EXHIBIT 10.4
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Trust Indenture
Between
The Industrial Development Board of the
Parish of St. Xxxx, Louisiana, Inc.
And
The Bank of New York Trust Company
of Florida, N.A.
Dated as of June 1, 2003
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$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
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Table of Contents
ARTICLE I DEFINITIONS
SECTION 101. Definitions of Terms............................................................-4-
ARTICLE II THE BONDS
SECTION 201. Authorized Amount of Bonds......................................................-9-
SECTION 202. Issuance of Bonds...............................................................-9-
SECTION 203. Execution; Limited Obligation..................................................-11-
SECTION 204. Authentication.................................................................-11-
SECTION 205. Form of Bonds..................................................................-11-
SECTION 206. Delivery of Bonds..............................................................-11-
SECTION 207. Mutilated, Lost, Stolen or Destroyed Bonds.....................................-12-
SECTION 208. Registration of Bonds; Persons Treated as Owners...............................-12-
ARTICLE III ISSUE OF BONDS; CONSTRUCTION FUND
SECTION 301. Issue of Bonds.................................................................-14-
SECTION 302. Issue of Additional Bonds......................................................-14-
SECTION 303. Creation of Construction Fund..................................................-14-
SECTION 304. Payments into Construction Fund................................................-14-
SECTION 305. Disbursements from Construction Fund...........................................-14-
SECTION 306. Balance in Construction Fund...................................................-15-
SECTION 307. Optional Redemption of Bonds...................................................-15-
SECTION 308. Reserved.......................................................................-15-
SECTION 309. Acceleration of Bonds..........................................................-15-
ARTICLE IV REDEMPTION OF BONDS BEFORE MATURITY; GENERAL REDEMPTION PROVISIONS
SECTION 401. Redemption Dates and Prices....................................................-16-
SECTION 402. Notice of Redemption...........................................................-16-
SECTION 403. Cancellation...................................................................-16-
SECTION 404. Partial Redemption of Bonds....................................................-16-
SECTION 405. Partial Prepayment of Bonds....................................................-16-
ARTICLE V MISCELLANEOUS PROVISIONS
SECTION 501. Payment of Principal and Interest..............................................-17-
SECTION 502. Performance of Covenants; Authority............................................-17-
SECTION 503. Payment of Taxes, Charges, Etc.................................................-17-
SECTION 504. Maintenance and Repair.........................................................-17-
SECTION 505. Inspection of Leased Facilities Books..........................................-17-
SECTION 506. List of Bondholders............................................................-17-
SECTION 507. Rights Under Lease Agreement...................................................-18-
SECTION 508. Ownership......................................................................-18-
ARTICLE VI REVENUES AND FUNDS
SECTION 601. Creation of Bond Fund..........................................................-19-
SECTION 602. Payments into the Bond Fund....................................................-19-
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SECTION 603. Use of Moneys in the Bond Fund.................................................-19-
SECTION 604. Custody of Bond Fund...........................................................-19-
SECTION 605. Non-presentment of Bonds.......................................................-20-
SECTION 606. Trustee's Fees, Charges and Expenses...........................................-20-
SECTION 607. Moneys to be Held in Trust.....................................................-20-
SECTION 608. Insurance and Condemnation Proceeds............................................-20-
SECTION 609. Repayment to the Lessee from the Bond Fund.....................................-20-
SECTION 610. Deposits under Guaranty Agreement..............................................-20-
ARTICLE VII CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 701. Deposits in the Bond Fund......................................................-21-
SECTION 702. Deposits in the Construction Fund..............................................-21-
ARTICLE VIII INVESTMENTS
SECTION 801. Investment of Moneys...........................................................-22-
ARTICLE IX POSSESSION, USE AND PARTIAL RELEASE OF LEASED FACILITIES
SECTION 901. Subordination to Rights of the Lessee..........................................-23-
SECTION 902. Release of Leased Facilities...................................................-23-
ARTICLE X DISCHARGE OF LIEN
SECTION 1001. Discharge of Lien of the Indenture.............................................-24-
SECTION 1002. Bonds Deemed to be Paid........................................................-24-
ARTICLE XI DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
SECTION 1101. Defaults; Events of Default....................................................-26-
SECTION 1102. Acceleration...................................................................-26-
SECTION 1103. Surrender of Possession of Leased Facilities; Rights and Duties of Trustee
in Possession..................................................................-26-
SECTION 1105. Right of Bondholders to Direct Proceedings.....................................-27-
SECTION 1106. Appointment of Receivers.......................................................-28-
SECTION 1107. Application of Moneys..........................................................-28-
SECTION 1108. Remedies Vested in Trustee.....................................................-29-
SECTION 1109. Rights and Remedies of Bondholders.............................................-29-
SECTION 1110. Termination of Proceedings.....................................................-29-
SECTION 1111. Waivers of Events of Default...................................................-30-
SECTION 1112. Notice of Defaults; Opportunity of Lessee to Cure Defaults.....................-30-
ARTICLE XII THE TRUSTEE
SECTION 1201. Acceptance of Trusts...........................................................-31-
SECTION 1202. Fees, Charges and Expenses of Trustee..........................................-33-
SECTION 1203. Notice to Bondholders if Default Occurs........................................-33-
SECTION 1204. Intervention by Trustee........................................................-33-
SECTION 1205. Successor Trustee..............................................................-33-
SECTION 1206. Resignation by the Trustee.....................................................-34-
SECTION 1207. Removal of the Trustee.........................................................-34-
SECTION 1208. Appointment of Successor Trustee by the Bondholders; Temporary Trustee.........-34-
SECTION 1209. Concerning Any Successor Trustees..............................................-34-
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SECTION 1210. Right Of Trustee to Pay Taxes and Other Charges................................-34-
SECTION 1211. Trustee Protected in Relying Upon Resolutions, etc.............................-35-
SECTION 1212. Successor Trustee as Trustee of Bond Fund; Paying Agent and Registrar..........-35-
SECTION 1213. Trust Estate May be Vested in Separate or Co-Trustee...........................-35-
SECTION 1213. Trustee Not Responsible for Insurance, Taxes or Execution of Indenture.........-35-
ARTICLE XIII SUPPLEMENTAL INDENTURES
SECTION 1301. Supplemental Indentures Not Requiring Consent of Bondholders...................-37-
SECTION 1302. Supplemental Indentures Requiring Consent of Bondholders.......................-37-
ARTICLE XIV AMENDMENT TO LEASE AGREEMENT OR GUARANTY AGREEMENT
SECTION 1401. Amendments, etc., to Lease Agreement Not Requiring Consent of Bondholders......-39-
SECTION 1402. Amendments of Guaranty Agreement...............................................-39-
SECTION 1403. Amendment, etc., to Lease Agreement Requiring Consent of Bondholders...........-39-
ARTICLE XV MISCELLANEOUS
SECTION 1501. Consents, etc., of Bondholders.................................................-40-
SECTION 1502. Limitation of Rights...........................................................-40-
SECTION 1503. Severability...................................................................-40-
SECTION 1504. Notices........................................................................-40-
SECTION 1505. Trustee as Paying Agent and Registrar..........................................-41-
SECTION 1506. Payments Due on Sundays and Holidays...........................................-41-
SECTION 1507. Successors and Assigns.........................................................-41-
SECTION 1508. Counterparts...................................................................-41-
SECTION 1509. Louisiana Substantive Law Governs..............................................-41-
EXHIBIT A Form of Bonds
EXHIBIT B Leased Facilities
EXHIBIT C Costs of Issuance
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Trust Indenture
This Trust Indenture dated as of June 1, 2003 (together with any amendments
hereto, the "Indenture"), is between The Industrial Development Board of the
Parish of St. Xxxx, Inc., a public corporation and instrumentality of the Parish
of St. Xxxx, State of Louisiana (the "Issuer"), and The Bank of New York Trust
Company of Florida, N. A., a national banking association organized and existing
under and by virtue of the laws of the United States of America and duly
authorized to accept and execute trusts, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer 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; and
WHEREAS, after careful study and investigation the Issuer, in furtherance
of the purpose for which it was created and pursuant to a resolution duly
adopted, has entered into a lease agreement (the "Lease Agreement"), dated as of
even date herewith, with Xxxxxx Aluminum, L.L.C. (the "Lessee"), a limited
liability company duly organized and existing under the laws of the State of
Louisiana, pursuant to which the Lessee has agreed to pay the Issuer specified
rental payments and other payments; and
WHEREAS, the Issuer has agreed at the request of the Lessee 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"); and
WHEREAS, Xxxxxx Industries, Inc., a Delaware corporation, Xxxxxx Shipyard,
L.L.C., a Louisiana limited liability company, Orange Shipbuilding Company,
Inc., a Texas corporation, and the Lessee (collectively, the "Guarantors") have
executed and delivered a Guaranty Agreement dated as of the date hereof (such
Guaranty Agreement, together with any amendment or supplements thereto, being
herein called the "Guaranty Agreement"), pursuant to which the Guarantors, as an
inducement to the Issuer to issue the Bonds and to the purchasers of any such
Bonds to purchase the same, unconditionally guarantee the full and prompt
payment of the principal of, premium, if any, and interest on, the Bonds when
and as the same shall become due; and
WHEREAS, the execution and delivery of the Lease Agreement, the Indenture
and the issuance of the Bonds have been in all respects duly and validly
authorized by duly adopted and approved resolutions of the Board of Directors of
the Issuer, the governing authority of the Issuer; and
WHEREAS, all other things necessary to make the Bonds, when issued,
executed and delivered by the Issuer and authenticated by the Trustee pursuant
to this Indenture, the valid, legal and binding obligations of the Issuer, and
to constitute this Indenture a valid pledge of certain income and revenue
derived from the Leased Facilities (hereinafter defined) as security for the
payment of the principal of, premium, if any, and interest on, the Bonds
authenticated and delivered under this Indenture, have been performed, and the
creation, execution and delivery of this Indenture, and the creation, execution
and issuance of the Bonds, subject to the terms hereof, have in all respects
been duly authorized; and
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WHEREAS, all of the Bonds are to be issued in fully registered form and
said Bonds and the Trustee's certificate of authentication to be endorsed
thereon are all to be in substantially the form attached hereto as Exhibit A
with necessary and appropriate variations, omissions and insertions as permitted
or required by this Indenture.
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute a
valid pledge of the rental payments and revenues herein made to the payment of
the principal of, premium, if any, and interest on the Bonds, have been done and
performed, and the creation, execution and delivery of this Indenture, and the
creation, execution and issuance of the Bonds, subject to the terms hereof, have
in all respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS TRUST INDENTURE
WITNESSETH:
That the Issuer in consideration of the premises and the acceptance by the
Trustee of the trusts hereby created and of the purchase and acceptance of the
Bonds issued and secured hereunder by the holders and owners thereof, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, in order to secure the payment of the principal of, premium, if
any, and interest on said Bonds according to their tenor and effect and the
performance and observance by the Issuer of all the covenants expressed or
implied herein and in the Bonds, does hereby specially effect, hypothecate,
pledge, pawn, transfer and assign unto the Trustee and unto its successors in
trust, and to its assigns forever, all of the following properties of the Issuer
(the "Trust Estate"), which the Issuer now owns or may hereafter acquire for the
objects and purposes of this Indenture, subject to Permitted Encumbrances
(hereinafter defined):
(a) The rights of the Issuer under and pursuant to the Lease Agreement
(other than the right to indemnification and the right to receive
reimbursement of certain expenses under the Lease Agreement, including,
without limitation, Sections 5.9, 7.5 and 9.4 thereof), all rental payments
(less and except rentals payable under Section 4.3(c) of the Lease
Agreement), revenues and other amounts receivable by the Issuer from the
Leased Facilities including, without limitation, all revenues to be
received by the Issuer from the leasing or sale of the Leased Facilities
and in particular the rental payments to be received under and pursuant to
and subject to the provisions of the Lease Agreement, and pursuant to the
terms of which rent is to be paid directly to the Trustee at the principal
office of the Trustee for the account of the Issuer and deposited in the
Bond Fund (hereinafter defined); and
(b) All monies and securities from time to time held by the Trustee
under the terms of this Indenture, except for monies deposited with or paid
to the Trustee for the redemption of Bonds, notice of the redemption of
which has been duly given, and except as specifically provided in this
Indenture; and
(c) All the rights and interest of the Issuer in and to the Bond Fund
and the Construction Fund (as hereinafter defined), and all moneys and
investments therein, but subject to the provisions of this Trust Indenture
pertaining thereto, including those pertaining to the making of
disbursements therefrom.
TO HAVE AND TO HOLD all of the same hereby conveyed and assigned, or agreed
or intended so to be, to the Trustee and its successors in said trust and to it
and its assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
equal and proportionate benefit, security and protection of all holders and
owners of the Bonds issued and secured hereunder, without privilege, priority or
distinction of any of such Bonds over any other of such Bonds.
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PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of the Bonds issued and
secured hereunder and the interest due or to become due thereon, at the times
and in the manner mentioned in said Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made into the Bond Fund as
required under Article VI hereof or shall provide, as permitted under Article X
hereof, for the payment thereof by depositing with the Trustee the amount due or
to become due thereon, and shall well and truly keep, perform and observe all
the covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
all sums of moneys due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture, and the rights
hereby granted shall cease, terminate and be void; otherwise this Indenture to
be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered
and all said revenues and receipts hereby pledged are to be dealt with and
disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as hereinafter expressed, and
the Issuer has agreed and covenanted, and does hereby agree and covenant, with
the Trustee and with the respective holders and owners, from time to time, of
the said Bonds, or any part thereof, as follows, that is to say:
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ARTICLE I
DEFINITIONS
SECTION 101. Definitions of Terms. In addition to the words and terms
elsewhere defined in this Indenture, the following words and terms as used in
this Indenture shall have the following meanings unless the context or use
indicates another or different meaning or intent. Terms not defined herein shall
have the meanings set forth in the Lease Agreement:
"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.
"Base Rate" means that rate of interest as recorded by JPMorgan Chase Bank,
N.A. from time to time as its prime lending rate with the rate of interest to
change when and as said prime lending rate changes. Each change in any interest
rate provided for herein based upon the Base Rate resulting from a change in
JPMorgan Chase Prime Rate shall take effect at the time of such change in
JPMorgan Chase Prime Rate.
"Bond Counsel" means a law firm having a national reputation in the field
of municipal law whose opinions are generally accepted by purchasers of
municipal bonds, appointed by the Issuer.
"Bond Fund" means the Bond Fund created by Section 601 of this Indenture.
"Bond Register" shall have the meaning set forth in Section 208 hereof.
"Bondholder" or "holder" or any similar term means any Person who shall be
the registered owner of any Bond or Bonds.
"Bonds" means the Taxable Revenue Bonds (Xxxxxx Aluminum, L.L.C. Project)
Series 2003 of the Issuer issued hereunder.
"Business Day" means a day other than a Saturday, Sunday or legal holiday
for commercial banks in New Orleans, Louisiana, Xxx Xxxx, Xxx Xxxx, xxx Xxxxxx,
Xxxxxx Xxxxxxx.
"Construction Fund" means the fund by that name created and established in
Section 303 of this Indenture.
"Corporate Trust Division" means the corporate trust offices of the Trustee
located in Jacksonville, Florida.
"Costs" shall have the meaning set forth in the Lease Agreement.
"Default" means those defaults specified in and defined as such by Section
1101 hereof.
"Eligible Investments" means to the extent authorized by State law for the
investment of moneys of the Issuer:
(i) Government Obligations;
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(ii) Federal Home Loan Mortgage Corporation (FHLMC) and Farm Credit Banks
(Federal Land Banks, Federal Intermediate Credit Banks and Banks for
Cooperatives) participation certificates and senior debt obligations which bear
interest at a fixed rate and are fully amortizing;
(iii) Federal National Mortgage Association's (FNMA) mortgage backed
securities and senior debt obligations which bear interest at a fixed rate and
are fully amortizing;
(iv) Student Loan Marketing Association (Xxxxxx Mae) letter of credit
backed issues and senior debt obligations;
(v) Federal funds, certificates of deposits, time deposits and bankers'
acceptances (having original maturities of not more than 365 days) of any bank
the unsecured, uninsured and unguaranteed debt obligations of which (or, in the
case of a bank subsidiary in a bank holding company, debt obligations of the
bank holding company) have been rated "AA" or "A-1" or its equivalent by either
Rating Service;
(vi) commercial paper (having original maturities of not more than 270
days) rated "A-1" or its equivalent by either Rating Service;
(vii) obligations rated "AA" or "A-1" or its equivalent by either Rating
Service, or unrated general obligations of any Person which has outstanding
other unsecured, uninsured and unguaranteed obligations which are so rated by
either Rating Service;
(viii) repurchase agreements with any institution the unsecured, uninsured
and unguaranteed debt obligations of which (or, in the case of a bank subsidiary
in a bank holding company, debt obligations of the bank holding company) are
rated "AA" or its equivalent by either Rating Service or which are otherwise
acceptable to the Bondholder;
(ix) tax-exempt obligations of any state of the United States of America or
any political subdivision or other instrumentality of any such state and such
obligations are rated in either of the two highest rating categories (i.e., "AA"
or higher) of either Rating Service;
(x) tax-exempt money market funds which are "qualified regulated investment
companies" within the meaning of IRS Notice 87-22, dated October 25, 1987, and
which meet the other requirements of IRS Notice 87-22 and any subsequent
regulations necessary to exempt investments in such funds from the definition of
"investment property" under Section 148 of the Internal Revenue Code of 1986, as
amended (the "Code"), whose assets are solely invested in obligations rated in
either of the two highest rating categories by either Rating Service;
(xi) interest-bearing savings deposit accounts or money market accounts at
Whitney National Bank or other national or state bank insured by the Federal
Deposit Insurance Corporation; and
(xii) any other obligations (including, without limit, investment
agreements) approved in writing by the Bondholder.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all expenses incurred by the Trustee under this Indenture other
than Ordinary Services and Ordinary Expenses, including reasonable attorneys'
fees and expenses.
"Government Obligations" shall mean direct general obligations of, or
obligations the prompt payment of the principal of and the interest on which are
fully and unconditionally guaranteed by, the United States of America. In
addition, investments having a maturity of seven days or less in a money market
or other
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fund, investments of which fund are exclusively in Government Obligations, shall
be considered investments in Government Obligations.
"Guarantors" means collectively Xxxxxx Industries, Inc., a Delaware
corporation, Xxxxxx Shipyard, L.L.C., a Louisiana limited liability company,
Orange Shipbuilding Company, Inc., a Texas corporation, and the Lessee.
"Guaranty Agreement" means the Guaranty Agreement executed by and between
the Guarantors and the Trustee of even date herewith and more particularly
described in the preambles hereof.
"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 Issuer or the Lessee.
"Indenture" means these presents and other indentures supplemental hereto
with the Trustee in pursuance hereof.
"Interest Period" means the interest period applicable to the LIBOR Rate or
Base Rate, which Interest Period shall be a one month, two months, or three
month period for LIBOR Rate and a thirty-day period for Base Rate, as specified
in the Notice of Conversion in respect of the making or converting of the
interest rate on the Bonds to accrue at the LIBOR Rate or the Base Rate.
"Issuer" or "Lessor" 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, and its successors and assigns.
"Land" means the land described in Exhibit B attached hereto.
"Lease Agreement" means the Lease Agreement executed by and between the
Issuer and the Lessee of even date herewith and more particularly described in
the preambles hereof, as from time to time amended.
"Leased Facilities" means the Land and Project described in Exhibit B
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 leased to the Lessee under the Lease Agreement which is not
otherwise included in the definition of Project, but not including the Lessee's
own machinery and equipment now in existence or installed under the provisions
of Sections 5.1 and 8.6 of the Lease Agreement.
"Lessee" means Xxxxxx Aluminum, L.L.C., a Louisiana limited liability
company, and any surviving, resulting or transferee corporation as provided in
Section 7.3 of the Lease Agreement.
"Libor Rate" means an interest rate per annum (rounded upward to the
nearest hundredth of a percent (1/100 of 1%)) which is the offered quotation to
Bondholder of the London interbank offered rate for U.S. Dollar deposits of
amounts in immediately available funds in the London market for one month, two
months or three months, as recorded by the Bloomberg, L.P. or such other service
used by Bondholder as an information vendor for the purpose of displaying
British Bankers' Association interest settlement rates for U.S. Dollar Deposits,
as determined by Bondholderas of the opening of business of Bondholder or as
soon thereafter as practicable, as of the applicable Interest Period, plus the
applicable margin of 200 basis points (2% percent); provided however, the Libor
Rate shall never be lower than the Base Rate less 100 basis points (1% percent).
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The Libor Rate shall be determined by Bondholder on the first Business Day of
each Interest Period with the change in the Libor Rate to be effective as of
such Business Day.
"Notice of Conversion" means the notice of conversion given by the
Authorized Lessee Representative of its election to convert the interest rate on
the Bonds and the applicable Interest Period pursuant to Section 202 hereof.
"Opinion of Counsel" means an opinion of counsel who may be counsel to the
Issuer or to the Lessee, including an employee of the Lessee.
"Ordinary Services" and "Ordinary Expenses" mean those services normally
rendered and those expenses normally incurred by the Trustee in carrying out and
performing its normal duties under this Indenture, including reasonable
attorneys' fees and expenses.
"Outstanding", "outstanding" or "Bonds Outstanding" means all Bonds which
have been authenticated and delivered by the Trustee under this Indenture,
except:
(a) Bonds canceled by the Trustee because of payment or redemption
prior to maturity;
(b) Bonds for the payment or redemption of which moneys or securities
shall have been theretofore deposited with the Trustee (whether upon or
prior to the maturity or redemption date of any such Bond); provided that
if such Bonds are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given or arrangements satisfactory to the
Trustee shall have been made therefor, or waiver of such notice
satisfactory in form to the Trustee, shall have been filed with the
Trustee; and
(c) Bonds in lieu of which others have been authenticated under
Section 207 hereof.
In determining whether the holders of a requisite aggregate principal
amount of Bonds outstanding have concurred in any request, demand,
authorization, direction, notice, consent or waiver under the provisions hereof,
Bonds which are purchased for purposes of cancellation by the Lessee shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination.
"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 Lease Agreement and this Indenture, (iv)
mechanic's, materialman's, warehouseman's, carrier's and other similar liens and
liens referred to in Section 8.6 of the Lease Agreement or permitted under
Section 5.1 thereof, (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 Counsel, materially
impair the property affected thereby for the purpose for which it was acquired
or is held by the Issuer 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.
"Person" means natural persons, firms, associations, corporations and
public bodies.
"Project" shall have the meaning set forth in the preamble hereto and as
more particularly described in Exhibit B hereto.
"Purchaser" means the initial purchaser of the Bonds, Whitney National
Bank.
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"Rating Service" means Xxxxx'x Investors Service and Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc, or any other
rating agency approved by the Bondholder.
"Registered Owner" means the person or persons in whose name or names the
particular registered Bonds shall be registered on the books of the Issuer kept
for that purpose in accordance with the terms of this Indenture.
"State" means the State of Louisiana.
"Trust Estate" or "property herein conveyed" means the property specified
in the Granting Clauses hereof.
"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 of America, the party of the second part hereto, and any
successor trustee pursuant to Sections 1205 or 1208 hereof at the time serving
as successor trustee hereunder.
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ARTICLE II
THE BONDS
SECTION 201. Authorized Amount of Bonds. No Bonds may be issued under the
provisions of this Indenture except in accordance with this Article. The total
principal amount of Bonds that may be issued hereunder is hereby expressly
limited to Four Million Dollars ($4,000,000).
SECTION 202. Issuance of Bonds. The Bonds shall be designated "Taxable
Revenue Bonds (Xxxxxx Aluminum, L.L.C. Project) Series 2003", shall be dated the
date of initial issuance and delivery thereof, and shall be issued as a single
fully registered Bond, numbered from R-1 upwards. Except as prepaid or redeemed,
the Bonds shall mature in 179 monthly principal installments of $22,222.22
commencing September 1, 2003 through and including July 1, 2018 and a final
principal installment of $22,222.62 due and payable on August 1, 2018.
The Bonds shall bear interest from the later of the date thereof or the
most recent interest payment date to which interest has been paid or duly
provided for in full as follows:
(a) The Lessee has previously determined that the Bonds shall initially
accrue interest at the three (3) month Libor Rate. On the last Business Day
prior to the expiration of the then applicable Interest Period for the Bonds,
Lessee will determine the Interest Period and whether the Bonds will accrue
interest at Libor Rate or Base Rate. Upon the expiration of such Interest Period
and any Interest Period thereafter, the Lessee shall have the option to convert
the interest rate accruing on all (but not less than all) of the outstanding
principal balance of the Bonds into a Libor Rate or Base Rate; provided that (i)
Bonds cannot be converted when any Default has occurred and is continuing and in
such event the Bonds shall accrue interest at the Base Rate, and (ii) no
conversions of the Bonds are allowed until the expiration of the Interest Period
applicable to the existing rate of interest has expired.
(b) Each conversion shall be enacted by the Authorized Lessee
Representative by giving to the Bondholder at its main office prior to 11:00 a.
m. (New Orleans time) on or before the last Business Day of the applicable
Interest Period written or telephone Notice of Conversion specifying if the
Bonds are to be converted into accruing interest at Libor Rate or Base Rate and
the Interest Period to be applicable thereto. In the absence of any specific
rate election by the Lessee or if Lessee fails to provide such notice to the
Bondholder in a timely manner, the Bonds shall accrue interest at the Base Rate.
(c) Interest on the outstanding principal owed on the Bonds shall be
computed on the basis of the actual number of days elapsed over a year composed
of 360 days.
(d) Additionally, with respect to each Interest Period, in the event that
Bondholder shall have determined in good faith (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto):
(i) on any Interest Period or date of conversion that, by reason of
any changes arising after the date of this Indenture affecting the London
interbank market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Libor Rate; or
(ii) at any time, that Bondholder shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Libor Rate because of any change since the date of this Indenture in
any applicable law or governmental rule, regulation, order, guideline or
request or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A)
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a change in the basis of taxation of payment to the Bondholder of the
principal or interest on such Libor Rate (except for changes in the rate of
tax on, or determined by reference to, the net income or profits of the
Bondholder) or (B) a change in official reserve requirements; or
(iii) at any time, that the making or continuance of any Libor Rate
has been made (x) unlawful by any law or governmental rule, regulation or
order, (y) impossible by compliance by the Bondholder in good faith with
any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the date of this
Indenture which materially and adversely affects the London interbank
market;
then, and in any such event, the Bondholder shall promptly give notice (by
telephone confirmed in writing) to the Lessee. Thereafter (x) in the case of
clause (i) above, the Libor Rate shall no longer be available until such time as
the Bondholder notifies the Lessee that the circumstances giving rise to such
notice no longer exist, the Bonds shall then accrue interest at the Base Rate,
and any Notice of Conversion given by the Lessee with respect to the Libor Rate
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Lessee, (y) in the case of clause (ii) above, the Lessee
agrees to pay to the Bondholder, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as agreed to by the Bondholder and the
Lessee) as shall be required to compensate the Bondholder for such increased
costs or reductions in amounts received or receivable hereunder (a written
notice as to the additional amounts owed to the Bondholder, showing the basis
for the calculation thereof, submitted to the Lessee by the Bondholder in good
faith shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Bonds shall
accrue interest at the Base Rate. The Bondholder agrees that if it gives notice
to the Lessee of any of the events described in clause (i) or (iii) above, it
shall promptly notify the Lessee if such event ceases to exist. If any such
event described in clause (iii) above ceases to exist as to the Bondholder, the
Bondholder's obligations to convert the interest accruing on the Bonds into
Libor Rate on the terms and conditions contained herein shall be reinstated.
The Bonds are not subject to redemption prior to maturity except pursuant
to the redemption provisions of Article IV hereof.
The principal of, premium, if any, and interest on the Bonds shall be paid
in lawful money of the United States of America, and the final payment of
principal of and interest on the Bonds shall be payable upon presentation and
surrender of such Bonds as they become due at the office of the Corporate Trust
Division of the Trustee, or its successor in trust provided that principal and
interest on each fully registered Bond shall be paid by check or draft mailed to
the registered owner thereof whose name is registered at the close of business
on the fifteenth calendar day preceding any such payment date at his or her
address as it appears on the Bond Register.
Notwithstanding any provision of this Indenture or the Bonds to the
contrary, if a Bondholder owning all Outstanding Bonds shall file with the
Trustee an instrument requesting the amount payable by the Trustee as interest
and principal hereunder to such Bondholder or a nominee therefor be paid either
(a) by crediting in immediately available funds the amount to be distributed to
such Bondholder to any account maintained by such Bondholder with the Trustee,
or (b) by transferring by wire transfer in immediately available funds the
amount to be distributed to such Bondholder to a designated account maintained
by such Bondholder at any other bank in the United States, the Trustee shall pay
all amounts payable by the Trustee as interest and principal hereunder to such
Bondholder or nominee therefor in accordance with the provisions of any such
agreement and without presentment of such Bond to the Trustee, except for the
final maturity. Furthermore, notwithstanding any provision of this Indenture or
the Bonds to the contrary, if a Bondholder owning all Outstanding Bonds shall
file with the Trustee and the Company an instrument requesting all payments on
the Bonds to be paid directly to the Bondholder, such payments shall be paid
directly to the Bondholder without
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any requirement for presentation and surrender as set forth in the preceding
paragraph and the Bondholder shall keep records of all payments on the Bonds on
the schedules attached to the Bonds. All payments so made shall be valid and
effective to satisfy and discharge the liability upon any Bonds, but only to the
extent of the sums actually paid and collected. Such payment shall be valid and
effective irrespective of whether any such notation has been made thereon and
irrespective of any error or omission in such notation.
SECTION 203. Execution; Limited Obligation. The Bonds shall be executed on
behalf of the Issuer with the manual or facsimile signature of its President or
Vice President and shall have affixed, impressed, or otherwise reproduced
thereon the seal of the Issuer and attested with the manual or facsimile
signature of its Secretary-Treasurer. The Bonds, together with interest thereon,
shall be limited obligations of the Issuer payable from the Trust Estate,
including the Bond Fund, and shall be a valid claim of the respective holders
thereof only against such Trust Estate and fund and the revenues and receipts
derived from the lease or sale of the Leased Facilities and pledged to such
fund, which revenues and receipts are hereby pledged for the equal and ratable
payment of the Bonds and shall be used for no other purpose than to pay the
principal of, premium, if any, and interest on the Bonds, except as may be
otherwise expressly authorized in this Indenture or in the Lease Agreement. The
Bonds are also secured by a Guaranty Agreement. The Bonds do not now and shall
never constitute an indebtedness or a pledge of the general credit of the
Issuer, the Parish of St. Xxxx, the State, or any political subdivision of the
State, within the meaning of any constitutional provision or statutory
limitation of indebtedness. In case any officer whose signature or facsimile of
whose signature shall appear on the Bonds shall cease to be such officer before
the delivery of such Bonds, such signature or such facsimile shall nevertheless
be valid and sufficient for all purposes, the same as if he had remained in
office until delivery.
SECTION 204. Authentication. Only such Bonds as shall have endorsed thereon
a certificate of authentication substantially in the form of Bond set forth in
Exhibit A duly executed by the Trustee shall be entitled to any right or benefit
under this Indenture. No Bond shall be valid or obligatory for any purpose
unless and until such certificate of authentication shall have been duly
executed by the Trustee, and such executed certificate of the Trustee upon any
such Bond shall be conclusive evidence that such Bond has been authenticated and
delivered under this Indenture. The Trustee's certificate of authentication on
any Bond shall be deemed to have been executed by it if signed by an authorized
officer of the Trustee, but it shall not be necessary that the same officer sign
the certificate of authentication on all of the Bonds issued hereunder.
SECTION 205. Form of Bonds. The Bonds issued under this Indenture shall be
substantially in the form set forth in Exhibit A with such appropriate
variations, omissions and insertions as are permitted or required by this
Indenture.
SECTION 206. Delivery of Bonds. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver to the Trustee and the Trustee
shall authenticate the Bonds and deliver them to the purchasers as may be
directed by the Issuer in writing as hereinafter in this Section 206 provided.
Prior to the delivery by the Trustee of any of the Bonds there shall be
filed with the Trustee:
1. A copy, duly certified by the Secretary-Treasurer of the Issuer, of
the resolution or resolutions adopted by the Board of Directors of the
Issuer, authorizing the execution and delivery of the Lease Agreement and
this Indenture and the issuance, execution and delivery of the Bonds.
2. An original executed counterpart of the Lease Agreement and this
Indenture.
3. An original executed counterpart of the Guaranty Agreement.
4. A request and authorization to the Trustee on behalf of the Issuer
and signed by its President or Vice President and Secretary-Treasurer, to
authenticate and deliver the aggregate
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principal amount of the Bonds to be issued to the purchasers therein
identified upon payment to the Trustee, but for the account of the Issuer,
of a sum specified in such request and authorization. Such proceeds shall
be paid over to the Trustee and deposited as hereinafter provided under
Article VII.
5. A certified copy of the resolution of the Lessee authorizing the
execution of the Lease Agreement and Guaranty Agreement.
6. An opinion of Bond Counsel.
7. Such other items, if any, required by the Purchaser under its
commitment letter.
Simultaneously with the delivery of the Bonds, the Trustee shall apply the
proceeds of the Bonds (including accrued interest, if any) in accordance with
Article VII hereof.
SECTION 207. Mutilated, Lost, Stolen or Destroyed Bonds. In the event any
Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the
Trustee may authenticate a new Bond of like date, maturity and denomination as
the Bond mutilated, lost, stolen or destroyed; provided that, in the case of any
mutilated Bonds, such mutilated Bond shall first be surrendered to Trustee, and
in the case of any lost, stolen or destroyed Bond, there shall be first
furnished to the Issuer and the Trustee evidence of such loss, theft or
destruction satisfactory to the Issuer and the Trustee, together with indemnity
satisfactory to them. In the event any such Bond shall have matured, instead of
issuing a substitute Bond the Issuer may pay the same without surrender thereof.
The Issuer and the Trustee may charge the holder or owner of such Bond with
their reasonable fees and expenses in this connection. Each new Bond shall in
all respects be identical with the pertinent lost, mutilated, destroyed or
stolen Bond, except that it shall bear on its face the following clause:
"This bond is issued to replace a lost, cancelled or destroyed Bond under
the authority of R.S. 39:971 through 39:974."
SECTION 208. Registration of Bonds; Persons Treated as Owners. So long as
any of the Bonds shall remain outstanding, the Issuer shall maintain and keep,
at the office of the Corporate Trust Division of the Trustee, books for the
registration and transfer of Bonds (the "Bond Register"), and the Issuer shall
register or cause to be registered therein, under such reasonable regulations as
it or the Trustee may prescribe, any Bond. So long as any of the Bonds remain
outstanding, the Issuer shall make all necessary provisions to permit the
exchange of Bonds at such office of the Trustee.
All Bonds shall be transferable only on the Bond Register upon surrender of
such Bond at the office of the Corporate Trust Division of the Trustee, with a
written instrument of transfer satisfactory to the Trustee duly executed by the
registered owner or his attorney duly authorized in writing.
Bonds, upon surrender thereof at the office of the Corporate Trust Division
of the Trustee with a written instrument of transfer satisfactory to the Trustee
duly executed by the Registered Owner or his attorney duly authorized in
writing, may at the option of the Registered Owner thereof be exchanged for an
equal aggregate principal amount of Bonds of the same maturity and interest rate
in any of the authorized denominations and registered in such name or names as
may be requested.
Registrations and transfers of Bonds shall be without charge to the holder
of the Bonds but, for every registration or transfer of Bonds, the Issuer or the
Trustee may make a charge sufficient to reimburse it for any tax, fee or other
governmental charge required to be paid with respect to such registration or
transfer, which sum or sums shall be paid by the person requesting such
registration or transfer as a condition precedent to the exercise of the
privilege of making such registration or transfer.
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Each Bond delivered pursuant to any provision of this Indenture in exchange
or substitution for, or upon the transfer of the whole or any part of one or
more other Bonds, shall carry all of the rights to interest accrued and unpaid
and to accrue which were carried by the whole or such part, as the case may be,
of such one or more other Bonds, and notwithstanding anything contained in this
Indenture, such Bonds shall be so dated or bear such notation that neither gain
or loss in interest shall result from any such exchange, substitution or
transfer.
Every transfer of Bonds under the foregoing provisions shall be effected in
such manner as may be prescribed by the Issuer or pursuant to its written
authorization, with the approval of the Trustee. Neither the Issuer nor the
Trustee shall be required (a) to register or transfer Bonds for a period of ten
days next preceding an interest payment date on the Bonds or next preceding the
date of first publication or mailing of notice of redemption, whichever is
earlier, or (b) to register or transfer any Bonds called for redemption.
Anything in this Indenture to the contrary notwithstanding, there shall not
be effected, and the Trustee, acting as bond registrar, shall not permit the
effecting of, any transfer of any Bond pursuant to the provisions of this
Section, unless there is delivered to the Trustee an opinion of counsel
satisfactory to the Trustee and the Lessee to the effect that such transfer will
not violate applicable securities laws.
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ARTICLE III
ISSUE OF BONDS; CONSTRUCTION FUND
SECTION 301. Issue of Bonds. The Issuer may issue the Bonds following the
execution of this Indenture; and the Trustee shall, at the Issuer's written
request, authenticate such Bonds and deliver them as specified in the request.
SECTION 302. Issue of Additional Bonds. No Additional Bonds shall be issued
hereunder.
SECTION 303. Creation of Construction Fund. There is hereby created and
ordered to be established with the Trustee, a special account of the Issuer to
be designated "The Industrial Development Board of the Parish of St. Xxxx,
Louisiana, Inc. Taxable Revenue Bond Construction Fund - Xxxxxx Aluminum, L.L.C.
Project" (the "Construction Fund").
SECTION 304. Payments into Construction Fund. The proceeds from the
issuance and sale of the Bonds, other than accrued interest, if any, on such
Bonds to the date of delivery thereof paid by the Purchaser shall be deposited
by the Trustee into the Construction Fund as provided in Article VII hereof. All
income or other gain or any loss from the investment of moneys in the
Construction Fund shall be credited to the Construction Fund.
SECTION 305. Disbursements from Construction Fund. Moneys in the
Construction Fund shall be expended in accordance with Section 3.3 of the Lease
Agreement to or on behalf of the Lessee, acting as agent for and on behalf of
the Issuer, the owner of the Leased Facilities, pursuant to requisitions signed
by an Authorized Lessee Representative, approved in writing by the Purchaser and
delivered to the Trustee stating with respect to each payment to be made:
(a) The requisition number;
(b) The name and address of the person, firm or corporation to whom
payment is due or has been made, which may include the Lessee;
(c) The amount to be or which has been paid; and
(d) That each obligation mentioned therein has been properly incurred,
is a proper charge against the Construction Fund in accordance with the
provisions of the Lease Agreement and has not been the basis of any
previous requisition from the Construction Fund or from the proceeds
(including investment income) of any other obligations issued by or on
behalf of any state or political subdivision, including authorities,
agencies, departments or other similar issuers.
The Trustee is hereby authorized and directed to make the disbursement
pursuant to each such requisition and to issue its checks therefor or by wire
transfer pursuant to instructions given to the Trustee by the Authorized Lessee
Representative. In making any such disbursement, the Trustee may rely on any
such requisition. The Trustee shall keep and maintain adequate records
pertaining to the Construction Fund and all disbursements therefrom and shall
provide monthly statements of transactions and investments pertaining to the
Construction Fund to the Lessee so long as any funds remain in the Construction
Fund.
Notwithstanding the foregoing, the fees and expenses related to the
issuance and delivery of the Bonds listed on Exhibit C hereto shall be paid from
the Construction Fund to the persons listed thereon by the Trustee upon receipt
of statements or invoices for such amounts by the persons listed thereon and
without the necessity of the submission of a requisition.
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SECTION 306. Balance in Construction Fund. Any balance remaining in the
Construction Fund (except for amounts retained at the Lessee's written direction
for Costs of Construction not then due and payable), shall, at the written
direction of the Lessee, be deposited into a segregated account of the Issuer in
the Bond Fund to be designated "The Industrial Development Board of the Parish
of St. Xxxx, Louisiana, Inc. Taxable Revenue Bond Lessee Designation Account -
Xxxxxx Aluminum, L.L.C. Project" (the "Lessee Designation Account") and used by
the Trustee for (a) redemption of principal of the Bonds in inverse order of
installments on or prior to the earliest redemption date permitted by this
Indenture without a premium or penalty in accordance with the provisions of this
Indenture; or (b) the payment of a portion of the principal due on the Bonds in
years before the Bonds are subject to redemption without premium or penalty; or
(c) any other purpose specified in writing by the Lessee, provided that the
Trustee is furnished with an opinion of Bond Counsel, satisfactory to the
Trustee, to the effect that such use is lawful under the Act.
SECTION 307. Optional Redemption of Bonds. In the event that Bonds are to
be redeemed pursuant to the provisions hereof, the Trustee shall, at the written
direction of the Lessee, with the written consent of the Purchaser, to the
extent moneys remain on deposit in the Construction Fund, if any, withdraw from
the Construction Fund and transfer to the Bond Fund amounts in the aggregate not
exceeding the aggregate principal amount of, and accrued interest on, the Bonds
to be redeemed, with advice to the Issuer and the Lessee of such action, such
withdrawals and deposits to be made on the date specified in such direction.
SECTION 308. Reserved.
SECTION 309. Acceleration of Bonds. In the event that the principal of the
Bonds shall have become due and payable pursuant to Section 1102 hereof, the
Trustee may, and at the written direction of the holders of at least 25% in
aggregate principal amount of Bonds then outstanding hereunder shall, deposit
into the Bond Fund all amounts remaining in the Construction Fund, with written
advice to the Issuer and the Lessee of such action.
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ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY;
GENERAL REDEMPTION PROVISIONS
SECTION 401. Redemption Dates and Prices. The Bonds shall be subject to
redemption prior to maturity, in whole or in part, at the option of the Issuer,
as directed by the Lessee in writing, on any date, at a redemption price equal
to the principal amount thereof plus accrued interest to the redemption date.
SECTION 402. Notice of Redemption. Notice of the call for any such
redemption pursuant to the first paragraph of Section 401 hereof identifying the
Bonds to be redeemed shall be given by mailing a copy of the redemption notice
by first class mail at least thirty (30) days to the Registered Owners of any
Bonds which are to be redeemed at their last addresses, if any, appearing on the
registration books.
Prior to the date fixed for redemption, moneys shall be placed with the
Trustee to pay the Bonds called for redemption and accrued interest thereon to
the redemption date and the premium, if any. Upon the happening of the above
conditions, the Bonds thus called for redemption shall be redeemed, shall cease
to bear interest from and after the redemption date, shall no longer be
protected by this Indenture and shall not be deemed to be Outstanding under the
provisions of this Indenture.
SECTION 403. Cancellation. Unless otherwise provided in Section 401 hereof,
all Bonds which have been redeemed pursuant to Section 401 hereof shall be
cancelled and destroyed by the Trustee and shall not be reissued and
counterparts of the certificate of destruction evidencing such destruction shall
be furnished by the Trustee to the Issuer and the Lessee.
SECTION 404. Partial Redemption of Bonds. In the event of redemption of the
Bonds in part only, the holder thereof shall surrender the Bonds to the Trustee
and the Trustee shall authenticate and the Issuer shall execute and deliver to
the holder a new bond of the same maturity in the denomination of the unredeemed
portion of the Bonds surrendered. Any costs incurred in the printing of said new
Bond shall be paid by the Lessee.
SECTION 405. Partial Prepayment of Bonds. Upon surrender of any Bond for
prepayment in part only, the Issuer shall execute and the Trustee shall
authenticate and deliver to the holder thereof, at the expense of the Lessee, a
new Bond in the denomination of the unredeemed portion of the Bonds surrendered.
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 501. Payment of Principal and Interest. The Issuer covenants that
it will promptly pay the principal of and interest and premium, if any, on every
Bond issued under this Indenture at the place, on the dates and in the manner
provided herein and in said Bonds according to the true intent and meaning
thereof subject, however, to the provisions of Section 203 hereof. The principal
of, premium, if any, and interest in respect of the Bonds are payable solely
from the Trust Estate, including revenues and other amounts derived from the
lease or sale of the Leased Facilities pursuant to the terms of the Lease
Agreement, which revenues and other amounts are hereby specifically pledged to
the payment thereof in the manner and to the extent herein specified and the
Bonds are secured by the Guaranty Agreement, and nothing in the Bonds or in this
Indenture shall ever be considered or construed as pledging any assets or funds
of the Issuer other than those pledged hereby. The Issuer shall not in any event
be liable for the payment of the principal of or interest or premium, if any, on
any of the Bonds or for the performance of any pledge, obligation or agreement
undertaken by the Issuer, except to the extent provided herein.
SECTION 502. Performance of Covenants; Authority. The Issuer covenants that
it will faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture, in each and every Bond
executed, authenticated and delivered hereunder and in all proceedings of the
Issuer pertaining thereto. The Issuer covenants that it is duly authorized under
the Constitution and laws of the State, including particularly and without
limitation the Act, to issue the Bonds authorized hereby and to execute this
Indenture, and to pledge the revenues and properties described herein and
pledged hereby in the manner and to the extent herein set forth; that all action
on its part for the issuance of the Bonds and the execution and delivery of this
Indenture has been duly and effectively taken; and that the Bonds in the hands
of the holders and owners thereof are and will be valid and enforceable
obligations of the Issuer according to the import thereof.
SECTION 503. Payment of Taxes, Charges, Etc. The Lessee has agreed to pay
all lawful taxes, assessments and charges at any time levied or assessed upon or
against the Leased Facilities or any part thereof, which might impair or
prejudice the lien and priority of this Indenture or the Lease Agreement;
provided, however, that nothing contained in the Lease Agreement shall require
the payment of any such taxes, assessments or charges if the same are not
required to be paid under the provisions of Section 5.3 and/or 5.8 of the Lease
Agreement.
SECTION 504. Maintenance and Repair. Pursuant to the provisions of Section
5.1 of the Lease Agreement the Lessee has agreed at its own expense to cause the
Leased Facilities to be maintained.
SECTION 505. Inspection of Leased Facilities Books. The Issuer covenants
and agrees that all books and documents in its possession relating to the Leased
Facilities and the revenues derived from the Leased Facilities shall at all
times be open to inspection by such accountants or other agents as the Trustee
may from time to time designate. The Trustee may but shall have no obligation or
liability with respect to inspection of the books of the Leased Facilities.
SECTION 506. List of Bondholders. The Trustee will keep on file at its
office of the Corporate Trust Division of the Bond Register which shall contain
a list of names and addresses of the owners of all Bonds. The Issuer shall have
no responsibility with regard to the accuracy of said list. At reasonable times
and under reasonable regulations established by the Trustee, said list may be
inspected and copied by the Lessee.
SECTION 507. Rights Under Lease Agreement. The Lease Agreement, a duly
executed counterpart of which has been filed with the Trustee, sets forth the
covenants and obligations of the Issuer and the Lessee,
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including a provision that subsequent to the issuance of the Bonds and prior to
their payment in full or provision for payment thereof in accordance with the
provisions hereof, the Lease Agreement may not be effectively amended, changed,
modified, altered or terminated (other than as provided therein) without the
concurring written consent of the Trustee, given as hereinafter in Article XIV
provided, and reference is hereby made to the Lease Agreement for a detailed
statement of said covenants and obligations of the Lessee thereunder. The Issuer
agrees that the Trustee in its name or in the name of the Issuer may enforce all
rights of the Issuer and all obligations of the Lessee under and pursuant to the
Lease Agreement for and on behalf of the Bondholders, whether or not the Issuer
is in default hereunder.
SECTION 508. Ownership. The Issuer shall continually defend the title to
the Leased Facilities and every part thereof to the Trustee, and its respective
successors and assigns, for the benefit of the holders and owners of the Bonds
against the claims and demands of all persons whomsoever at the expense of the
Lessee. The Issuer covenants that it will do, execute, acknowledge and deliver
or cause to be done, executed, acknowledged and delivered, such indentures
supplemental hereto and such further acts, instruments and transfers as the
Trustee may reasonably require for the better assuring, transferring, pledging,
assigning and confirming unto the Trustee all and similar property herein
described, pledged and assigned hereby and the income and revenue pledged hereby
to the payment of the principal of, premium, if any, and interest on the Bonds.
The Issuer covenants, and agrees that, except as herein and in the Lease
Agreement provided, it will not sell, lease, convey, mortgage, hypothecate,
encumber or otherwise dispose of any part of the Leased Facilities or the income
and revenue derived therefrom or of its rights under the Lease Agreement.
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ARTICLE VI
REVENUES AND FUNDS
SECTION 601. Creation of Bond Fund. There is hereby created by the Issuer
and ordered established with the Trustee a trust fund to be designated "Taxable
Revenue Bond Fund -- Xxxxxx Aluminum, L.L.C. Project" (the "Bond Fund").
Moneys on deposit in the Bond Fund shall be used to pay the principal of
and interest and premium, if any, on the Bonds as the same mature and become due
or upon the redemption thereof prior to maturity except as provided in Sections
602, 609, 1107 and 1202 hereof.
SECTION 602. Payments into the Bond Fund. There shall be deposited in the
Bond Fund the amounts required by Section 701 hereof. Additionally, there shall
be deposited in the Bond Fund, as and when received, (a) all rental payments
specified in Section 4.3(a) of the Lease Agreement; provided, however, that in
the event a Bondholder files an election to be paid directly in accordance with
the provisions of Section 202(d) hereof, said rental payments shall be paid
directly to the Bondholder, and references to deposits into the Bond Fund shall
be of no force and effect; (b) all payments made pursuant to the Guaranty
Agreement; and (c) all other moneys received by the Trustee under and pursuant
to any of the provisions of the Lease Agreement when accompanied by written
directions from the Lessee that such moneys are to be paid into the Bond Fund or
otherwise received on account of the Leased Facilities. The Issuer hereby
covenants and agrees that so long as any of the Bonds issued hereunder are
outstanding it will deposit, or cause to be deposited, in the Bond Fund for its
account sufficient sums from revenues and receipts derived from the Leased
Facilities (whether or not under and pursuant to the Lease Agreement) promptly
to meet and pay the principal of and interest and premium, if any, on the Bonds
as the same become due and payable and to this end the Issuer covenants and
agrees that, so long as any Bonds issued hereunder are outstanding, should there
be a default under the Lease Agreement with the result that the right of
possession of the Leased Facilities under the Lease Agreement is returned to the
Issuer, the Issuer shall fully cooperate with the Trustee and with the
Bondholders to the end of fully protecting the rights and security of the
Bondholders and shall diligently proceed in good faith and use its best efforts
to secure another lessee or a suitable tenant for the Leased Facilities to the
end that at all times sufficient revenues and receipts will be derived from the
Leased Facilities promptly to meet and pay the principal of and interest and
premium, if any, on the Bonds as the same become due and payable, as well as
covering the cost of maintaining and insuring the Leased Facilities as more
particularly provided in the Lease Agreement. Nothing herein shall be construed
as requiring the Issuer to operate the Leased Facilities or to use any funds or
revenues from any source other than funds and revenues derived from the Leased
Facilities.
SECTION 603. Use of Moneys in the Bond Fund. Except as provided in Sections
602, 609, 1107 and 1202 hereof, moneys in the Bond Fund shall be used solely for
the payment of the premium, if any, and the interest on the Bonds and for the
payment or redemption of the principal of the Bonds.
Whenever the amount in the Bond Fund from any source whatsoever is
sufficient to redeem all of the outstanding Bonds and to pay interest to accrue
thereon to such redemption, the Issuer covenants and agrees, upon request of the
Lessee, to take and cause to be taken the necessary steps to redeem all such
Bonds on the next succeeding redemption date for which the required redemption
notice may be given or on such later redemption date as may be specified by the
Lessee.
SECTION 604. Custody of Bond Fund. The Bond Fund shall be in the custody of
the Trustee but in the name of the Issuer, and the Issuer hereby authorizes and
directs the Trustee to withdraw sufficient funds from the Bond Fund to pay the
principal of, and premium, if any, and interest on the Bonds, as the same may
become due and payable, and to make said funds so withdrawn available to the
Trustee for the purpose of
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paying said principal and interest and premium, if any, which authorization and
direction the Trustee hereby accepts.
SECTION 605. Non-presentment of Bonds. In the event any Bonds shall not be
presented for payment when the principal thereof becomes due, either at maturity
or otherwise, or at the date fixed for redemption thereof, if funds sufficient
to pay such Bonds shall be held by the Trustee for the benefit of the owner or
owners thereof, all liability of the Issuer to the owner thereof for the payment
of such Bond shall forthwith cease, determine and be completely discharged, and
thereupon it shall be the duty of the Trustee to hold such fund or funds without
liability for interest thereon, for the benefit of the owner of such Bond, who
shall thereafter be restricted exclusively to such fund or funds, for any claim
of whatever nature on his part under this Indenture or on, or with respect to,
said Bond.
SECTION 606. Trustee's Fees, Charges and Expenses. Pursuant to the
provisions of the Lease Agreement, the Lessee has agreed to pay to the Trustee,
at the commencement of the Lease Term (as defined in the Lease Agreement) and
continuing until the principal of and interest and premium, if any, on the Bonds
shall have been fully paid or provision for the payment thereof shall have been
made in accordance with the provisions of this Indenture: (i) an amount equal to
the annual fee of the Trustee for the Ordinary Services of the Trustee rendered
and its Ordinary Expenses incurred under this Indenture, (ii) the reasonable
fees and charges of the Trustee, as bond registrar and paying agent, and (iii)
the reasonable fees and charges of the Trustee, including reasonable attorney
fees and expenses, for Extraordinary Services and Extraordinary Expenses of the
Trustee under this Indenture, as and when the same become due. 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 of the fees or charges referred to herein.
SECTION 607. Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for account of the Bond Fund under any
provision of this Indenture shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the redemption of Bonds,
notice of the redemption of which has been duly given, shall, while held by the
Trustee, constitute part of the Trust Estate and be subject to the lien hereof.
SECTION 608. Insurance and Condemnation Proceeds. Reference is hereby made
to Articles V and VI of the Lease Agreement for the provisions governing
insurance and condemnation proceeds.
SECTION 609. Repayment to the Lessee from the Bond Fund. Any amounts
remaining in the Bond Fund after payment in full of the principal and interest
and premium, if any, on the Bonds (or provision for the payment thereof as
provided in this Indenture) and all fees, charges and expenses of the Trustee
and all other amounts required to be paid hereunder, shall be paid to the Lessee
upon the expiration or sooner termination of the term of the Lease Agreement as
provided in Section 11.6 of the Lease Agreement.
SECTION 610. Deposits under Guaranty Agreement. Reference is hereby made to
the Guaranty Agreement, wherein it is provided that the Guarantors guarantee the
prompt and full payment of the principal of, premium, if any, and interest on,
the Bonds. The Trustee and the Issuer hereby acknowledge that any amounts paid
under the Guaranty Agreement shall be paid directly to the Trustee and deposited
in the Bond Fund. All amounts received under the Guaranty Agreement shall be
applied solely to the payment of the principal of, premium, if any, and interest
on the Bonds or returned to the Guarantors.
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ARTICLE VII
CUSTODY AND APPLICATION OF PROCEEDS OF BONDS
SECTION 701. Deposits in the Bond Fund. From the proceeds of issuance and
delivery of the Bonds there shall be deposited in the Bond Fund a sum equal to
the accrued interest on the Bonds paid by the purchasers thereof, if any.
SECTION 702. Deposits in the Construction Fund. Except as provided in
Section 701 above, all of the proceeds derived from the issuance and delivery of
the Bonds shall be deposited into the Construction Fund.
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ARTICLE VIII
INVESTMENTS
SECTION 801. Investment of Moneys. Any moneys held by the Trustee in any
fund or account under this Indenture shall be separately invested and reinvested
by the Trustee in Eligible Investments at the written direction of the Lessee.
The Trustee may make any and all investments of funds through its own bond
department, or in the investment department of any Bondholder. The Trustee is
authorized and directed to cause to be sold and reduce to cash a sufficient
amount of Eligible Investments whenever the cash balance is or will be
insufficient to make a requested or required disbursement. The Trustee shall not
be accountable for any depreciation in value of the Eligible Investments or for
any loss resulting from such sale. The Trustee shall have no liability for any
investments made in accordance with this Section 801.
Notwithstanding the foregoing, to the extent any funds or accounts are held
by or transferred to the Bondholder, such funds or accounts shall be invested by
the Bondholder in Eligible Investments at the written direction of the Lessee
and the Trustee will have no responsibility with respect thereto.
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ARTICLE IX
POSSESSION, USE AND PARTIAL RELEASE OF LEASED FACILITIES
SECTION 901. Subordination to Rights of the Lessee. So long as there is no
default by the Lessee under the Lease Agreement, this Indenture and the rights
and privileges hereunder of the Trustee (except the Trustee's right to fees,
charges and expenses hereunder) and the owners of the Bonds are specifically
made subject and subordinate to the rights and privileges of the Lessee set
forth in the Lease Agreement. So long as not otherwise provided in this
Indenture, the Lessee shall be suffered and permitted to possess, use and enjoy
the Leased Facilities and appurtenances so as to carry out its rights and
obligations under the Lease Agreement.
SECTION 902. Release of Leased Facilities. Reference is made to the
provisions of the Lease Agreement, including without limitation Section 5.2
thereof, whereby the Lessee may remove certain portions of the Leased Facilities
upon compliance by the parties with the terms and conditions of the Lease
Agreement.
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ARTICLE X
DISCHARGE OF LIEN
SECTION 1001. Discharge of Lien of the Indenture. If and when the Bonds
secured hereby shall become due and payable in accordance with their terms or
through redemption proceedings as provided in this Indenture, or otherwise, and
the whole amount of the principal, redemption premium (if any) and the interest
so due and payable upon all of the Bonds shall be paid, or provision shall have
been made for the payment of the same, together with all other sums payable
under this Indenture, including Trustee fees for Ordinary Services and Ordinary
Expenses and fees due for Extraordinary Services and Extraordinary Expenses, and
the reasonable fees and expenses of Trustee's counsel, by the Issuer, then and
in that case, this Indenture and the lien created hereby shall be discharged and
satisfied and the Issuer shall be released from the covenants, agreements and
obligations of the Issuer contained in this Indenture, and the Trustee shall
assign and transfer to the Lessee, or upon the written order of the Lessee and
the Issuer, all property (in excess of the amounts required for the foregoing)
then held by the Trustee and shall execute such documents as may be reasonably
required by the Lessee in this regard.
Notwithstanding the satisfaction and discharge of this Indenture, the
Trustee shall continue to be obligated to hold in trust any moneys or
investments then held by the Trustee for the payment of the principal of,
premium, if any, and interest on the Bonds, to pay to the owners of Bonds the
funds so held by the Trustee as and when such payment becomes due, and on
written demand of the Lessee and the Issuer, shall assign and transfer to or
upon the order of the Lessee all property (in excess of the amounts required for
the foregoing) then held by the Trustee and shall execute such documents as may
be reasonably required by the Lessee in this regard.
SECTION 1002. Bonds Deemed to be Paid. All outstanding Bonds shall, prior
to the maturity or redemption date thereof, be deemed to have been paid within
the meaning and with the effect expressed in Section 1001 if (a) in case said
Bonds are to be redeemed on any date prior to their maturity, the Issuer shall
have given to the Trustee in form satisfactory to it irrevocable instructions to
mail on a date in accordance with the provisions of Section 402 hereof notice of
redemption of such Bonds on said redemption date, such notice to be given in
accordance with the provisions of Section 402 hereof, (b) there shall have been
deposited with the Trustee either moneys in an amount, or obligations of or
guaranteed as to principal and interest by the United States of America, which
shall not contain provisions permitting the redemption thereof at the option of
the Issuer, the principal of and the interest on which when due, and without any
reinvestment thereof, will provide moneys which together with the moneys, if
any, deposited with or held by the Trustee at the same time, shall be sufficient
to pay when due the principal of and premium, if any, and interest due and to
become due on said Bonds on and prior to the redemption date or maturity date
thereof, as the case may be, and (c) in the event all or any part of said Bonds
are not by their terms subject to redemption within the next succeeding sixty
(60) days, the Issuer shall have given the Trustee in form satisfactory to it
irrevocable written instructions to mail, as soon as practicable in the same
manner as a notice of redemption is mailed pursuant to Section 402 hereof, a
notice to the holders of such Bonds that the deposit required by (b) above has
been made with the Trustee and that the said Bonds are deemed to have been paid
in accordance with this Section and stating such maturity or redemption date
upon which moneys are to be available for the payment of the principal of and
premium, if any, and interest on said Bonds. Neither the obligations nor moneys
deposited with the Trustee pursuant to this Section nor principal or interest
payments on any such securities shall be withdrawn or used for any purpose other
than, and shall be held in trust for, the payment of the principal of and
premium, if any, and interest on said Bonds; provided that any cash received
from such principal or interest payments on such obligations deposited with the
Trustee, if not then needed for such purpose, shall, to the extent practicable,
be reinvested in obligations of the type described in clause (b) of this
paragraph maturing at times and in amounts sufficient to pay when due the
principal of and premium, if any, and interest to become due on said Bonds on
and prior to such redemption date or maturity date thereof, as the case may be,
and the interest earned from
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such reinvestments may be paid over to the Lessee, as received by the Trustee,
free and clear of any trust, lien and pledge.
Any release under this Section 1002 shall be conditioned upon payment to
the Trustee of all reasonable compensation for all services rendered by it under
this Indenture and all its reasonable expenses, charges and other disbursements
and those of its attorneys, agents and employees, incurred on and about the
administration of trusts by this Indenture created and the performance of its
powers and duties under this Indenture.
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ARTICLE XI
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
SECTION 1101. Defaults; Events of Default. If any of the following events
occur, subject to the provisions of Section 1112 hereof, it is hereby defined as
and declared to be and to constitute an "event of default":
(a) Default in the due and punctual payment of any interest on any
Bond; or
(b) Default in the due and punctual payment of the principal or
redemption premium, if any, on any Bond, whether at the stated maturity
thereof, or upon proceedings for redemption thereof, or upon the maturity
thereof by declaration; or
(c) Default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer in this
Indenture or in the Bonds contained, and the continuance thereof for a
period of sixty (60) days after written notice given to the Issuer and the
Lessee by the Trustee or to the Trustee and the Issuer by the holders of
not less than twenty-five percent (25%) in aggregate principal amount of
Bonds then outstanding, unless the Lessor and the Trustee (with any
required consent of the Bondholders pursuant to Section 1111 hereof) shall
agree in writing to an extension of such time prior to its expiration; or
(d) The occurrence, of an "event of default" under the Lease Agreement
as provided in Section 9.1 thereof which shall not be cured by the Lessee
pursuant to the terms of the Lease Agreement; or
(e) The failure of any Guarantor to observe any covenant, condition or
agreement set forth in the Guaranty Agreement.
SECTION 1102. Acceleration. Subject to the provisions of Section 1112
hereof, upon the occurrence of an event of default hereunder the Trustee may,
and upon the written request of the holders of not less than a majority in
aggregate principal amount of Bonds then outstanding shall, by notice in writing
delivered to the Issuer and the Lessee, declare the principal of all Bonds then
outstanding and the interest accrued thereon immediately due and payable, and
such principal and interest shall thereupon become and be immediately due and
payable. Upon any declaration of acceleration hereunder, the Trustee shall
immediately exercise such rights as it may have to declare all rental payments
payable under Section 4.3 of the Lease Agreement to be immediately due and
payable in accordance with Section 9.2(a) of the Lease Agreement.
SECTION 1103. Surrender of Possession of Leased Facilities; Rights and
Duties of Trustee in Possession. Upon the occurrence of an event of default
hereunder, the Trustee shall have the power to require the Issuer to surrender
possession of the Leased Facilities and the Issuer, upon written demand of the
Trustee, shall forthwith surrender the possession of, and it shall be lawful for
the Trustee, by such officer or agent as it may appoint, to take possession of,
all or any part of the Leased Facilities together with the books, papers and
accounts of the Issuer pertaining thereto, and including the rights and the
position of the Issuer under the Lease Agreement and to hold, operate and manage
the same, and from time to time make all needful repairs and improvements as by
the Trustee shall be deemed commercially reasonable or necessary; and the
Trustee may lease the Leased Facilities, or any part thereof, in the name and
for the account of the Issuer and collect, receive and sequester the rents,
revenues, issues, earnings, income, products and profits therefrom, and out of
the same and any moneys received from any receiver or any part thereof pay,
and/or set up proper reserves for the payment of, all proper costs and expenses
of so taking, holding and managing the same, including reasonable
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compensation to the Trustee, its agents and counsel, and any charges of the
Trustee hereunder, and any taxes and assessments and other charges prior to the
lien of this Indenture which the Trustee may deem commercially reasonable or
necessary to pay, and all expenses of such repairs and improvements, and apply
the moneys so received in accordance with the provisions of Section 1107 hereof.
Whenever all that is due upon the Bonds shall have been paid and all defaults
made good, the Trustee shall surrender possession to the Issuer, its successors
or assigns; the same right of entry, however, to exist upon any subsequent event
of default.
While in possession of such property the Trustee shall render annually to
the Issuer and the Lessee and also to the Bondholders, at their addresses set
forth in the Bond Register, a summarized statement of income and expenditures in
connection therewith.
Upon the occurrence of an event of default hereunder, to the extent that
such rights may then lawfully be waived, neither the Issuer, nor anyone claiming
through or under it, shall set up, claim, or seek to take advantage of any
appraisement, valuation, stay, execution or redemption laws now or hereafter in
force, in order to prevent or hinder the enforcement of this Indenture, and the
Issuer, for itself and all who may claim through or under it, hereby waives, to
the extent that it lawfully may do so, the benefit of all such laws and all
right of appraisement and redemption to which it may be entitled under the laws
of Louisiana.
SECTION 1104. Other Remedies; Rights of Bondholders. Upon the occurrence of
an event of default the Trustee may, as an alternative, either after entry or
without entry, pursue any available remedy by action at law or suit in equity to
enforce the payment of the principal of, premium, if any, and interest on the
Bonds then outstanding.
If an event of default shall have occurred, and if requested so to do by
the holders of a majority in aggregate principal amount of Bonds then
outstanding and indemnified as provided in subsection (m) of Section 1201
hereof, the Trustee shall be obliged to exercise such of the rights and powers
conferred by this Section and by Section 1103 hereof as the Trustee, being
advised by counsel, shall deem most expedient in the interest of the
Bondholders.
No remedy by the terms of this Indenture conferred upon or reserved to the
Trustee (or to the Bondholders) is intended to be exclusive of any other remedy,
but each and every such remedy shall be cumulative and shall be in addition to
any other remedy given to the Trustee or to the Bondholders hereunder 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 or event of default shall impair any such right or power or shall be
construed to be a waiver of any such default or event of default or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or event of default hereunder, whether by the
Trustee pursuant to the provisions of Section 1111 hereof, or by the
Bondholders, shall extend to or shall affect any subsequent default or event of
default or shall impair any rights or remedies consequent thereon.
SECTION 1105. Right of Bondholders to Direct Proceedings. Anything in this
Indenture to the contrary notwithstanding, the holders of a majority of the
aggregate principal amount of Bonds then outstanding shall have the right, at
any time, by an instrument or instruments in writing executed and delivered to
the Trustee, to direct the time, method and place of conducting all proceedings
to be taken in connection with the enforcement of the terms and conditions of
this Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided, that such direction shall not be otherwise than in
accordance with the provisions of law and of this Indenture.
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SECTION 1106. Appointment of Receivers. Upon the occurrence of an event of
default hereunder, and upon the filing of a suit or other commencement of
judicial proceedings to enforce the rights of the Trustee and of the Bondholders
under this Indenture, the Trustee shall be entitled, as a matter of right, to
the appointment of a receiver or receivers of the Leased Facilities and of the
rents, revenues, issues, earnings, income, products and profits thereof, pending
such proceedings, with such powers as the court making such appointment shall
confer.
SECTION 1107. Application of Moneys. All moneys received by the Trustee
with respect to the Leased Facilities pursuant to any right given or action
taken under the provisions of this Article shall, after payment of the costs and
expenses of the proceedings resulting in the collection of such moneys and of
the expenses, liabilities and advances incurred or made by the Trustee, be
deposited in the Bond Fund, and all moneys so deposited in the Bond Fund and all
moneys held or deposited in the Bond Fund during the continuance of an event of
default hereunder and available for payment of the Bonds under the provisions of
Section 603 hereof shall (after payment of all fees and expenses of the Trustee)
be applied as follows:
(a) Unless the principal of all Bonds shall have become or shall have
been declared due and payable, all such moneys shall be applied:
First--To the payment to the persons entitled thereto of all
installments of interest then due on the Bonds, in the order of the
maturity of the installments of such interest and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts due
on such installment, to the persons entitled thereto, without any
discrimination or privilege; and
Second--To the payment to the persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due
(other than Bonds called for redemption the payment of which moneys
are held pursuant to the provisions of this Indenture), in the order
of their due dates, with interest on such Bonds from the respective
dates upon which they become due and, if the amount available shall
not be sufficient to pay in full Bonds due on any particular date,
together with such interest, then to the payment ratably, according to
the amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege.
(b) If the principal of all the Bonds shall have become due or shall
have been declared due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid upon all of the
Bonds, without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably,
according to the amount due respectively for principal and interest, to the
persons entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and
annulled under the provisions of this Article then, subject to the
provisions of paragraph (b) of this Section in the event that the principal
of all the Bonds shall later become due or be declared due and payable, the
moneys shall be applied in accordance with the provisions of paragraph (a)
of this Section.
Whenever moneys are to be applied pursuant to the provisions of this
Section, such monies shall be applied at such times, and from time to time, as
the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional monies becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an interest payment date
unless it shall deem another date more suitable) upon which such application is
to be
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made and upon such date interest on the amounts of principal to be paid on such
dates shall cease to accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the fixing of any
such date, and shall not be required to make payment to the holder of any Bond
until such Bond shall be presented to the Trustee for appropriate endorsement or
for cancellation if fully paid.
Whenever all of the Bonds and interest thereon have been paid under the
provisions of this Section 1107 and all fees, charges and expenses of the
Trustee and all other amounts required to be paid hereunder have been paid, any
balance remaining in the Bond Fund shall be paid to the Lessee as provided in
Section 609 hereof.
SECTION 1108. Remedies Vested in Trustee. All rights of action (including
the right to file proof of claims) under this Indenture or under any of the
Bonds may be enforced by the Trustee without the possession of any of the Bonds
or the production thereof in any trial or other proceedings relating thereto and
any such suit or proceeding instituted by the Trustee shall be brought in its
name as Trustee without the necessity of joining as plaintiffs or defendants any
holders of the Bonds, and any recovery or judgment shall, subject to the
provisions of Section 1107 hereof, be for the equal benefit of the holders of
the outstanding Bonds.
SECTION 1109. Rights and Remedies of Bondholders. No holder of any Bond
shall have any right to institute any suit, action or proceeding in equity or at
law for the enforcement of this Indenture or for the execution of any trust
thereof or for the appointment of a receiver or any other remedy hereunder,
unless a default has occurred of which the Trustee has been notified as provided
in subsection (h) of Section 1201, or of which by said subsection it is deemed
to have notice, nor unless also such default shall have become an event of
default hereunder and the holders of twenty-five percent (25%) in aggregate
principal amount of Bonds then outstanding shall have made written request to
the Trustee and shall have offered it reasonable opportunity either to proceed
to exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name, nor unless also they have offered to the Trustee
indemnity as provided in Section 1201 nor unless the Trustee shall thereafter
fail or refuse to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its, his or their own name or names; and such
notification, request and offer of indemnity are hereby declared in every case
at the option of the Trustee to be conditions precedent to the execution of the
powers and trusts of this Indenture, and to any action or cause of action for
the enforcement of this Indenture, or for the appointment of a receiver or for
any other remedy hereunder; it being understood and intended that no one or more
holders of the Bonds shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his or their action or
to enforce any right hereunder except in the manner herein provided and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of the holders of all Bonds
then outstanding. Nothing in this Indenture contained shall, however, affect or
impair the right of any Bondholder to enforce the payment of the principal of
and interest on any Bond at and after the maturity thereof, or the obligation of
the Issuer to pay the principal of and interest and premium, if any, on each of
the Bonds issued hereunder to the respective holders thereof at the time, place,
from the source and in the manner stated herein and in said Bonds.
SECTION 1110. Termination of Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture by the appointment of a
receiver, by entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Issuer, the Lessee and the Trustee
shall be restored to their former positions and rights hereunder, and all
rights, remedies and powers of the Trustee shall continue as if no such
proceeding had been taken.
SECTION 1111. Waivers of Events of Default. The Trustee shall waive any
event of default hereunder and its consequences and rescind any declaration of
maturity of principal of and interest on the Bonds upon the written request of
the holders of (1) a majority in aggregate principal amount of all the Bonds
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then outstanding in respect of which default in the payment of principal and/or
interest exists, or (2) a majority in aggregate principal amount of all Bonds
then outstanding in the case of any other default; provided, however, that there
shall not be waived without the consent of the holders of all the Bonds
outstanding (a) any event of default in the payment of the principal of any
outstanding Bonds at the date of maturity specified therein or (b) any default
in the payment when due of the interest on any such Bonds unless, prior to such
waiver or rescission, all arrears of interest, with interest (to the extent
permitted by law) on overdue of installments of interest at the Base Rate, in
respect of which such default shall have occurred, or all arrears of payments of
principal when due, as the case may be, and all expenses of the Trustee in
connection with such default shall have been paid or provided for, and in case
of any such waiver or rescission, or in case any proceeding taken by the Trustee
on account of any such default shall have been discontinued or abandoned or
determined adversely, then and in every such case the Issuer, the Trustee and
the Bondholders shall be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to any subsequent or
other default, or impair any right consequent thereon.
SECTION 1112. Notice of Defaults; Opportunity of Lessee to Cure Defaults.
Anything herein to the contrary notwithstanding, no default specified in Section
1101(c) hereof on the part of the Issuer or the Lessee shall constitute an event
of default hereunder until actual notice of such default by registered or
certified mail shall be given by the Trustee or by the holders of not less than
twenty-five percent (25%) in aggregate principal amount of all the Bonds then
outstanding to the Issuer and to the Lessee, and the Issuer and the Lessee shall
have had sixty (60) days after receipt of such notice to correct said default or
cause said default to be corrected, and shall not have corrected said default or
caused said default to be corrected within such period; provided, however, if
any default specified in Section 1101(c) shall be such that it cannot be
corrected within such period, it shall not constitute an event of default
hereunder if corrective action is instituted by the Lessee within the applicable
period and diligently pursued until the default is corrected; and provided
further if any default specified in Section 1101(c) should occur by reason of
the failure of the Lessee to perform any covenant, condition or agreement on its
part contained in the Lease Agreement which failure would not constitute an
event of default under Section 9.1 of the Lease Agreement by reason of force
majeure as defined therein, then such default shall not constitute an event of
default under Section 1101(c) hereof.
With regard to an alleged default concerning which notice is given to the
Lessee under the provisions of this Section 1112, the Issuer hereby grants the
Lessee full authority for the account of the Issuer to perform any covenant or
obligation the non-performance of which is alleged in said notice to constitute
a default in the name and stead of the Issuer with full power to do any and all
things and acts to the same extent that the Issuer could do and perform any such
things and acts and with power of substitution.
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ARTICLE XII
THE TRUSTEE
SECTION 1201. Acceptance of Trusts. The Trustee hereby accepts the trusts
imposed upon it by this Indenture, and agrees to perform said trusts, but only
upon and subject to the following express terms and conditions, and no implied
covenants or obligations shall be read into this Indenture against the Trustee:
(a) The Trustee, prior to the occurrence of an event of default
hereunder and after the curing of all events of default which may have
occurred hereunder, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an event of
default has occurred hereunder (which has not been cured) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent
trustee would exercise or use under the circumstances in the conduct of its
corporate trust duties.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees but shall be answerable for the conduct of the same in accordance
with the standard specified above, and shall be entitled to act upon the
opinion or advice of its counsel concerning all matters of trust hereof and
the duties hereunder, and may in all cases pay such reasonable compensation
to all such attorneys, agents, receivers and employees as may reasonably be
employed in connection with the trust hereof. The Trustee may act upon an
Opinion of Counsel and shall not be responsible for any loss or damage
resulting from any action or non-action by it taken or omitted to be taken
in good faith in reliance upon such Opinion of Counsel.
(c) The Trustee shall not be responsible for any recital herein or in
the Bonds (except in respect to the certificate of the Trustee endorsed on
the Bonds), or for the recording or re-recording, filing or refiling of
this Indenture or for insuring the Leased Facilities or collecting any
insurance moneys, or for the validity of the execution by the Issuer of
this Indenture or of any supplements hereto or instruments of further
assurance, or for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby, or otherwise as to the
maintenance of the security hereof, and the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the Issuer or on the part of the
Lessee in connection with the matters referred to in Sections 503 and 504
hereof, except as hereinafter set forth; but the Trustee may require of the
Issuer or the Lessee full information and advice as to the performance of
the covenants, conditions and agreements aforesaid as to the condition of
the Leased Facilities. Except as otherwise provided in Section 1103 hereof,
the Trustee shall have no obligation to perform any of the duties of the
Issuer as lessor under the Lease Agreement; and the Trustee shall not be
responsible or liable for any loss suffered in connection with any
investment of funds made by it in accordance with Section 801.
(d) The Trustee shall not be liable for the use of any Bonds
authenticated or delivered hereunder. The Trustee may become the owner of
Bonds secured hereby with the same rights which it would have if not
Trustee.
(e) The Trustee shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram or other paper or
document believed by it to be genuine and correct and action taken by the
Trustee pursuant to this Indenture upon the request or authority or consent
of any person who at the time of making such request or giving such
authority or consent is the owner of any Bond, shall be conclusive and
binding upon all future owners of the same Bond and upon Bonds issued in
exchange therefor or in place thereof.
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(f) As to the existence or non-existence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon a certificate signed on behalf of the Issuer
by its President or Vice President or such other person as may be
designated for such purpose by resolution of the Board of Directors of the
Issuer, the governing authority of the Issuer, and attested by its
Secretary-Treasurer or such other person as may be designated for such
purpose by resolution of the Issuer as sufficient evidence of the facts
therein contained and prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (h) of this Section, or
of which pursuant to said subsection it is deemed to have notice, shall
also be at liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but
may at its discretion secure such further evidence as it deems necessary or
advisable, but shall in no case be bound to secure the same. The Trustee
may accept a certificate of the Secretary-Treasurer of the Issuer under the
seal of the Issuer to the effect that a resolution in the form therein set
forth has been adopted by the Issuer as conclusive evidence that such
resolution has been duly adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not
be answerable for other than its negligence or wilful misconduct.
(h) The Trustee shall not be required to take notice or be deemed to
have notice of any default hereunder except any default under paragraphs
(a) or (b) of Section 1101 unless the Trustee shall be specifically
notified in writing of such default by the Issuer or by the holders of at
least twenty-five percent (25%) in aggregate principal amount of Bonds then
outstanding and all notices or other instruments required by this Indenture
to be delivered to the Trustee must, in order to be effective, be delivered
at the principal office of the Trustee, and in the absence of such notice
so delivered the Trustee may conclusively assume there is no default except
as aforesaid.
(i) The Trustee shall not be personally liable for any debts
contracted or for damages to persons or to personal property injured or
damaged or for salaries or non-fulfillment of contracts during any period
in which it may be in the possession of or managing the Leased Facilities
as in this Indenture provided.
(j) At any and all reasonable times the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right, but shall not be required, to
inspect any and all books, papers and records of the Issuer pertaining to
the Leased Facilities and the Bonds, and to take such memoranda from and in
regard thereto as may be desired.
(k) The Trustee shall not be required to give any bond or surety in
respect to the execution of the said trusts and powers or otherwise in
respect of the premises.
(l) Notwithstanding anything elsewhere in this Indenture contained,
the Trustee shall have the right, but shall not be required, to demand, in
respect of the authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the purview of
this Indenture, any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to that
by the terms hereof required, as a condition of such action by the Trustee
deemed desirable for the purpose of establishing the right of the Issuer to
the authentication of any Bonds, the withdrawal of any cash, or the taking
of any other action by the Trustee.
(m) Before taking any action under this Section 1201 or Article XI of
this Indenture, the Trustee may require that satisfactory indemnity be
furnished to it for the reimbursement of all
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expenses to which it may be put and to protect it against all liability,
except liability which is adjudicated to have resulted from its negligence
or wilful misconduct, by reason of any action so taken.
(n) All moneys received by the Trustee or any paying agent shall,
until used or applied or invested as herein provided, be held in trust in
the manner and for the purposes for which they were received but need not
be segregated from other funds except to the extent required by this
Indenture or law. Neither the Trustee nor any paying agent shall be under
any liability for interest on any moneys received hereunder except such as
may be agreed upon in writing.
SECTION 1202. Fees, Charges and Expenses of Trustee. The Trustee shall be
entitled to payment and/or reimbursement for reasonable fees for its Ordinary
Services rendered hereunder and all advances, counsel fees and other Ordinary
Expenses reasonably and necessarily made or incurred by the Trustee in
connection with such Ordinary Services and, in the event that it should become
necessary that the Trustee perform Extraordinary Services, it shall be entitled
to reasonable extra compensation therefor, and to reimbursement for reasonable
and necessary Extraordinary Expenses in connection therewith; provided, that if
such Extraordinary Services or Extraordinary Expenses are occasioned by the
gross negligence or wilful misconduct of the Trustee, it shall not be entitled
to compensation or reimbursement therefor. The Trustee shall be entitled to
payment and reimbursement for the reasonable fees and charges of the Trustee as
paying agent and registrar for the Bonds as hereinabove provided. Upon the
occurrence of an event of default hereunder, but only upon such occurrence, the
Trustee shall have a first lien with right of payment prior to payment on
account of interest or principal of any Bond, from the moneys received by it for
the foregoing advances, fees, costs and expenses incurred.
SECTION 1203. Notice to Bondholders if Default Occurs. If a default occurs
of which the Trustee is by subsection (h) of Section 1201 hereof required to
take notice or if notice of default be given as in said subsection (h) provided,
then within five (5) business days of obtaining knowledge of such default, the
Trustee shall give written notice thereof by first class mail to the owners of
all Bonds then outstanding shown by the Bond Register.
SECTION 1204. Intervention by Trustee. In any judicial proceeding to which
the Issuer is a party and which in the opinion of the Trustee and its counsel
has a substantial bearing on the interests of owners of the Bonds, the Trustee
may intervene on behalf of Bondholders and shall do so if requested in writing
by the owners of at least twenty-five percent (25%) in aggregate principal
amount of all Bonds then outstanding, provided that the Trustee shall first have
been offered such reasonable indemnity as it may require against the costs,
expenses and liabilities which it may incur in or by reason of such proceeding.
The rights and obligations of the Trustee under this Section are subject to the
approval of a court of competent jurisdiction.
SECTION 1205. Successor Trustee. Any corporation or association into which
the Trustee may be converted or merged, or with which it may be consolidated, or
to which it may sell or transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which it is a party,
ipso facto, shall be and become successor Trustee hereunder and vested with all
of the title to the whole property or trust estate and all the trusts, powers,
discretions, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 1206. Resignation by the Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving thirty
(30) days' written notice to the Issuer and the Lessee and by first class mail
to each registered owner of Bonds as shown by the Bond Register, and such
resignation shall
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take effect upon the appointment of a successor Trustee by the Bondholders or by
the Issuer. Such notice to the Issuer and to the Lessee may be served personally
or sent by registered mail.
SECTION 1207. Removal of the Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer, and signed by the owners of a majority in aggregate
principal amount of Bonds then outstanding.
SECTION 1208. Appointment of Successor Trustee by the Bondholders;
Temporary Trustee. In case the Trustee hereunder shall resign or be removed, or
be dissolved, or shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken under the
control of any public officer or officers or of a receiver appointed by a court,
a successor may be appointed by the owners of a majority in aggregate principal
amount of Bonds then outstanding, by an instrument or concurrent instruments in
writing signed by such owners, or by their attorneys-in-fact, duly authorized;
provided, nevertheless, that in case of such vacancy the Issuer by an instrument
executed and signed by its President and attested by its Secretary-Treasurer
under its seal, may appoint a temporary Trustee to fill such vacancy until a
successor Trustee shall be appointed by the Bondholders in the manner above
provided; and any such temporary Trustee so appointed by the Issuer shall
immediately and without further act be superseded by the Trustee so appointed by
such Bondholders. Every such Trustee appointed pursuant to the provisions of
this Section shall be a trust company or bank in good standing within the State
having a reported capital and surplus of not less than twenty-five million
dollars, if there be such an institution willing, qualified and able to accept
the trust upon reasonable or customary terms. So long as there does not exist
any event of default under the Lease Agreement, the appointment of any successor
Trustee pursuant to the provisions of this Section shall be subject to the
approval of the Lessee, which approval shall not be unreasonably withheld.
SECTION 1209. Concerning Any Successor Trustees. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer and the Lessee an instrument in writing accepting such
appointment hereunder, and thereupon such successor, without any further act,
deed or conveyance, shall become fully vested with all the estates, properties,
rights, powers, trusts, duties and obligations of its predecessors; but such
predecessor shall, nevertheless, on the written request of the Issuer, or of its
successor, execute and deliver an instrument transferring to such successor
Trustee all the estates, properties, rights, powers, and trusts of such
predecessor hereunder; and every predecessor Trustee shall deliver all
securities and moneys held by it as Trustee hereunder to its successor. Should
any instrument in writing from the Issuer be required by any successor Trustee
for more fully and certainly vesting in such successor the estate properties,
rights, powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The resignation of any
Trustee and the instrument or instruments removing any Trustee and appointing a
successor hereunder, together with all other instruments provided for in this
Article shall be filed and/or recorded by the successor Trustee in each
recording office where the Indenture shall have been filed and/or recorded.
SECTION 1210. Right Of Trustee to Pay Taxes and Other Charges. In case any
tax, assessment or governmental or other charge upon any part of the Trust
Estate is not paid as required herein, the Trustee may pay such tax, assessment
or governmental or other charge, without prejudice, however, to any rights of
the Trustee or the Bondholders hereunder arising in consequence of such failure;
and any amount at any time so paid under this Section, with interest thereon
from the date of payment at the rate of interest which is one percent (1%)
higher than the highest rate of interest borne by any of the Bonds, shall become
so much additional indebtedness secured by this Indenture, and the same shall be
given a preference in payment over any of the Bonds, and shall be paid out of
the proceeds of revenues collected from the property herein conveyed, if not
otherwise caused to be paid; but the Trustee shall be under no obligation to
make any such payment unless it shall have been requested to do so in writing by
the holders of at least twenty-five percent
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(25%) in aggregate principal amount of all Bonds then outstanding and shall have
been provided with adequate funds for the purpose of such payment.
SECTION 1211. Trustee Protected in Relying Upon Resolutions, etc. The
resolutions, opinions, certificates and other instruments provided for in this
Indenture may be accepted by the Trustee as conclusive evidence of the facts and
conclusions stated therein and shall be full warrant, protection and authority
to the Trustee for the release of property and the withdrawal of cash hereunder.
SECTION 1212. Successor Trustee as Trustee of Bond Fund; Paying Agent and
Registrar. In the event of a change in the office of Trustee, the predecessor
Trustee which has resigned or been removed shall cease to be trustee of the Bond
Fund and paying agent for principal and interest and premium, if any, on the
Bonds and registrar and the successor Trustee shall become such trustee, paying
agent and registrar.
SECTION 1213. Trust Estate May be Vested in Separate or Co-Trustee. It is
the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the law of the State) denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture or the Lease Agreement, and in particular in
case of the enforcement of either on default, or in case the Trustee deems that
by reason of any present or future law of any jurisdiction it may not exercise
any of the powers, rights or remedies herein granted to the Trustee or hold
title to the Trust Estate, in trust, as herein granted, or take any other action
which may be desirable or necessary in connection therewith, it may be necessary
that the Trustee appoint an additional individual or institution as a separate
or co-trustee. The following provisions of this Section 1213 are adopted to
these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vested
in such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate trustee or co-trustee so appointed by the Trustee for
more fully and certainly vesting in and confirming to him such properties,
rights, powers, trusts, duties and obligations, any and all such deeds,
conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate trustee or
co-trustee, or a successor to either, shall die, become incapable of acting,
resign, or be removed, all the estates properties, rights, powers, trusts,
duties and obligations of such separate trustee or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate trustee or
co-trustee.
SECTION 1213. Trustee Not Responsible for Insurance, Taxes or Execution of
Indenture. The Trustee shall not be under any obligation to effect or maintain
insurance or to renew any policies of insurance or to inquire as to the
sufficiency of any policies of insurance carried by the Lessee or to report, or
make or file claims or proof of loss for, any loss or damage insured against or
which may occur, or to keep itself informed or advised as to the payment of any
taxes or assessments, or to require any such payment to be made. The Trustee
shall have no responsibility in respect of the validity, sufficiency, due
execution or acknowledgment of this Indenture or the validity or sufficiency of
the security provided hereunder or in respect of the validity of the Bonds or
the due execution or issuance thereof, except as to the authentication thereof.
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ARTICLE XIII
SUPPLEMENTAL INDENTURES
SECTION 1301. Supplemental Indentures Not Requiring Consent of Bondholders.
The Issuer and the Trustee may, without the consent of, or notice to, any of the
Bondholders, enter into an indenture, or indentures supplemental to this
Indenture as shall not be inconsistent with the terms and provisions hereof for
any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this
Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Bondholders or the Trustee or
either of them; and
(c) To subject to the lien and pledge of this Indenture additional
revenues, properties or collateral or to more precisely identify the
revenues, properties or collateral subject to the lien of this Indenture.
SECTION 1302. Supplemental Indentures Requiring Consent of Bondholders.
Exclusive of supplemental indentures covered by Section 1301 hereof and subject
to the terms and provisions contained in this Section, and not otherwise, the
holders of not less than two-thirds in aggregate principal amount of the Bonds
then outstanding shall have the right from time to time, anything contained in
this Indenture to the contrary notwithstanding, to consent to and approve in
writing the execution by the Issuer and the Trustee of such other indenture or
indentures supplemental hereto as shall be deemed necessary and desirable by the
Issuer for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this
Indenture or in any supplemental indenture; provided, however, that nothing in
this Section contained shall permit, or be construed as permitting without the
consent of the holders of all the Bonds then outstanding (a) an extension of the
stated maturity or reduction in the principal amount of, or reduction in the
rate or extension of the time of payment of interest on, or the reduction of any
premium payable on the redemption of, any Bonds, or (b) the creation of any lien
on the Trust Estate (other than Permitted Encumbrances) prior to or on a parity
with the lien of this Indenture, or (c) a reduction in the aforesaid aggregate
principal amount of Bonds the holders of which are required to consent to any
such supplemental indenture. No such modification shall modify the rights,
duties or immunities of the Trustee, without the written consent of the Trustee.
If at any time the Issuer shall request the Trustee to enter into any such
supplemental indenture for any of the purposes of this Section, the Trustee
shall, upon being satisfactorily indemnified with respect to expenses, cause
notice of the proposed execution of such supplemental indenture to be sent to
the address of each registered owner of Bonds as set forth in the Bond Register.
Such notice shall briefly set forth the nature of the proposed supplemental
indenture and shall state that copies thereof are on file at the principal
office of the Trustee for inspection by all Bondholders. If, within sixty days
(60) or such longer period as shall be prescribed by the Issuer following such
notice, the holders of not less than two-thirds in aggregate principal amount of
the Bonds outstanding at the time of the execution of any such supplemental
indenture shall have consented in writing to and approved the execution thereof
as herein provided, no holder of any Bond shall have any right to object to any
of the terms and provisions contained therein, or the operation thereof, or in
any manner to question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or from taking any
action pursuant to the provisions thereof. Upon the execution of any such
supplemental indenture as in this Section permitted and provided, this Indenture
shall be and redeemed to be modified and amended in accordance therewith.
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The Trustee may receive, and may rely on, an Opinion of Counsel as
conclusive evidence that any indenture supplemental hereto entered into by the
Issuer and the Trustee complies with the provisions of this Article XIII.
Anything herein to the contrary notwithstanding, so long as the Lessee is
not in default under the Lease Agreement and no event of default exists
hereunder, a supplemental indenture under this Article XIII which affects any
rights of the Lessee shall not become effective unless and until the Lessee
shall have consented in writing to the execution and delivery of such
supplemental indenture.
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ARTICLE XIV
AMENDMENT TO LEASE AGREEMENT
OR GUARANTY AGREEMENT
SECTION 1401. Amendments, etc., to Lease Agreement Not Requiring Consent of
Bondholders. The Issuer and the Trustee may, without the consent of or notice to
the Bondholders, consent to any amendment, change or modification of the Lease
Agreement as may be required (i) by the provisions of the Lease Agreement and
this Indenture, (ii) for the purpose of curing any ambiguity or formal defect or
omission, (iii) in connection with any facilities, machinery, or equipment
substituted or the adding of additional facilities, machinery or equipment in
accordance with the provisions of the Lease Agreement, (iv) in connection with
additional real estate which pursuant to the Lease Agreement is to become part
of the Leased Facilities, or (v) in connection with any other change therein
which, in the judgment of the Trustee, is not to the prejudice of the Trustee or
the holders of the Bonds.
SECTION 1402. Amendments of Guaranty Agreement. Without the consent of or
notice to the Bondholders, the Guarantors and the Trustee may enter into any
amendment, change or modification of the Guaranty Agreement to cure any
ambiguity, formal defect, omission or inconsistent provisions or to make any
other change that does not adversely affect the interests of the Bondholders.
The Guarantors and the Trustee shall not enter into any amendment, change or
modification of the Guaranty Agreement that would adversely affect the rights of
the Trustee or the holders of the Bonds without the written consent of the
holder of each Bond then outstanding that would be adversely affected by such
amendment, change or modification.
SECTION 1403. Amendment, etc., to Lease Agreement Requiring Consent of
Bondholders. Except for amendments, changes or modifications as provided in
Section 1401 hereof, neither the Issuer nor the Trustee shall consent to any
amendment, change or modification of the Lease Agreement without notification
and the written approval or written consent of the holders of not less than
two-thirds in aggregate principal amount of the Bonds at the time outstanding
given and procured as provided in Section 1302; provided, however, no amendment,
change or modification of the Lease Agreement shall, without the written consent
of the holder or holders of each Bond then outstanding, (i) decrease the basic
rent payable under the Lease Agreement, (ii) reduce the stated term of the Lease
Agreement (other than renewal terms) to a period shorter than the period during
which the Bonds are outstanding, (iii) decrease the amount payable by the Lessee
in the event of its purchase of the Leased Facilities in accordance with the
provisions of the Lease Agreement, (iv) reduce the Lessee's obligations under
Section 4.5 of the Lease Agreement or (v) reduce the aforesaid aggregate
principal amount of Bonds the holders of which are required to consent to any
such amendment, change or modification. If at any time the Issuer and the Lessee
shall request the consent of the Trustee to any such proposed amendment, change
or modification of the Lease Agreement the Trustee shall, upon being
satisfactorily indemnified with respect to expenses, cause notice of such
proposed amendment, change or modification to be mailed in the same manner as
provided by Section 1302 hereof with respect to supplemental indentures. Such
notice shall briefly set forth the nature of such proposed amendment, change or
modification and shall state that copies of the instrument embodying the same
are on file at the principal office of the Trustee for inspection by all
Bondholders.
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ARTICLE XV
MISCELLANEOUS
SECTION 1501. Consents, etc., of Bondholders. Any consent, request,
direction, approval, objection or other instrument required by this Indenture to
be signed and executed by the Bondholders may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondholders in
person or by agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken
under such request or other instrument namely:
The fact and date of the execution by any person of any such writing
may be proved by the certificate of any officer in any jurisdiction who by
law has power to take acknowledgments within such jurisdiction that the
person signing such writing acknowledged before him the execution thereof,
or by affidavit of any witness to such execution.
For all purposes of this Indenture and of the proceedings for the
enforcement hereof, such person shall be deemed to continue to be the holder of
such Bond until the Trustee shall have received notice in writing to the
contrary.
SECTION 1502. Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed to give to any
person or company other than the parties hereto, and the holders of the Bonds,
any legal or equitable right, remedy or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein contained; this
Indenture and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and the holders of the Bonds as herein provided.
SECTION 1503. Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or Sections
in this Indenture contained, shall not affect the remaining portions of this
Indenture, or any part hereof.
SECTION 1504. Notices. It shall be sufficient service of any notice,
request, complaint, demand or other paper on the parties hereto if the same
shall be duly mailed to the Issuer by registered mail, postage - prepaid,
addressed to:
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Issuer: The Industrial Development Board
of the Parish of St. Xxxx, Louisiana, Inc.
0000 Xxxxxxx 00 Xxxx
Xxxxxx Xxxx, XX 00000
ATTN: President
Trustee: The Bank of New York Trust Company of Florida, N. A.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
ATTN: Corporate Trust Division
Lessee: Xxxxxx Aluminum, L.L.C.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Xx.
SECTION 1505. Trustee as Paying Agent and Registrar. The Trustee is hereby
designated and agrees to act as paying agent and the registrar for and in
respect to the Bonds.
SECTION 1506. Payments Due on Sundays and Holidays. In any case where the
date of maturity of interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be, in the State or where the principal corporate
trust office of the Trustee is located, a Sunday or a legal holiday or a day on
which banking institutions are authorized by law to close, then payment of
interest or principal (and premium, if any) need not be made on such date in
such city but may be made on the next succeeding business day not a Sunday or a
legal holiday or a day upon which banking institutions are, authorized by law to
close with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest shall accrue for the period after
such date.
SECTION 1507. Successors and Assigns. All the covenants, promises and
agreements in this Indenture, contained by or on behalf of the Issuer shall bind
and inure to the benefit of its successors and assigns whether so expressed or
not.
SECTION 1508. Counterparts. This Indenture 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.
SECTION 1509. Louisiana Substantive Law Governs. This Indenture shall be
considered to have been executed in the State of Louisiana and it is the
intention of the parties that the substantive law of the State of Louisiana
govern as to all questions of interpretation, validity and effect.
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IN WITNESS WHEREOF, the Issuer has caused this Indenture 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, all as of the day and
year above written.
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]
WITNESSES:
/s/ Xxxxx X. Xxxx
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/s/ Xxxxxxxx X. Xxxxxxxx
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-41-
IN WITNESS WHEREOF, the Trustee has caused this Indenture to be executed in
its behalf by an authorized officer of the Trustee and its seal to be impressed
hereon, all as of the day and year above written.
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N. A., as Trustee
By: /s/ Xxxxxxxxx Xxxx
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Xxxxxxxxx Xxxx, Vice President
WITNESSES:
[SEAL]
/s/ Xxxxxxx X. Xxxxx
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/s/ Xxxxxx X. Xxxxx
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-42-
EXHIBIT A
[FORM OF BOND]
BOND R- $
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THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND IT MAY NOT
BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, WITHOUT
OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE AND THE LESSEE REFERRED TO IN
THIS BOND TO THE EFFECT THAT SUCH SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR
TRANSFER WILL NOT VIOLATE APPLICABLE SECURITIES LAWS.
THE INTEREST ON THIS BOND IS NOT EXCLUDED FROM GROSS INCOME OF THE OWNERS FOR
FEDERAL INCOME TAX PURPOSES.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
PARISH OF ST. XXXX
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE PARISH OF ST. XXXX, LOUISIANA, INC.
TAXABLE REVENUE BOND
(XXXXXX ALUMINUM, L.L.C. PROJECT)
SERIES 2003
DATE:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
KNOW ALL MEN BY THESE PRESENTS that The Industrial Development Board of the
Parish of St. Xxxx, Louisiana, Inc., a public corporation and instrumentality of
the Parish of St. Xxxx of the State of Louisiana (hereinafter, together with its
successors and assigns, called the "Issuer"), for value received, hereby
promises to pay, but only from the source and as hereinafter provided, to the
Registered Owner specified above, or registered assigns, in 179 monthly
installments of $22,222.22 commencing September 1, 2003 through and including
July 1, 2018, and a final installment of $22,222.62 due and payable on August 1,
2018, unless redeemed prior thereto as hereinafter provided, the Principal
Amount specified above, and in like manner to pay interest on said sum from the
later of the date hereof or the most recent interest payment date to which
interest has been paid or duly provided for in full, until said Principal Amount
is paid, as follows:
The Lessee has previously determined that the Bonds shall initially accrue
interest at the three (3) month Libor Rate. On the last Business Day prior to
the expiration of the then applicable Interest Period for the Bonds, Lessee will
determine the Interest Period and whether the Bonds will accrue interest at
Libor Rate
EXHIBIT B
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.
EXHIBIT C
PAYEE AMOUNT
State Bond Commission:
c/o Foley & Xxxxxx, L.L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000 $ 5,000 - $3,500 payable to
State Bond Commission
- $1,500 payable to
Xxxxxx Aluminum as
reimbursement of
preliminary application
fee
Bond Counsel:
Xxxxx & Xxxxxx, L.L.P.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000 $34,275
Purchaser:
Whitney National Bank
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 $15,000 Origination fee
Purchaser Counsel:
Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx & Xxxxxx, L.L.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000 $ 9,975
Trustee:
The Bank of New York Trust
Company of Florida, N. A., Trustee
00000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000 $ 500 Acceptance fee
$ 2,500 First Annual fee
Trustee Counsel:
XxXxxxxxxx Xxxxxxxx PLLC
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 $ 3,500
or Base Rate. Upon the expiration of such Interest Period and any
Interest Period thereafter, the Lessee shall have the option to convert the
interest rate accruing on all (but not less than all) of the outstanding
principal balance of the Bonds into a Libor Rate or Base Rate; provided that (i)
Bonds cannot be converted when any Default has occurred and is continuing and in
such event the Bonds shall accrue interest at the Base Rate, and (ii) no
conversions of the Bonds are allowed until the expiration of the Interest Period
applicable to the existing rate of interest has expired.
Each conversion shall be enacted by the Authorized Lessee Representative by
giving to the Trustee at its main office prior to 11:00 a. m. (New Orleans time)
on or before the last Business Day of the applicable Interest Period written or
telephone Notice of Conversion specifying if the Bonds are to be converted into
accruing interest at Libor Rate or Base Rate and the Interest Period to be
applicable thereto. In the absence of any specific rate election by the Lessee
or if Lessee fails to provide such notice to the Trustee in a timely manner, the
Bonds shall accrue interest at the Base Rate.
Interest on the outstanding principal owed on the Bonds shall be computed
and assessed on the basis of the actual number of days elapsed over a year
composed of 360 days.
Additionally, with respect to each Interest Period, in the event that the
Bondholder shall have determined in good faith (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto):
(i) on any Interest Period or date of conversion that, by reason of
any changes arising after the date of this Indenture affecting the London
interbank market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Libor Rate; or
(ii) at any time, that the Bondholder shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Libor Rate because of any change since the date of this Indenture in
any applicable law or governmental rule, regulation, order, guideline or
request or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to the Bondholder of the
principal or interest on such Libor Rate (except for changes in the rate of
tax on, or determined by reference to, the net income or profits of the
Bondholder) or (B) a change in official reserve requirements; or
(iii) at any time, that the making or continuance of any Libor Rate
has been made (x) unlawful by any law or governmental rule, regulation or
order, (y) impossible by compliance by the Bondholder in good faith with
any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the date of this
Indenture which materially and adversely affects the London interbank
market;
then, and in any such event, the Bondholder shall promptly give notice (by
telephone confirmed in writing) to the Lessee. Thereafter (x) in the case of
clause (i) above, the Libor Rate shall no longer be available until such time as
the Bondholder notifies the Lessee that the circumstances giving rise to such
notice no longer exist, the Bonds shall then accrue interest at the Base Rate,
and any Notice of Conversion given by the Lessee with respect to the Libor Rate
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Lessee, (y) in the case of clause (ii) above, the Lessee
agrees to pay to the Bondholder, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as agreed to by the Bondholder and the
Lessee) as shall be required to compensate the Bondholder for such increased
costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to the Bondholder,
showing the basis for the calculation thereof, submitted to the Lessee by the
Bondholder in good faith shall, absent manifest error, be final and conclusive
and binding on all the parties hereto) and (z) in the case of clause (iii)
above, the Bonds shall accrue interest at the Base Rate. The Bondholder agrees
that if it gives notice to the Lessee of any of the events described in clause
(i) or (iii) above, it shall promptly notify the Lessee if such event ceases to
exist. If any such event described in clause (iii) above ceases to exist as to
the Bondholder, the Bondholder's obligations to convert the interest accruing on
the Bonds into Libor Rate on the terms and conditions contained herein shall be
reinstated.
All interest shall be computed on the basis of the actual number of days
elapsed over a year composed of 360 days. Interest will be due and payable on
the first day of each month, commencing September 1, 2003. Prepayments of
principal shall be noted by the Bondholder on Schedule A hereto. The principal
of and premium, if any, and interest on this Bond are payable in lawful money of
the United States of America by check or draft mailed to the registered owner
hereof whose name is registered at the close of business on the fifteenth
calendar day preceding any such payment date at the address of such owner as it
appears on the Bond Register kept by the Trustee except as set forth in the
Indenture with respect to a single owner of all Bonds outstanding. The term
"Trustee", when herein used, means The Bank of New York Trust Company of
Florida, N. A., of Jacksonville, Florida, or any successor trustee and
co-trustee under the Indenture mentioned below.
Payments of principal and interest, including prepayments of principal,
shall be noted on the appropriate payment record made a part of this Bond.
This Bond is one of an authorized issue of Taxable Revenue Bonds (Xxxxxx
Aluminum, L.L.C. Project) Series 2003 (the "Bonds") limited in aggregate
principal amount to $4,000,000, authorized by a resolution duly adopted by the
Board of Directors of the Issuer, the governing authority of the Issuer, all
issued or to be issued under a Trust Indenture dated as of June 1, 2003 (the
"Indenture") made from the Issuer to the Trustee, pursuant to and in full
conformity with the Constitution and the laws of the State of Louisiana, in
particular the provisions of Chapter 7 of Title 51 of the Louisiana Revised
Statutes of 1950, as amended. Payment of the principal of, premium, if any, and
interest on the Bonds has been guaranteed by Xxxxxx Industries, Inc., a Delaware
corporation, Xxxxxx Shipyard, L.L.C., a Louisiana limited liability company,
Orange Shipbuilding Company, Inc., a Texas corporation and Xxxxxx Aluminum,
L.L.C., a Louisiana limited liability company (the "Lessee"), pursuant to a
Guaranty Agreement dated as of June 1, 2003 entered into for the benefit of the
holders of the Bonds (the "Guaranty Agreement"). The Bonds are issued for the
purpose of providing a portion of the moneys necessary to finance the
acquisition, construction and equipping of an aluminum marine fabrication,
repair and conversion facility of the Lessee to be located in Amelia, St. Xxxx
Xxxxxx, Louisiana (the "Project"). The facilities (the "Leased Facilities") are
to be leased by the Issuer to the Lessee pursuant to a Lease Agreement between
the Issuer and the Lessee dated as of June 1, 2003 (the "Lease Agreement").
Reference is hereby made to the Indenture, the Lease Agreement and the Guaranty
Agreement, copies of which are filed with the Trustee, for the provisions, among
others, with respect to the nature and extent of the rights, duties and
obligations of the Issuer, the Lessee, the Trustee and the holders of the Bonds,
the terms upon which the Bonds are issued and secured, and the modification or
amendment of the Indenture, the Lease Agreement or the Guaranty Agreement, to
all of which the owner or holder of this Bond assents by the acceptance of this
Bond.
The Bonds are issued in the form of a single fully registered bond.
Upon payment of any required tax, fee or other governmental charge and
subject to the conditions provided in the Indenture, the Bonds, upon surrender
thereof at the office of the Corporate Trust Division of the Trustee with a
written instrument of transfer satisfactory to the Trustee, duly executed by the
registered
owner thereof or his duly authorized attorney, may, at the option of the
registered owner thereof, be exchanged for an equal aggregate principal amount
of registered Bonds in any of the authorized denominations and registered in
such name or names as may be requested.
This Bond shall be transferable only on the Bond Register (as defined in
the Indenture) upon surrender hereof at the office of the Corporate Trust
Division of the Trustee with a written instrument of transfer satisfactory to
the Trustee, duly executed by the Registered Owner hereof or his attorney duly
authorized in writing. Such transfer shall be without charge to the owner of
this Bond except that any tax, fee or other governmental charge required to be
paid with respect to such transfer shall be paid by the registered owner hereof
as a condition precedent to the exercise of such privilege.
The Bonds are subject to redemption prior to maturity, in whole or in part,
at the option of the Issuer, as directed by the Lessee, on any date, at a
redemption price equal to the principal amount thereof plus accrued interest to
the redemption date.
In the event any of the Bonds are called for redemption as aforesaid,
notice thereof identifying the Bonds to be redeemed shall be given by mailing a
copy of the redemption notice by first class mail, at least thirty (30) days
prior to the date fixed for redemption, to the registered owners of any Bonds to
be redeemed at their last addresses shown on the Bond Register. All Bonds so
called for redemption will cease to bear interest on the specified redemption
date, provided funds for their redemption are on deposit at the place of payment
at that time, and shall no longer be secured by the Indenture and shall not be
deemed to be outstanding under the provisions of the Indenture.
The Bonds are limited obligations of the Issuer and are payable from the
Bond Fund and shall be a valid claim of the respective holders thereof only
against the funds and the revenues and receipts derived from the leasing of the
Leased Facilities by the Issuer to the Lessee pursuant to the Lease Agreement or
the sale of the Leased Facilities and are additionally secured by the Guaranty
Agreement. The Bonds do not now and shall never constitute an indebtedness or
pledge of the general credit of the Issuer, the Parish of St. Xxxx, the State of
Louisiana, or any political subdivision of said State, within the meaning of any
constitutional or statutory limitation of indebtedness. The rental payments or
payments under the Guaranty Agreement sufficient for the prompt payment when due
of the interest on and principal or premium, if any, of the Bonds, are to be
paid directly to the Trustee by the Lessee for the account of the Issuer and
deposited in a fund created by the Issuer and designated "Taxable Revenue Bond
Fund -- Xxxxxx Aluminum, L.L.C. Project", and have been duly pledged for that
purpose under the Indenture to secure payment of such principal or premium, if
any, and interest.
The holder of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any event of default under the Indenture, or to
institute, appear in or defend any suit or proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in
the manner and with the effect set forth in the Indenture, the principal of all
of the Bonds issued under the Indenture and then outstanding may become or may
be declared due and payable before the stated maturity thereof, together with
interest accrued thereon. Modifications or alterations of the Indenture, or any
supplements thereto, may be made only to the extent and in the circumstances
permitted by the Indenture.
It is hereby certified, recited and declared that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and the issuance of this Bond do exist,
have happened and have been performed in due time, form and manner as required
by law; and that the issuance of this Bond and the issue of which it forms a
part, together with all other obligations of the Issuer, does not exceed or
violate any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, The Industrial Development Board of the Parish of St.
Xxxx, Louisiana, Inc. has caused this Bond to be executed in its name by the
manual or facsimile signature of its Vice President and its seal or facsimile
thereof to be hereunto affixed, impressed, imprinted or otherwise reproduced
hereon, and attested by the manual or facsimile signature of its
Secretary-Treasurer, all as of the date first set forth above.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE PARISH OF ST. XXXX, LOUISIANA, INC.
By: /s/ Xxxxx Xxxxx
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Vice President
ATTEST:
By: /s/ Xxxxx X. Xxxx
------------------------------------
Secretary-Treasurer
(SEAL)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond represents the entire issue of Bonds described in the
within-mentioned Trust Indenture.
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N. A., as Trustee
By: /s/ Xxxxxxxxx Xxxx
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Date of Authentication: July 14, 2003 Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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Please Insert Social Security
or other Identifying Number of Assignee
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the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints
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---------------------------------------------- attorney or agent to transfer the
within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
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NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within Bond
in every particular, without alteration
or enlargement or any change whatever.
SCHEDULE A
The Industrial Development Board
of the Parish of St. Xxxx, Louisiana, Inc.
Taxable Revenue Bonds
(Xxxxxx Aluminum, L.L.C. Project)
Series 2003
Principal Payments made prior to maturity.
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Principal Pay- Amount Principal Amount Date Signature of Authorized
ment Date Due Actually Paid Paid Official and Title
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