF LEASE TERM; RENTAL PROVISIONS
SECTION 4.1. Effective Date of this Agreement; Duration of Lease Term. This
Agreement shall become effective upon its delivery, and the leasehold estate
created in this Agreement shall commence on such date and subject to the
provisions of this Agreement (including particularly Articles IX and X hereof),
shall expire, unless extended with the mutual consent of the parties hereto,
August 1, 2018, or if the Bonds have not then been fully paid and retired (or
provision for such payment made as provided in the Indenture), on such date as
such payment or provision shall have been made within one year thereof, or as
provided in Article X hereof (the "Lease Term").
SECTION 4.2. Demise of the Project; Delivery and Acceptance of Possession.
The Lessor hereby demises and lets to the Lessee and the Lessee hereby takes and
leases from Lessor, for the duration of the Lease Term, the following described
property in connection with the Leased Facilities: (i) the Project; (ii) the
Land; (iii) all accretions, servitudes, hereditaments, and appurtenances
belonging or anywise appertaining to the immovable property and improvements
referred to in subpart (i) or (ii) herein; and (iv) all property of every
nature, including immovable property, movable property and intangible property,
which are purchased or acquired from the proceeds of the Bonds.
The Lessee has conveyed, or caused to be conveyed, to the Lessor that
portion of the Leased Facilities in existence on the date hereof and agrees that
the Lessor will automatically own and be vested in ownership of the remainder of
the Leased Facilities that it has acquired, constructed and installed or will
acquire, construct and install during the Lease Term. The Lessor hereby delivers
to the Lessee sole and exclusive possession of the Leased Facilities, now or
hereafter existing (subject to the right of the Lessor and the Trustee to enter
thereon for inspection purposes and to the other provisions of Section 7.2
hereof) and the Lessee hereby accepts possession of the Leased Facilities. The
Lessor covenants and represents that so long as the Lessee has paid the rent and
all other sums payable by it hereunder, and has duly observed all the covenants
and agreements herein contained on its part to be performed, the Lessee shall
have, hold and enjoy, during the Lease Term, peaceful, quiet and undisturbed
possession of the Leased Facilities subject to the terms and provisions hereof,
and the Lessor shall from time to time take all necessary action to that end.
Lessor and Lessee agree to enter into any additional conveyances, if any,
necessary or desirable, from time to time, to evidence ownership of the Leased
Facilities in the Lessor.
SECTION 4.3. Rents and Other Amounts Payable. The Lessee agrees to pay for
the rental for the Leased Facilities, such sums of money as are required to meet
the payment of the principal, interest and redemption premium, if any, due or to
become due on the Bonds, and all other sums as required by subsections (a), (b)
and (c) of this Section.
(a) The Lessee agrees to pay to the Trustee, acting as the paying
agent (or to the Bondholders as provided in the final paragraph of Section
2.02(d) of the Indenture), in immediately available funds until the
principal of and interest and any redemption premium on all of the Bonds
shall have been fully paid or provisions for the payment thereof shall have
been made in accordance with the Indenture, (1) an aggregate amount equal
to the sum of (i) interest coming due on each monthly interest payment date
on all outstanding Bonds; plus (ii) the principal amount of all outstanding
Bonds maturing on such interest payment date; plus (iii) the principal
amount of and premium, if any, on the Bonds to be redeemed in accordance
with the provisions of the Indenture on such interest payment date and (2)
on any date on which (i) all the Bonds shall be declared to be and shall
become due and payable prior to their stated maturities pursuant to the
provisions of the Indenture, or (ii) all or part of the Bonds are to be
redeemed pursuant to the provisions of the
-8-
Indenture, the aggregate amount of principal, premium, if any, and interest
so becoming due and payable on all the Bonds; provided, however, in the
case of each such payment, the amount thereof shall be reduced by an amount
equal to any amount then held by the Trustee in the Bond Fund in excess of
the amount held and required for payment of (i) any Bonds theretofore
matured or called for redemption and (ii) past due interest, in all cases
where such Bonds have not been presented for payment. If at any time the
amount held by the Trustee in the Bond Fund and available therefor shall be
sufficient to pay at the time required the principal of and interest and
redemption premium, if any, on all of the Bonds then remaining unpaid
together with any amounts accrued under subsection (b) of this Section, the
Lessee shall not be obligated to make any further payments under the
provisions of subsections (a) and (b) of this Section. As long as the
Purchaser is the owner of all of the Bonds, the Lessee may pay such amounts
directly to the Purchaser.
(b) The Lessee agrees to pay to the Trustee, acting as the paying
agent, until the principal of and interest and any redemption premium on
all the Bonds shall have been fully paid or provision for the payment
thereof shall have been made in accordance with the provisions of the
Indenture, (i) the annual fees of the Trustee for the Ordinary Services of
the Trustee rendered and its Ordinary Expenses incurred under the Indenture
as and when the same become due, plus any reasonable counsel fees and
expenses incurred, (ii) the reasonable fees and charges of the Trustee, as
bond registrar and paying agent, and the reasonable fees and charges of any
agent of the Trustee acting as paying agent for the Bonds as and when the
same become due, and (iii) the reasonable fees and charges of the Trustee
for necessary Extraordinary Services rendered by it and Extraordinary
Expenses incurred by it under the Indenture, as and when the same become
due; provided, that the Lessee may, without creating a default hereunder,
contest in good faith the necessity for any such Extraordinary Services and
Extraordinary Expenses and the reasonableness of any such fees, charges or
expenses.
Rental payments hereunder shall first be applied in the following order:
(i) amounts due under paragraph (b) above; and
(ii) amounts due under paragraph (a) above.
In the event the Lessee should fail to make any of the payments required in
this Section, the item or installment so in default shall continue as an
obligation of the Lessee until the amount in default shall have been fully paid
and the Lessee agrees to pay the same with interest thereon (to the extent
permitted by law) until paid at the rate per annum which is one percentage point
greater than the highest rate per annum borne by any of the Bonds issued under
the Indenture.
SECTION 4.4. Place of Rental Payments. The rent provided for in Section
4.3(a) hereof shall be paid directly to (i) the Trustee for the account of the
Lessor or (ii) the Bondholder if the Purchaser is the Bondholder and shall be
applied to pay the principal of, interest and premium, if any, on the Bonds in
accordance with the provisions of the Indenture. The additional payments to be
made to the Trustee under Section 4.3(b) hereof shall be paid directly to the
Trustee for their own use.
SECTION 4.5. Obligations of Lessee Hereunder Unconditional. The obligations
of the Lessee to make the payments required in Section 4.3 hereof and to perform
and observe the other agreements on its part contained herein shall be absolute
and unconditional and shall not be subject to diminution by set-off,
counterclaim, abatement or otherwise and until such time as the principal of and
interest and any redemption premium on the Bonds shall have been fully paid or
provision for the payment thereof shall have been made in accordance with the
Indenture, the Lessee (i) will not suspend or discontinue any payments provided
for in Section 4.3 hereof, (ii) will perform and observe all of its other
agreements contained in this Agreement and (iii) except as provided in Section
10.1 will not terminate the Lease Term for any cause including, without
-9-
limiting the generality of the foregoing, any acts or circumstances that may
constitute failure of consideration, destruction of or damage to the Leased
Facilities, condemnation of the Leased Facilities, commercial frustration of
purpose, any change in the tax or other laws of the United States of America or
of the State or any political subdivision of either, or any failure of the
Lessor to perform and observe any agreement, whether expressed or implied, or
any duty, liability or obligation arising out of or connected with this
Agreement. Nothing contained in this Section shall be construed to release the
Lessor from the performance of any of the agreements on its part herein
contained; and in the event the Lessor should fail to perform any such agreement
on its part, the Lessee may institute such action against the Lessor as the
Lessee may deem necessary to compel performance or recover its damages for
non-performance so long as such action shall not do violence to the agreements
on the part of the Lessee contained in the first sentence of this Section;
provided, however, that the Lessor shall not be liable for monetary damages
absent its wilful breach of this Agreement, wilful misconduct, bad faith or
fraud and in no event shall any recourse be had against the Lessor other than
from the Trust Estate. The Lessee may, however, at its own expense and in its
own name or in the name of the Lessor, prosecute or defend any action or
proceeding or take any other action involving their persons which the Lessee
deems reasonably necessary in order to secure or protect its right of
possession, occupancy and use hereunder, and in such event the Lessor hereby
agrees to cooperate fully with the Lessee and to take all action necessary to
effect the substitution of the Lessee for the Lessor in any action or proceeding
if the Lessee shall so request. The covenant to pay rental shall be and is
hereby agreed to be independent of any other covenant in this Agreement.
-10-
ARTICLE V
MAINTENANCE, TAXES AND INSURANCE
SECTION 5.1. Maintenance and Modification by Lessee. The Lessee agrees that
during the Lease Term it will at its own expense keep the Leased Facilities in
as reasonably safe condition as its operations shall permit. The Lessee may also
at its own expense, make from time to time any additions, modifications or
improvements to the Leased Facilities it may deem desirable for its business
purposes. None of such additions, modifications and improvements shall become a
part of the Leased Facilities; provided further that any real or personal
property, machinery, equipment, furniture or fixtures installed by the Lessee
without expense to the Lessor and not constituting a part of the Leased
Facilities may be removed by the Lessee at any time and from time to time while
it is not in default under this Agreement; and provided further that any damage
to the Leased Facilities occasioned by such removal shall be repaired by the
Lessee at its own expense. The Lessee shall cause the Leased Facilities at all
times to be free from all encumbrances except Permitted Encumbrances and will
not permit any mechanics', laborers, materialmens' or other liens to be
established or remain against the Leased Facilities for labor or materials
furnished in connection with any additions, modifications, improvements,
repairs, renewals or replacements to the Project made by it; provided, that, if
the Lessee shall first notify the Trustee in writing of its intentions so to do,
the Lessee may in good faith contest any mechanics', laborers', materialmens' or
other liens filed or established against the Leased Facilities, and in such
event may permit the items so contested to remain undischarged and unsatisfied
during the period of such contest and any appeal therefrom unless by non-payment
of any such items the lien of this Agreement will be materially endangered or
the Leased Facilities or any part thereof will be subject to loss or forfeiture,
in which event the Lessee shall promptly pay and cause to be satisfied and
discharged all such unpaid items or secure such payment by posting a bond, in
form satisfactory to the Trustee, with the Trustee. The Lessor will cooperate
fully with the Lessee in any such contest.
Lessee will with reasonable promptness make all structural and
non-structural, foreseen and unforeseen, and ordinary and extraordinary changes
and repairs of every kind and nature which may be required to be made upon or in
connection with the Leased Facilities or any part thereof in order to keep and
maintain the Leased Facilities in good repair and appearance. Lessor shall not
be required to maintain, repair, or rebuild the Leased Facilities or any part
thereof in any way, or to make any alterations, replacements or renewals of any
nature or description to the Leased Facilities or any part thereof, whether
ordinary or extraordinary, structural or non-structural, foreseen or unforeseen,
and Lessee hereby expressly waives any right to make repairs at the expense of
Lessor, which right may be provided for in any statute or law in effect at the
time of the execution and delivery hereof or of any other statute or law which
may thereafter be enacted.
SECTION 5.2. Removal of Leased Facilities. The Lessor shall not be under
any obligation to renew, repair or replace any item of inadequate, obsolete,
worn out, unsuitable, undesirable or unnecessary equipment, fixtures or
furnishings comprising a part of the Leased Facilities. In any instance where
the Lessee in its sound discretion determines that any items of Leased
Facilities have become inadequate, obsolete, worn out, unsuitable, undesirable
or unnecessary, the Lessee may remove such items of the Leased Facilities and
(on behalf of the Lessor) sell, trade-in, exchange or otherwise dispose of them
(as a whole or in part) without any responsibility or accountability to the
Lessor or the Trustee therefor.
The removal of any portion of the Leased Facilities pursuant to the
provisions of this Section shall not entitle the Lessee to any abatement or
diminution of the rents payable under Section 4.3 hereof.
-11-
SECTION 5.3. Taxes and Other Governmental Charges and Utility Charges.
Subject to Section 5.8 hereof, the Lessee agrees to pay, as the same,
respectively, become due, all taxes and governmental charges of any kind
whatsoever that may at any time be lawfully assessed or levied against or with
respect to the Leased Facilities or any structures or other property installed
or brought by the Lessee therein or thereon or with respect to the original
issuance of the Bonds, including, without limiting the generality of the
foregoing, any taxes levied upon or with respect to the original issuance of the
Bonds, any taxes levied upon or with respect to the income or profits of the
Lessor from the Leased Facilities which, if not paid, would become a lien or a
charge on the revenues and receipts from the leasing of the Leased Facilities
prior to or on a parity with the lien and charge under the Indenture thereon and
the pledge or assignment thereof to be created and made in the Indenture and
including all ad valorem taxes lawfully assessed upon the leasehold estate
hereby granted and demised and leased to the Lessee, all utility and other
charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Leased Facilities and all assessments and charges lawfully made by any
governmental body for public improvements that may be secured by a lien on the
Leased Facilities; provided, that with respect to special assessments or other
governmental charges that may lawfully be paid in installments over a period of
years, the Lessee shall be obligated to pay only such installments as are
required to be paid during the Lease Term.
The Lessee may, at its expense and in its own name and on behalf or in the
name and on behalf of the Lessor, in good faith contest any such taxes,
assessments and other charges and, in the event of any such contest, may permit
the taxes, assessments or other charges so contested to remain unpaid during the
period of such contest and any appeal therefrom unless by non-payment of any
such items the lien of this Agreement will be materially endangered or the
Leased Facilities or any part thereof will be subject to loss or forfeiture, in
which event such taxes, assessments or charges shall be paid promptly or secured
by posting a bond, in form satisfactory to the Lessor, with the Trustee. The
Lessor will cooperate fully with the Lessee in any such contest. In the event
that the Lessee shall fail to pay any of the foregoing items required by this
Section to be paid by the Lessee, the Lessor or the Trustee may (but shall be
under no obligation to) pay the same and any amounts so advanced therefor by the
Lessor or the Trustee shall become an additional obligation of the Lessee to the
one making the advancement, which amounts, from the date thereof, together (to
the extent permitted by law) with interest thereon until paid at a rate per
annum which is one percentage point greater than the highest rate per annum
borne by any of the Bonds issued under the Indenture, the Lessee agrees to pay.
The Lessor does hereby acknowledge that, subject to the applicable law of the
State, and provided no event of default (as defined in Section 9.1 hereof)
exists, the Leased Facilities are to be exempt from ad valorem taxes.
SECTION 5.4. Insurance Required. Throughout the Lease Term, the Leased
Facilities shall be considered an asset of the Lessee for the purpose of its
insurance practices, and as such the Leased Facilities and the Lessee's
activities related thereto shall be insured by the Lessee against such risks and
in such amounts as are consistent with the insurance practices of the Lessee,
including but not limited to, the following:
(a) Insurance against loss and/or damage to the Leased Facilities
covering such risks ordinarily insured against with respect to similar
facilities.
(b) Comprehensive general public liability insurance for injuries to
persons and/or property occurring in or about the Leased Facilities, in the
minimum amount of $1,000,000 per person and $3,000,000 per occurrence for
bodily injury and $1,000,000 per occurrence for property damage; and
-12-
(c) Worker's compensation insurance or self-insurance with respect to
all employees of the Lessee in such manner and amount as is required by
Louisiana law as related to worker's compensation law.
Each policy of insurance shall be issued by a recognized, responsible
insurance company qualified under the laws of the State to assume the risks
covered by such policy or policies or bond or bonds. To the extent the Lessee at
any time shall carry insurance with reference to the Leased Facilities, the
Lessor and the Trustee shall be named as additional insureds as their interests
may appear and the Lessee hereby agrees to furnish to the Trustee and the Lessor
copies of insurance certificates on or before January 30 of each year and upon
any change in such insurance.
SECTION 5.5. Application of Net Proceeds of Insurance. The Net Proceeds of
any insurance carried pursuant to the provisions of Section 5.4 hereof shall be
applied as follows: (i) the Net Proceeds of insurance, other than liability or
worker's compensation insurance, shall be applied as provided in Section 6.1
hereof and (ii) the Net Proceeds of the liability or worker's compensation
insurance shall be applied toward extinguishment or satisfaction of the
liability with respect to which such insurance proceeds may be paid.
SECTION 5.6. Additional Provisions Respecting Insurance. All such policies,
or a certificate or certificates of the insurers that such insurance is in force
and effect, shall be deposited with the Trustee; and prior to expiration of any
such policy, the Lessee shall furnish the Trustee with evidence satisfactory to
the latter that the policy has been renewed or replaced or is no longer required
by this Agreement.
In lieu of separate policies, the Lessee may maintain blanket policies
having the same coverage required herein in which event it shall deposit with
the Trustee a certificate or certificates of the respective insurers as to the
amount of coverage in force upon the Leased Facilities.
SECTION 5.7. Reserved.
SECTION 5.8. Exemption From Ad Valorem Taxation. It is the intent and
agreement of the Lessor and Lessee that the Leased Facilities shall be owned by
the Lessor and exempt from ad valorem taxes for the term of this Agreement.
However, the Lessor shall not be responsible for or liable for any different
result.
SECTION 5.9. Environmental Matters. The Lessee shall keep and maintain the
Leased Facilities in compliance with, and shall not cause or permit the Leased
Facilities to be in violation of, any federal, state, or local laws, ordinances
or regulations relating to industrial hygiene or to the environmental conditions
("Hazardous Materials Laws") on, under, about, or affecting the Leased
Facilities. The Lessee shall not use, generate, manufacture, store, or dispose
of on, under or about the Leased Facilities or transport to or from the Leased
Facilities any flammable explosives, radioactive materials, hazardous wastes,
toxic substances, or related materials, including without limitation any
substances defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," or "toxic substances" under any
applicable federal or state laws or regulations (collectively referred to herein
as "Hazardous Materials"), other than in accordance with the Hazardous Materials
laws.
The Lessee shall be solely responsible for, and shall indemnify and hold
harmless the Lessor, the Purchaser and the Trustee from and against, any loss,
damage, costs, expense, or liability, directly or indirectly, arising out of or
attributable to the use, generation, storage, release, threatened release,
discharge, disposal, or presence of Hazardous Material on, under or about the
Leased Facilities, including without limitation: (i) all foreseeable
consequential damages; (ii) the cost of any required or necessary repair,
clean-up or detoxification
-13-
of the Leased Facilities, and the preparation and implementation of any closure,
remedial, or other required plans; and (iii) all reasonable costs and expenses
incurred by the Lessor and the Trustee in connection with clauses (i) and (ii),
including but not limited to reasonable attorney's fees and expenses. The Lessee
shall, at its expense, take all necessary remedial action(s) in response to the
presence of any Hazardous Material on, under or about the Leased Facilities,
other than in accordance with the Hazardous Materials laws. The indemnification
covenants of the Lessee set forth in this paragraph shall survive the
termination of this Agreement.
The said release and indemnification covenants of the Lessee shall apply
equally to the officers and employees of the Lessor and to its Board of
Directors and to the officers and employees of the Trustee and to its Board of
Directors.
-14-
ARTICLE VI
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 6.1. Damage and Destruction. (a) The Lessee agrees to notify the
Trustee and the Purchaser immediately in writing of any material fire or other
casualty to or accident involving any of the Leased Facilities, whether or not
such fire, casualty or accident is covered by insurance. The Lessee further
agrees to notify promptly the Lessee's insurance company and to submit an
appropriate claim and proof of claim to the respective insurance company if any
of the Leased Facilities is damaged or destroyed by fire or other casualty.
(b) If there is a fire or casualty loss which damages a portion (but not
all) of the improvements on any of the Leased Facilities and as long as no
default has occurred and is continuing, then the proceeds of the insurance shall
be deposited into a cash collateral account with the Purchaser and such proceeds
will be applied to the payment of the cost of restoration of the Leased
Facilities upon such terms and conditions as the Purchaser may deem necessary or
appropriate in its reasonable discretion; provided, however, that (i) such
insurance proceeds must be adequate to cover the cost of restoration of the
Leased Facilities, or if the proceeds are insufficient, then the Lessee shall
give the Purchaser such adequate protection and assurance as the Purchaser may,
in its reasonable discretion require, that additional funds will be provided by
the Lessee in order to complete the restoration of the Leased Facilities, and
(ii) the Lessee shall have provided the Purchaser with such adequate protection
and assurance as Purchaser may, in its reasonable discretion require, that the
Lessee has sufficient funds on hand to pay interest and principal on the Bonds
during the restoration period. In connection with any restoration of any of the
Leased Facilities, the Lessee shall provide the Purchaser with a detailed cost
breakdown showing by line item all costs projected for such restoration and a
revised and updated cost breakdown shall be furnished by the Lessee to the
Purchaser on a monthly basis, as may be required by the Purchaser.
(c) If there is a fire or casualty loss which constitutes a total loss or a
constructive total loss of any of the Leased Facilities and the Lessee decides
not to rebuild the Leased Facilities, or if all of the conditions set forth in
subclause (i) through (iii) of Section 6.1 (b) are not satisfied, then the
insurance proceeds shall be applied to the payment of the Bonds. If such
insurance proceeds are not sufficient to pay the Bonds in full, the Lessee shall
remain liable to pay the deficiency; and if the proceeds exceed the amount
necessary to pay the Bonds in full, then such excess shall be paid to the
Lessee. If the Lessee decides to rebuild the Leased Facilities, the provisions
of Section 6.1 (b) must be satisfied.
(d) The Lessee shall not, by reason of the payment of any costs, be
entitled to any reimbursement from the Lessor, the Trustee or the holders of the
Bonds, or any abatement or diminution of the rents payable under Section 4.3
hereof; provided , however, that as the result of such damage, the Lessee shall
not be required to pay more as Services Rent to the recipients of the Services
Rent than would be paid to such recipients, if the Project were subject to ad
valorem tax.
SECTION 6.2. Condemnation. Unless the Lessee shall exercise its option to
purchase pursuant to the provisions of Section 10.1 hereof, in the event that
title to, or the temporary use of, the Project or any part thereof shall be
taken under the exercise of the power of eminent domain by any governmental body
or by any person, firm or corporation acting under governmental authority, the
Lessee shall be obligated to continue to make the rental payments specified in
Section 4.3 hereof. Lessee shall be entitled to all condemnation proceeds.
-15-
The Lessor shall cooperate fully with the Lessee in the handling and
conduct of any prospective or pending condemnation proceeding with respect to
the Project or any part thereof and will, to the extent it may lawfully do so,
permit the Lessee to litigate in any such proceeding in the name and behalf of
the Lessor. In no event will the Lessor voluntarily settle, or consent to the
settlement of, any prospective or pending condemnation proceeding with respect
to the Project or any part thereof without the written consent of the Lessee.
The Lessee shall have the discretion to restore the Leased Facilities and
use the proceeds of any condemnation proceedings provided that the provisions of
Section 6.1 (b) have been satisfied. If all of the conditions set forth in
subclause (i) through (iii) of Section 6.1 (b) are not satisfied, then the
condemnation proceeds shall be applied to the payment of the Bonds. If such
condemnation proceeds are not sufficient to pay the Bonds in full, the Lessee
shall remain liable to pay the deficiency; and if the proceeds exceed the amount
necessary to pay the Bonds in full, then such excess shall be paid to Lessee.
SECTION 6.3. Condemnation of Lessee-Owned Property. The Lessee shall be
entitled to the Net Proceeds of any condemnation award or portion thereof made
for the damages to or takings of its own property other than the Project.
-16-
ARTICLE VII
SPECIAL COVENANTS
SECTION 7.1. No Warranty of Condition or Suitability by the Lessor. The
Lessor makes no warranty, either expressed or implied, as to the condition of
the Leased Facilities or that it will be suitable for the Lessee's purposes or
needs.
SECTION 7.2. Inspection of the Leased Facilities. The Lessee agrees that
the Lessor, the Trustee or either of their duly authorized agents shall have the
right at all reasonable times and upon reasonable notice to enter upon the
Leased Facilities and to examine and inspect the Leased Facilities. The Lessee
further agrees that the Lessor and the Trustee and their duly authorized agents
shall have such rights of access to the Leased Facilities as may be reasonably
necessary to enforce the rights of the Lessor contained in this Agreement and
for the proper maintenance of the Leased Facilities in the event of failure by
the Lessee to perform its obligations under Section 5.1 hereof.
SECTION 7.3. Lessee to Maintain its Corporate Existence; Conditions Under
Which Exceptions Permitted. The Lessee agrees that during the Lease Term it will
maintain its corporate existence, will not dissolve or otherwise dispose of all
or substantially all of its assets and will not consolidate with or merge into
another entity or permit one or more other entities to consolidate with or merge
into it; provided that the Lessee may, without violating the agreement contained
in this Section, consolidate with or merge into another entity, or permit one or
more other entities to consolidate with or merge into it, or sell or otherwise
transfer to another entity all or substantially all of its assets as an entirety
and thereafter dissolve, provided the surviving, resulting or transferee entity
(i) is a entity organized and in good standing under the laws of one of the
States of the United States of America, (ii) has a net worth immediately after
such action not less than that of the Lessee immediately prior to such action,
and (iii) irrevocably and unconditionally assumes by means of an instrument in
writing all of the obligations of the Lessee herein.
SECTION 7.4. Qualification in the State. The Lessee warrants that it is and
throughout the Lease Term it will continue to be duly qualified to do business
in the State.
SECTION 7.5. Release and Indemnification Covenants. The Lessee releases the
Lessor and the Trustee from, agrees that the Lessor and the Trustee shall not be
liable for and agrees to hold the Lessor and the Trustee harmless against, any
loss or damage to property or any injury to or death of any person that may be
occasioned by any defect in the Leased Facilities or by any cause whatsoever;
provided, that the indemnity provided in this sentence shall be effective only
to the extent of any loss that might be sustained by the Lessor in excess of the
Net Proceeds received from any insurance carried with respect to the loss
sustained. The said release and indemnification covenants of the Lessee shall
apply equally to the officers and employees of the Lessor and to its Board of
Directors and the officers and employees of the Trustee and to its Board of
Directors. The provisions of this Section 7.5 shall survive the termination of
this Agreement. The Lessor covenants and agrees that the Lessor will not
undertake or initiate any undertakings in connection with the performance of its
obligations hereunder (other than with respect to the enforcement of its rights
hereunder without the prior reasonable consent of the Lessee).
Whenever under the provisions of this Agreement the approval of the Lessee
is required or the Lessor is required to take some action at the request of the
Lessee, such approval shall be given or such request shall be made by the
Authorized Lessee Representative unless otherwise specified in this Agreement
and the Lessor
-17-
shall be authorized to act on any such approval or request and the Lessee shall
have no complaint against the Lessor as a result of any such action taken.
Furthermore, the Lessee agrees to reimburse the reasonable expenses
incurred by the Lessor pursuant to this Section in the performance of its
obligations under this Agreement and the Indenture not otherwise provided for
under the terms of such documents and not being performed on behalf of the
Lessor by the Trustee or the Lessee, as the case may be.
SECTION 7.6. Financial Statements of Lessee. The Lessee agrees that it will
during the Lease Term furnish to the Trustee (only if requested by the Trustee)
and Bondholder:
(a) Annual Reports - as soon as available and in any event within
ninety (90) days after the close of each fiscal year of the Lessee, the
audited balance sheet of the Lessee as at the end of such year, the audited
statements of income and cash flow of the Lessee for such year, setting
forth in each case in comparative form, the corresponding figures for the
preceding fiscal year, accompanied by the unqualified opinion of an
independent certified public accountant acceptable to the Bondholder.
(b) Interim Reports - as soon as available and in any event within
forty-five (45) days after March 31, June 30 and September 30, the
unaudited balance sheet of the Lessee as of March 31, June 30 and September
30, and the unaudited statements of income and of Lessee for such period
then ending, setting forth in each case in comparative form, the
corresponding figures for the preceding period, certified correct by the
chief executive officer or controller of the Lessee.
All balance sheets and other financial reports referred to above shall be
in such detail as the Bondholder may reasonably request and shall conform to
generally accepted accounting principles applied on a consistent basis, except
only for such changes in accounting principles or practice with which the
independent certified public accountants concur. For purposes of this Section
7.6, the receipt of consolidated financial statements for Xxxxxx Industries,
Inc., parent company of the Lessee, shall satisfy these reporting requirements.
SECTION 7.7. Estoppel Certificate. Lessor and Lessee shall, from time to
time, upon not less than 20 days prior request by the other, execute,
acknowledge and deliver to the other a statement in writing, executed by an
authorized officer certifying (i) that this Agreement is unmodified and in full
force and effect (or, if there have been modifications, that this Agreement is
in full force and effect as modified, setting forth such modifications), (ii)
the dates through which all rent and all other sums payable hereunder have been
paid, and (iii) that to the knowledge of the signer of such certificate no
default by either Lessor or Lessee exists hereunder or specifying each such
default of which the signer may have knowledge. It is intended that any such
statements may be relied upon by the recipient of such statements or their
assignees, or by any prospective purchaser or mortgagee of the Leased
Facilities.
SECTION 7.8. Assignment of Warranties, Guaranties, Indemnities. Lessor
hereby assigns without recourse or warranty whatsoever, to the Lessee, for the
duration of this Agreement all Lessors' interest in all warranties, contractual
rights, guaranties and indemnities, express/implied, and similar rights which
Lessor may have against any seller, engineer or consultant in respect of the
Leased Facilities, including without limitation, any rights and remedies
existing by contract. So long as no default has occurred and is continuing
hereunder and until the expiration or termination of this Agreement, the Lessee
shall have the right (at its sole cost and expense) to enforce any such
warranty, contractual right, guaranty or indemnity in the name of the Lessee or
the Lessor. Lessor hereby agrees to deliver and execute at the Lessee's expense,
such further documents (including powers of attorney) as the Lessee may
reasonably request, in order that the Lessee may
-18-
have the full benefit of the assignment effected or intended to be effected by
this paragraph and the ability to enforce such warranties, guaranties and
indemnities.
-19-
ARTICLE VIII
ASSIGNMENT; SUBLEASING; SELLING; REDEMPTION;
RENT PREPAYMENT AND ABATEMENT
SECTION 8.1. Assignment and Subleasing. This Agreement may be assigned, and
the Leased Facilities may be subleased as a whole or in part, by the Lessee
without the necessity of obtaining the consent of either the Lessor or the
Trustee, subject, however, to each of the following conditions:
(a) No assignment (other than pursuant to Section 7.3 hereof) or
subleasing shall relieve the Lessee from primary liability for any of its
obligations hereunder, and in the event of any such assignment or
subleasing the Lessee shall continue to remain primarily liable for payment
of the rents specified in Section 4.3 hereof and for performance and
observance of the other agreements on its part herein provided to be
performed and observed by it.
(b) The assignee or sublessor shall assume the obligations of the
Lessee hereunder to the extent of the interest assigned or subleased.
(c) The Lessee shall, within thirty (30) days after the delivery
thereof, furnish or cause to be furnished to the Lessor and to the Trustee
a true and complete copy of each such assignment and sublease, as the case
may be.
SECTION 8.2. Transfer of Lessor's Interest in Leased Facilities. Subject to
the provisions of Article IX and X hereof, the Lessor agrees that, except for
the assignment of this Agreement and the rentals hereunder to the Trustee (to
all of which the Lessee hereby consents) pursuant to the Indenture, it will not
sell, assign, convey, encumber or otherwise dispose of any part of the Leased
Facilities during the Lease Term. If the laws of the State at the time shall
permit such sale, assignment, transfer or conveyance to be taken, nothing
contained in this Section shall prevent the consolidation of the Lessor with, or
merger of the Lessor into, or transfer of title to the Leased Facilities as an
entirety to, any public entity whose property and income are not subject to
taxation and which has corporate authority to carry on the business of owning
and leasing the Leased Facilities; provided, that upon any such consolidation,
merger or transfer, the due and punctual payment of the principal of, premium,
if any, and interest on the Bonds according to their tenor, and the due and
punctual performance and observance of all the contracts and conditions of this
Agreement to be kept and performed by the Lessor, shall be expressly assumed in
writing by the entity resulting from such consolidation or surviving such merger
or to which the Leased Facilities shall be transferred as an entirety.
SECTION 8.3. Redemption of Bonds. If the Lessee is not in default in the
payment of rents under Section 4.3 hereof, the Lessor, at the request of the
Lessee, shall forthwith take all steps that may be necessary under the
applicable redemption provisions of the Indenture to effect redemption of all or
part of the then outstanding Bonds as may be specified by the Lessee, on such
redemption date as may be specified by the Lessee.
SECTION 8.4. Prepayment of Rents. There is expressly reserved to the Lessee
the right, and the Lessee is authorized and permitted, at any time it may
choose, to prepay all or any part of the rents payable under Section 4.3 hereof,
and the Lessor agrees that the Trustee may accept such prepayments of rents when
the same are tendered by the Lessee. All rents so prepaid shall be deposited in
the Bond Fund and credited on the rental payments specified in Section 4.3
hereof in the order of their due dates, and at the election of the
-20-
Lessee shall be used for the redemption or purchase of outstanding Bonds in the
manner and to the extent provided in the Indenture.
SECTION 8.5. Lessee Entitled to Conveyance of the Leased Facilities if
Bonds Paid Prior to Maturity. If at any time the aggregate moneys in the Bond
Fund shall be sufficient to retire in accordance with the provisions of the
Indenture all of the Bonds at the time outstanding and to pay all fees and
charges of the Trustee and the expenses of the Lessor due or to become due
through the date on which the last of the Bonds is to be retired, and all other
amounts owed to the Lessor under this Lease Agreement, the Lessee shall be
entitled to the conveyance of the Leased Facilities pursuant to Sections 10.2
and 10.3 hereof.
SECTION 8.6. Installation of Lessee's Own Machinery and Facilities;
Landlord's Lien Thereon. In addition to the machinery and equipment installed by
the Lessee under the provisions of Section 5.1 hereof which does not become part
of the Leased Facilities the Lessee may from time to time, in its sole
discretion and at its own expense, install additional machinery and equipment at
the site of the Leased Facilities. Except as provided in Section 8.7 hereof, all
machinery and equipment so installed by the Lessee shall remain the sole
property of the Lessee in which neither the Lessor nor the Trustee shall have
any interest, may be modified or removed at any time which the Lessee is not in
default hereunder and shall not be subject to the lien of this Agreement.
Nothing contained in the preceding provisions of this Section shall prevent the
Lessee from purchasing, after delivery of the Indenture, such additional
machinery and equipment on conditional sale contract or lease sale contract, or
subject to vendor's lien or purchase money mortgage, as security for the unpaid
portion of the purchase price thereof, and each such conditional sale contract,
lease sale contract, vendor's lien or purchase money mortgage made by the Lessee
with respect to machinery and equipment purchased by it under the provisions of
this Section after delivery of the Indenture shall be prior and superior to any
landlord's lien. The Lessee agrees to pay, unless in good faith contested by it,
as due the purchase price of and all costs and expenses with respect to the
acquisition and installation of any machinery and equipment installed by it
pursuant to this Section.
SECTION 8.7. Additional Real or Personal Property, Machinery, Equipment,
Furniture or Fixtures Constituting a Part of the Leased Facilities.
Notwithstanding any provision of this Agreement to the contrary, the Lessee may
elect to have any real or personal property, machinery, equipment, furniture or
fixtures acquired at the sole cost of the Lessee included in the Leased
Facilities by delivering to the Trustee and the Lessor written notice of the
Lessee's election to have such property included in the Leased Facilities. Upon
the filing of such written notice with the Trustee and the Lessor, such property
specified in said notice shall become a part of the Leased Facilities.
SECTION 8.8. References to Bonds Ineffective After Bonds Paid. Upon payment
in full of the Bonds (or provision for payment thereof having been made in
accordance with the provisions of the Indenture) and all fees and charges of the
Trustee, the paying agent and the Lessor, all references in this Agreement to
the Bonds and the Trustee shall be ineffective and neither the Trustee nor the
holder of any of the Bonds shall thereafter have any rights hereunder, saving
and excepting those that shall have theretofore vested.
-21-
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.1. Events of Default Defined. The following shall be "events of
default" under this Agreement and the terms "event of default" or "default"
shall mean, whenever they are used in this Agreement, any one or more of the
following events:
(a) Failure by the Lessee to pay or cause to be paid the rent and
other amounts required to be paid under Section 4.3 hereof at the times
specified therein.
(b) Failure by the Lessee to observe and perform any covenant,
condition or agreement in this Agreement on its part to be observed or
performed, other than as referred to in subsection (a) of this Section, for
a period of sixty (60) days after written notice, specifying such failure
and requesting that it be remedied, is given to the Lessee by the Lessor or
the Trustee or by the holders of not less than 25% in aggregate principal
amount of Bonds Outstanding, unless the Lessor and the Trustee (with any
required consent of Bondholders under the provisions of the Indenture)
shall agree in writing to an extension of such time prior to its expiration
in accordance with Section 1111 of the Indenture or as otherwise provided
in Section 1111 or Section 1112 thereof regarding a cure period.
(c) The dissolution or liquidation of the Lessee or the filing of the
Lessee of a voluntary petition in bankruptcy, or failure by the Lessee
promptly to institute judicial proceedings to lift any execution,
garnishment or attachment of such consequence as will impair its ability to
carry on its operations at the Leased Facilities, or the commission by the
Lessee of any act of bankruptcy, or adjudication of the Lessee as a
bankrupt, or assignment by the Lessee for the benefit of its creditors, or
the entry by the Lessee into an agreement of composition with its
creditors, or the approval by the court of competent jurisdiction of a
petition applicable to the Lessee in any proceeding for its reorganization
instituted under the provisions of the United States Bankruptcy Code, as
amended, or under any similar act which may hereafter be enacted. The term
"dissolution or liquidation of the Lessee", as used in this subsection,
shall not be construed to include the cessation of the corporate existence
of the Lessee resulting either from a merger or consolidation of the Lessee
into or with another entity or a dissolution or liquidation of the Lessee
following a transfer of all or substantially all of its assets as an
entirety, under the conditions permitting such actions contained in Section
7.3 hereof.
(d) The occurrence of a Default under the Loan Agreement after the
expiration of any applicable notice and cure provision contained in the
Loan Agreement shall be a default of this Agreement. The term "Loan
Agreement" shall mean that certain Third Amended and Restated Loan
Agreement by and among Whitney National Bank, Xxxxxx Shipyard, L.L.C.,
Orange Shipbuilding Company, Inc. and Xxxxxx Industries, Inc., dated July
18, 2002, as it may be amended, modified, supplemented or renewed from time
to time.
The foregoing provisions of this Section are subject to the following
limitations: If by reason of force majeure the Lessee is unable in whole or in
part to carry out its agreements on its part herein contained, other than the
obligations on the part of the Lessee contained in Article IV and Sections 4.3,
5.3, 5.4, 7.3 and 7.5 hereof, the Lessee shall not be deemed in default during
the continuance of such liability. The term "force majeure" as used herein shall
mean the following: acts of God; strikes, acts of terrorism, lockouts or other
industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State
-22-
or any of their departments, agencies, or officials, or any civil or military
authority; insurrections; riots; epidemics; landslides; lightning; earthquake;
fire; hurricanes; storms; floods; washouts; droughts; arrests; restraint of
government and people; civil disturbances; explosions; partial or entire failure
of utilities; or any other cause or event not reasonably within the control of
the Lessee. The Lessee agrees, however, to remedy with all reasonable dispatch
the cause or causes preventing the Lessee from carrying out its agreements;
provided, that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the Lessee, and the
Lessee shall not be required to make settlement of strikes, lockouts, and other
industrial disturbances by acceding to the demands of the opposing party or
parties when such course is in the judgment of the Lessee unfavorable to the
Lessee.
SECTION 9.2. Remedies on Default. In the event any of the Bonds shall at
the time be outstanding and unpaid and provision for the payment thereof shall
not have been made in accordance with the provisions of the Indenture, whenever
any event of default referred to in Section 9.1 hereof shall have happened and
be subsisting, the Lessor or the Trustee, where so provided, may take any one or
more of the following remedial steps:
(a) The Lessor, or the Trustee as provided in the Indenture, upon the
giving of written notice to the Lessee, may, at its option, declare all
installments of rent payable under Section 4.3 hereof for the remainder of
the Lease Term to be immediately due and payable, whereupon the same shall
become immediately due and payable.
(b) The Lessor, with the prior written consent of the Trustee, may
re-enter and take possession of the Leased Facilities without terminating
this Agreement, and lease the Leased Facilities for the account of the
Lessee, holding the Lessee liable for the difference between the rentals
and other amounts payable by such Lessee in such leasing and the rents and
other amounts payable by the Lessee hereunder.
(c) the Lessor, with the prior written consent of the Trustee, may
terminate the Lease Term, exclude the Lessee from possession of the Leased
Facilities and use its best efforts to lease the Leased Facilities to
another party.
(d) The Lessor or the Trustee may attempt to collect amounts due under
this Agreement or to enforce the performance and observance of any other
obligation or covenants of the Lessee under this Agreement by mandamus or
the appointment of a receiver in equity with power to charge and collect
amounts due hereunder and to apply such amounts in the manner required by
this Agreement and the Indenture.
(e) The Lessor or the Trustee may take whatever action at law or in
equity may appear necessary or desirable to collect the rent then due and
thereafter to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Lessee under this Agreement.
Any amounts collected pursuant to action taken under this Section shall be paid
into the Bond Fund and applied in accordance with the provisions of the
Indenture or, if the bonds have been fully paid (or provision for payment
thereof has been made in accordance with the provisions of the Indenture) to the
Lessee.
-23-
No action taken pursuant to this Section (including the repossession of the
Leased Facilities or termination of the Lease Term) shall relieve the Lessee
from the Lessee's obligations pursuant to Section 4.3 hereof, all of which shall
survive any such action.
SECTION 9.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Lessor or to the Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle the Lessor or the Trustee to exercise
any remedy reserved to it in this Article, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. Such rights
and remedies as are given the Lessor hereunder shall also extend to the Trustee
and the Trustee and the holders of the Bonds issued under the Indenture shall be
deemed third party beneficiaries of all covenants and agreements herein
contained.
SECTION 9.4. Agreement to Pay Attorney's Fees and Expenses.
(a) The Lessee agrees to reimburse the Lessor and the Trustee for expenses
incurred, including the employment of attorneys, in fulfilling the obligations
of the Lessor pursuant hereto.
(b) In the event the Lessee shall default under any of the provisions of
this Agreement and the Lessor or the Trustee shall employ attorneys or incur
other expenses for the collection of the rents or the enforcement of performance
or observance of any obligation or agreement on the part of the Lessee herein
contained, the Lessee agrees that it will on demand therefor pay to the Lessor
or the Trustee the reasonable fees of such attorneys and such other expenses so
incurred by the Lessor or the Trustee.
(c) This Section shall not require the Lessor to undertake any legal
proceeding with respect to this Agreement; provided, however, the Lessor does
agree that the Lessee or the Trustee may institute legal proceedings in the name
of the Lessor to protect their rights under this Agreement.
SECTION 9.5. No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
-24-
ARTICLE X
OPTIONS IN FAVOR OF LESSEE
SECTION 10.1. Options to Terminate. The Lessee shall have, and is hereby
granted, the option to purchase the Leased Facilities upon payment in full of
the Bonds (or provision for payment thereof having been made in accordance with
the provisions of the Indenture) throughout the Lease Term, subject to the
following provisions.
To exercise such option, the Lessee shall give written notice to the Lessor
and to the Trustee, if any of the Bonds shall then be unpaid and provision for
the payment thereof has not been made in accordance with the provisions of the
Indenture, and shall specify therein the date of closing such purchase, which
date shall be not less than forty-five (45) nor more than ninety (90) days from
the date such notice is mailed, and in case of a redemption of the bonds in
accordance with the provisions of the Indenture shall make arrangements
satisfactory to the Trustee for the giving of the required notice of redemption.
The purchase price payable by the Lessee shall be the sum of the following:
(1) an amount of money to be paid into the Bond Fund which, when added
to the amount then on deposit in the Bond Fund for payment of the bonds,
will be sufficient to pay, redeem or pay at maturity all of the then
outstanding Bonds on the next date on which such Bonds may be redeemed or
paid at maturity, including without limitation, principal, premium, if any,
all accrued interest to said date and redemption expenses, plus
(2) an amount of money equal to the Trustee's fees and expenses under
the Indenture, and the expenses of the Lessor accrued and to accrue until
such final payment and redemption of the Bonds, plus
(3) consideration in the amount of $1,000 to cover administrative fees
incurred in connection with such conveyance.
In the event of the exercise of the option granted in this Section any Net
Proceeds of insurance or condemnation not transferred to the Bond Fund for the
redemption or payment of the Bonds shall be paid to the Lessee and the Lease
Term shall be terminated.
SECTION 10.2. Conveyance of the Leased Facilities to the Lessee. The Lessor
shall upon the payment of all sums due to the Lessor under this Agreement, at
the expiration or sooner termination of the Lease Term following full payment of
the Bonds or provision for payment thereof having been made in accordance with
the provisions of the Indenture, convey the Leased Facilities to the Lessee. The
Lessee shall pay an administrative fee in connection therewith of $1,000.
SECTION 10.3. Conveyance at Closing. At the closing of any purchase
pursuant to any option to purchase or mandatory purchase, the Lessor will upon
receipt of the purchase price deliver to the Lessee documents conveying to the
Lessee title to the property being purchased, as such property then exists,
subject to the following: (i) those liens and encumbrances (if any) to which
title to said property was subject when conveyed to the Lessor; (ii) those liens
and encumbrances created by the Lessee or to the creation or suffering of which
the Lessee consented; (iii) those liens and encumbrances resulting from the
failure of the Lessee to perform or observe any of the agreements on its part
contained in this Agreement; and (iv) Permitted Encumbrances other than the
Indenture and this Agreement.
-25-
SECTION 10.4. Economic Benefits. The Lessor acknowledges, in addition to
the consideration recited for the option granted in this Article X and the other
consideration stated herein, that there will be multiple economic and other
advantages that will benefit St. Xxxx Xxxxxx, including employment, directly or
indirectly, additional tax revenues to the Lessor and the other governmental
agencies, attracting satellite and kindred industries to St. Xxxx Xxxxxx, and
stimulating many collateral benefits to present residents of St. Xxxx Xxxxxx who
are engaged in the business of providing supplies and services.
SECTION 10.5. Release of Leased Facilities. The Lessor or the Trustee as
assignee of the Lessor, is hereby authorized to release portions of the Leased
Facilities and convey them to the Lessee for no consideration, other than
reasonable expenses, provided that the remaining Leased Facilities maintains a
value of at least 120% of the outstanding Bonds as determined in a written
appraisal approved by the Purchaser. Such release and/or transfer shall be
conducted and accomplished in the manner and direction of the Lessee, subject to
payment of reasonable costs of the Lessor, Trustee and/or Bondholder.
SECTION 10.6. Option to Extend Lease Term. The Lease Term may be extended
upon the expiration thereof with the consent of the parties hereto at an annual
rental to be agreed upon and an annual in-lieu-of-ad valorem tax payment for a
term to be agreed upon.
-26-
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Surrender of Leased Facilities. Except as otherwise expressly
provided in this Agreement, at the expiration or sooner termination of the Lease
Term, the Lessee agrees to surrender possession of the Leased Facilities
peaceably and promptly to the Lessor in as good condition as at the commencement
of the Lease Term, loss by fire or other casualty covered by insurance,
condemnation and ordinary wear, tear and obsolescence only excepted.
SECTION 11.2. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given on the second
day following the day on which the same have been mailed by registered mail,
postage prepaid, addressed as follows: if to the Lessor, 0000 Xxxxxxx 00 Xxxx,
Xxxxxx Xxxx, Xxxxxxxxx 00000, Attention: President; or to such address as the
Lessor may from time to time file with the Trustee and the Lessee; if to the
Lessee, at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Xx.; and if to the Trustee, at Towermark Plaza,
00000 Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Division. A duplicate copy of each notice, certificate or other communication
given hereunder by either the Lessor or the Lessee and the Trustee may, by
notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
SECTION 11.3 Law Governing Construction of Agreement. This Agreement is
prepared and entered into with the intention that the laws of the State shall
govern its construction.
SECTION 11.4. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon the Lessor, the Lessee and their respective successors
and assigns, subject, however, to the limitations contained in Sections 7.3, 8.1
and 8.2 hereof.
SECTION 11.5. Severability. In the event any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
SECTION 11.6. Amounts Remaining in the Bond Fund. It is agreed by the
parties hereto that any amounts remaining in the Bond Fund upon expiration or
sooner termination of the Lease Term, as provided in this Agreement, after
payment in full of the Bonds (or provision for payment thereof having been made
in accordance with the provisions of the Indenture) and the fees, charges and
expenses of the Trustee and paying agent and the Lessor in accordance with the
Indenture shall belong to and be paid to the Lessee by the Trustee as
overpayment of the rents.
SECTION 11.7. Agreement Represents Complete Agreement. This Agreement
represents the entire contract between the parties. This Agreement may not be
modified or amended, except as otherwise provided in this Agreement or in the
Indenture, subsequent to the issuance of Bonds and prior to the payment in full
of the Bonds (or provision for the payment thereof having been made in
accordance with the provisions of the Indenture), and this Agreement may not be
effectively amended, changed, modified, altered or terminated without the
concurring written consent of the Trustee, given in accordance with the
provisions of the Indenture.
-27-
SECTION 11.8. Net Lease. This Agreement shall be deemed and construed to be
a "net lease", and the Lessee shall pay absolutely net during the Lease Term the
rent and all other payments required hereunder, free of any deductions, without
abatement, diminution or set-off other than those herein expressly provided.
SECTION 11.9. Execution of Counterparts. This Agreement may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
-28-
IN WITNESS WHEREOF, the Lessor has caused this Agreement to be executed by
its President or Vice President and has caused the seal of the Issuer to be
affixed hereto and attested by its Secretary-Treasurer.
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
PARISH OF ST. XXXX,LOUISIANA, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Vice President
ATTEST:
By: /s/ Xxxxx X. Xxxx
-------------------------------
Secretary-Treasurer [SEAL]
-29-
The Lessee has caused this Agreement to be executed in its behalf by its
duly authorized officer, all as of the day and year above written.
XXXXXX ALUMINUM, L.L.C.
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------
Treasurer/Secretary and Manager
-30-
EXHIBIT A
LEASED FACILITIES
Land
That certain tract or parcel of land lying and being situated in the lower end
of the Parish of St. Xxxx, in Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 13 East,
Southeastern Land District of Louisiana, forming part of the tract acquired by
Xxxxxxx Xxxxxx from the Jeanerette Lumber & Shingle Company, Ltd., by act dated
August 6, 1918 and duly recorded in Book 3-T, Page 304, Entry No. 45,346 of
Conveyance Records, St. Xxxx Xxxxxx, Louisiana. The tract herein sold and
conveyed being more particularly described as follows: Beginning at a Point "A"
at the northeast corner thereof, on the west side of the right-of-way limits of
U.S, Highway 90, thence a distance of 544.7' feet, more or less, to Point "F" on
the water's edge of Bayou Boeuf; thence along the water's edge of Bayou Boeuf in
a southeasterly direction to Point "E"; thence North 49 degrees east 300 feet,
more or less, to Point "D"; thence South 30 degrees 27 minutes East 42 feet,
more or less, to Point "C"; thence North 53 degrees 28 minutes east 445.5 feet,
more or less, to Point "B" on the right-of-way limits of U.S. Highway 90; thence
North 41 degrees West along said right-of-way limits 1075.7 feet, more or less,
to Point "A".
The said tract containing a total acreage of 15.63 acres, all as shown and
designated on survey of X.X. Xxxxxx dated May 7, 1946 attached to that act
recorded May 21, 1946 in St. Xxxx Xxxxxx COB 6-V, Folio 77, under Entry No.
74,242.
It is the intent of the Seller herein to include in the property herein conveyed
all of the property which it owns to the water's edge. This includes the
property which lies within the extension of the line between Points "D" and "E"
to the water's edge and the extension of the line between Points "A" and "F" to
the water's edge.
It is the intent of the Seller herein to include in the property conveyed herein
whatever reversionary rights it may have in and to the old roadbed running
across said property as shown on the survey described above.
Being the same property acquired by Marine Shale Processors, Inc. by Act of Cash
Sale from Xxxxx a Root Corporate Services, Inc. recorded January 18, 1996 in
Book 38-Q, Entry No. 251,507 of the conveyance Records of St. Xxxx Xxxxxx,
Louisiana.
Municipal address of the above described property is: 0000 X.X. Xxxxxxx 000
Xxxx, Xxxxxx, Xxxxxxxxx.
Project
Consists of financing the acquisition, construction and equipping of an aluminum
marine fabrication, repair and conversion facility to be located in Amelia, St.
Xxxx Xxxxxx, Louisiana, as more particularly described as follows:
Construction of an approximately 37,500 square foot building containing two
work bays, construction of parking facilities, construction of utility
improvements and land improvements to support the building and parking
facilities, refurbishment and extension of piers and bulkheads, and
acquisition of various equipment, including, but not limited to, air
compressors, iron workers and other various equipment items.
