Exhibit 10.4
TRUST INDENTURE
Dated as of November 1, 1997
between
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
and
FIRST NATIONAL BANK OF COMMERCE, as Trustee
TRUST INDENTURE
DATED AS OF NOVEMBER 1, 1997
BETWEEN
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
AND
FIRST NATIONAL BANK OF COMMERCE, AS TRUSTEE
ARTICLE I: INTRODUCTION AND DEFINITIONS
Section 1.01. Description of the Indenture and the Parties.
This Trust Indenture (as amended or supplemented from time to
time as permitted hereby, the "Indenture"), dated as of November
1, 1997, executed by and between the LAKE CHARLES HARBOR AND
TERMINAL DISTRICT (the "Issuer"), a governmental agency and body
politic and corporate, created as a deep water port of the State
of Louisiana, pursuant to and functioning under the Constitution
and laws of the State of Louisiana, including particularly Part
II of Chapter I of Title 34 of the Louisiana Revised Statutes of
1950, as amended, and FIRST NATIONAL BANK OF COMMERCE, a national
banking association, having its principal corporate trust office
in the City of New Orleans, Louisiana, as Trustee (the
"Trustee").
In consideration of the mutual promises contained in this
Indenture, the rights conferred and the obligations assumed
hereby, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Issuer and the Trustee agree,
assign, covenant, grant, pledge, promise, represent and warrant
as set forth herein for their own benefit and for the benefit of
the Bondholders.
Section 1.02. Definitions.
(a) Words. In addition to terms defined elsewhere herein,
the following terms have the following meanings in this Indenture
unless the context otherwise requires:
"Act" means, collectively, Part II of Chapter 1 of
Title 34, Part XII, Chapter 4 and Chapter 13 of Title 39 of
the Louisiana Revised Statutes of 1950, as amended, and
Article VI, Sections 21, 43 and 44 of the Constitution of
the State of Louisiana of 1974, as amended, and other
constitutional and statutory authority.
"Authorized Denominations" means (i) with respect to
Bonds in the Multiannual Mode, $5,000 or any integral
multiple thereof, (ii) with respect to Bonds in the Flexible
Mode, $100,000 or any integral multiple of $1,000 in excess
of $100,000 and (iii) with respect to Bonds in the Daily
Mode and the Weekly Mode, $100,000 or any integral multiple
thereof, and, as necessary to total the outstanding
principal amount of the Bonds, a single bond in the
denomination of $100,000 and any integral multiple of
$5,000.
"Bank" means an issuer of a Credit Facility.
"Beneficial Owners" has the meaning set forth in
Section 3.01(b)(ii).
"BMA Municipal Index" means the Bond Market Association
Municipal Index, as of the most recent date for which such
index was published or such other weekly, high-grade index
comprised of seven-day, tax-exempt, variable rate, demand
notes produced by Municipal Market Data, Inc., or its
successor, or as otherwise designated by the Bond Market
Association.
"Board" or "Board of Commissioners" means the lawfully
qualified Board of the Issuer.
"Bond Counsel" means an attorney or firm of attorneys
of recognized standing in the field of public finance law
relating to revenue bonds, selected by the Issuer and
satisfactory to the Trustee and the Company.
"Bondholders," "holders," "owners" or words of similar
import means the registered owners of the Bonds from time to
time as shown in the books kept by the Paying Agent as bond
registrar and transfer agent.
"Bondholder Election Notice" means the notice required
to be given to the Paying Agent by a Bondholder of the
election of such holder to tender Bonds bearing interest at
a Daily Rate or a Weekly Rate, as such notice is described
in the forms of the Daily Mode Bond and the Weekly Mode Bond
in Sections 3.01(a)(iii) and 3.01(a)(iv), respectively.
"Bond Resolution" means, collectively, the resolution
of the Board adopted on October 9, 1997, and the resolution
of the Board adopted on November 10, 1997, authorizing the
issuance of the Bonds together with any supplemental
resolutions or amendments to such resolutions.
"Bonds" means the Lake Charles Harbor and Terminal
District Port Improvement Revenue Bonds (Global Industries,
Ltd. Project) Series 1997 authorized by the Bond Resolution
and issued pursuant hereto, as well as all substitute or
replacement Bonds issued pursuant hereto, and the term
"Bond" shall mean any of the Bonds.
"Book-Entry System" means the system maintained by the
Securities Depository described in Section 3.01(b)(ii).
"Business Day" means a day (i) on which banking
institutions in any city in which an office of the Bank, if
any, is located if drawings under a Credit Facility may be
required to be made from such office, in New Orleans,
Louisiana or in any of the cities in which the principal
corporate trust offices of the Trustee and the Paying Agent
are located are not required or authorized to remain closed
and (ii) on which the New York Stock Exchange is not closed.
"Code" means the provisions of the Internal Revenue
Code of 1986 or the comparable provisions of any subsequent
federal income tax laws of the United States in effect at
any given date.
"Company" means Global Industries, Ltd., a corporation
organized and existing under the laws of the State of
Louisiana and its successors and assigns as permitted under
the Facilities Agreement.
"Company Affiliate" means, for the purposes of this
Indenture, the Issuer, the Company and each Person
controlling, controlled by or under common control with, or
acting as a guarantor of, the Company.
"Company Bond" means any Bond registered in the name of
the Company pursuant to Sections 3.06(e) and 3.10(a).
"Company Representative" means the person or persons at
the time designated to act on behalf of the Company in a
written certificate (or any alternate or alternates at the
time so designated) furnished to the Trustee, containing the
specimen signature of such person or persons and signed on
behalf of the Company by its Chairman, President, or any
Vice President, or any authorized employee of the Company.
Such certificate may designate an alternate or alternates.
The Company Representative may be an employee of the Company
or a Company Affiliate.
"Construction Fund" means the segregated fund or
accounts thereof into which the proceeds from the sale and
delivery of the Bonds will be deposited as provided in the
Bond Resolution and in Section 3.02 of this Indenture.
"Conversion Date" means the date on which a new Mode
becomes effective with respect to a Bond, and with respect
to a Bond in the Multiannual Mode, the date on which a new
Rate Period becomes effective.
"Cost of Construction" means all costs incurred by the
Issuer or the Company with respect to the acquisition,
construction and improvement of the Facilities, including
but not limited to, the following items:
(i) obligations incurred or assumed for labor,
materials and equipment (including obligations payable
to the Company for expenditures made or costs incurred
by the Company);
(ii) costs of any bonds and insurance deemed
necessary or appropriate by the Company;
(iii) costs of engineering services, including
the costs incurred or assumed for preliminary design
and development, surveys, estimates and plans and
specifications, and for supervising construction and
performing all other duties required in connection with
the construction, acquisition and improvement of the
Facilities;
(iv) costs which the Company shall be
required to pay under the terms of any contract or
contracts in connection with the construction,
acquisition and improvement of the Facilities;
(v) sums required to reimburse the Company
for advances made for any of the above items, and for
any other costs (including a portion of the interest
costs of general Company borrowings) incurred for work
done or caused to be done by the Company which are
properly chargeable to the Facilities;
(vi) interest on the Bonds, and any other
bonds issued by the Issuer to finance the acquisition,
construction and improvement of the Facilities,
actually paid during or attributable to the period of
construction of the Facilities and for a period of one
year after completion of construction (which the Issuer
has found to be a reasonable period);
(vii) to the extent authorized by the Act, costs
of all other items related to the acquisition,
construction and improvement of the Facilities; and
(viii) all Costs of Issuance and other financing
costs and fees to be paid during the period of
construction.
"Costs of Issuance" means all costs and expenses
incurred by the Issuer or the Company in connection with the
issuance and sale of the Bonds, including without limitation
(i) fees and expenses of accountants, attorneys, engineers,
underwriters (whether paid as a fee or a discount) and
financial advisors, (ii) materials, supplies and printing
and engraving costs, (iii) recording and filing fees, (iv)
rating agency fees, (v) initial fees and expenses of any
Trustee and Paying Agent, and (vi) the Issuer's
administrative and overhead expenses as provided for in the
Facilities Agreement.
"Credit Facility" means any irrevocable transferable
letter of credit or other credit enhancement facility
delivered to the Trustee or the Paying Agent from time to
time securing the Bonds in accordance with the terms
thereof; provided that a policy of insurance securing the
timely payment of Bonds at maturity or upon mandatory
sinking fund redemption shall not constitute a Credit
Facility.
"Daily Mode" has the meaning set forth in the form of
Daily Bonds in Section 3.01(a)(iii).
"Daily Rate" means a rate or rates of interest borne by
a Bond while it is in the Daily Mode.
"Debt Service Fund" means the fund and the accounts
thereof established pursuant to Section 3.04 of this
Indenture.
"Default" has the meaning given such term in
Section 6.01.
"Delivery Date" means, with respect to a Bond tendered
for purchase, the Purchase Date or any subsequent Business
Day on which such Bond is delivered to the Paying Agent as
provided in the forms of Flexible, Daily, Weekly and
Multiannual Bonds in Section 3.01(a).
"Effective Date" means the date on which a new Rate
Period for a Bond takes effect.
"Eligible Funds" means (i) amounts drawn on any Credit
Facility; (ii) other amounts paid to the Trustee or the
Paying Agent pursuant to this Indenture which have been held
by the Trustee or the Paying Agent, as the case may be, in
trust for a period of at least 123 consecutive days during
which no Event of Bankruptcy has occurred; (iii) earnings on
amounts qualifying as Eligible Funds under clause (i) or
(ii) above; and (iv) other amounts which if applied to the
payment of the Bonds would not, in the opinion of nationally
recognized counsel experienced in bankruptcy matters
selected by the Company and satisfactory to the Issuer, the
Trustee, be subject to avoidance as a preference under the
United States Bankruptcy Code upon an Event of Bankruptcy.
The Trustee or the Paying Agent, as the case may be, shall
maintain records of Eligible Funds held by it.
"Event of Bankruptcy" means the filing of a petition in
bankruptcy or the commencement of a proceeding under the
United States Bankruptcy Code or any other applicable law
concerning insolvency, reorganization or bankruptcy by or
against the Issuer or the Company as debtor.
"Event of Default" has the meaning given such term in
Section 6.01.
"Expiration Date" means the Stated Expiration Date of a
Credit Facility, as such date may be extended from time to
time by the Bank, or the date on which a Credit Facility is
terminated or released in accordance with Section 3.15,
including by reason of its substitution or replacement or
its termination by the Company.
"Facilities" means the facilities financed with
proceeds of the Bonds as described in Exhibit A to the
Facilities Agreement as amended from time to time as
provided therein.
"Facilities Agreement" means the Facilities
Agreement, dated as of November 1, 1997, by and
between the Issuer and the Company, and all
amendments and supplements thereto.
"Facilities Payment" means each payment, other than
payment in respect of Purchase Price, required to be paid by
the Company with respect to the Bonds, including the
principal of, redemption premium, if any, and interest on
the Bonds, and all fees and expenses of the Trustee and the
Paying Agent, together with any other payments required by
the Bond Resolution, the Facilities Agreement or this
Indenture.
"Flexible Mode" has the meaning set forth in the form
of Flexible Bonds in Section 3.01(a)(i).
"Flexible Rate" means a rate or rates of interest borne
by a Bond while it is in the Flexible Mode.
"Government Obligations" means direct obligations of
the United States of America, including obligations the full
and timely payment of principal of and interest on which are
unconditionally guaranteed by the United States of America,
and which are noncallable and not subject to prepayment and
which at the time of investment are legal investments under
the laws of Louisiana for the money proposed to be invested
therein.
Except in the forms of the Bonds in Section 3.01,
"hereby," "herein," "hereof" or "hereunder" refer to this
Indenture as a whole rather than the particular section,
subsection, paragraph, subparagraph, clause or subclause in
which the word appears; and in each form of Bond, such words
refer to such Bond as a whole.
"Indenture" means this Trust Indenture as hereafter
amended or supplemented from time to time as permitted
hereby.
"Issuer" means the Lake Charles Harbor and Terminal
District, a governmental agency and body politic and
corporate of the State of Louisiana.
"Issuer Representative" means the Executive Director of
the Issuer, or such other person as the Board shall
designate.
"Letter of Credit" means a Credit Facility for the
Bonds in the form of a letter of credit and shall initially
mean the irrevocable transferable letter of credit No. S-
2172 with respect to the Bonds, issued by Bank One,
Louisiana, National Association under a Reimbursement
Agreement dated as of November 1, 1997, between the Company
and said bank.
"Maximum Interest Rate" means the maximum rate of
interest allowed by Chapter 13 of Title 39 of the Louisiana
Revised Statutes of 1950, as amended, or any applicable law
of the United States of America permitting a higher maximum
nonusurious rate that preempts such statute, which could
lawfully be contracted for, charged or received. In
addition, for purposes of determining whether any payment in
respect of the Bonds that is deemed to be interest is
usurious, all such sums that are paid or agreed to be paid
for the use, forbearance or detention of money shall, to the
extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such Bonds.
The foregoing notwithstanding, no Bond shall ever bear
interest at a stated interest rate in excess of the lesser
of (i) the interest rate per annum used to determine the
interest coverage under the Credit Facility or (ii) 15% per
annum.
"Mode" means the manner in which the interest rates on
the Bonds are set and includes the Flexible Mode, the Daily
Mode, the Weekly Mode and the Multiannual Mode.
"Moody's" means Moody's Investors Service, Inc.
"Multiannual Mode" means the Mode in which the interest
rate on the Bonds is fixed for periods of not less than 365
days as designated by the Company as described in the form
of Multiannual Bonds in Section 3.01(a)(v).
"Multiannual Rate" means the rate of interest borne by
a Bond while it is in the Multiannual Mode.
"Outstanding," when used to modify Bonds, refers to
Bonds issued, authenticated and delivered under this
Indenture, excluding: (i) Bonds which have been exchanged
or replaced or otherwise surrendered for cancellation; (ii)
Bonds which have been paid; (iii) Bonds which have become
due and for the payment of which moneys have been duly
provided; (iv) Bonds deemed tendered for purchase and not
delivered to the Paying Agent on the Purchase Date, provided
sufficient funds for payment of the Purchase Price are on
deposit with the Paying Agent; and (v) Bonds with respect to
which this Indenture has been defeased pursuant to
Section 2.04.
"Paying Agent" means First National Bank of Commerce,
New Orleans, Louisiana, as Paying Agent under this
Indenture, or any successor or successors designated as such
from time to time pursuant to Section 3.11.
"Paying Agent Subaccount" has the meaning given such
term in Section 3.04(a).
"Permitted Investments" has the meaning given such term
in Section 3.13.
"Person" means any individual or entity recognized by
law.
"Pledged Bond" means any Bond purchased with funds
provided by a Credit Facility which is registered in the
name of the Bank or its designee pursuant to Section 3.10.
"Purchase Date" means the date on which Bonds shall be
required to be purchased pursuant to a mandatory or optional
tender in accordance with the provisions in the forms of
Flexible, Daily, Weekly and Multiannual Rate Bonds in
Section 3.01(a).
"Purchase Price" means, with respect to any Bond, 100%
of the principal amount thereof and accrued interest to the
date established for purchase thereof.
"Rate Period" or "Period" means, when used with respect
to any particular rate of interest for a Bond in the
Flexible, Daily, Weekly or Multiannual Mode, the period
during which such rate of interest determined for such Bond
will remain in effect as described herein.
"Record date" means the date for which the holder of a
Bond is fixed for purposes of payment, as set forth in the
forms of the Bonds in Section 3.01(a).
"Regulations" means the Income Tax Regulations
promulgated pursuant to the Internal Revenue Code.
"Reimbursement Agreement" means, with respect to a
Credit Facility, any agreement providing for reimbursement
to the Bank by the Company for amounts paid by the Bank
under the Credit Facility.
"Remarketing Agent" means Morgan Stanley & Co.
Incorporated, or an affiliate thereof, and any successor
Remarketing Agent appointed from time to time pursuant to
Section 3.12.
"Responsible Officer" shall mean an officer of the
Paying Agent assigned to the Paying Agent's corporate trust
department, including, without limitation, any Vice
President, any Assistant Vice President, any Assistant
Treasurer, Trust Officer or any other officer performing
functions similar to those performed by the persons who at
the time shall be such officers and also means any other
officer of the Paying Agent to whom any corporate trust
matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities Depository" means a "clearing agency"
registered under Section 17A of the Securities Exchange Act
of 1934, as amended, including The Depository Trust Company,
New York, New York, or its nominee, and the successors and
assigns of any such entity.
"S&P" means Standard & Poor's Ratings Service (a
division of The McGraw-Hill Companies, Inc.).
"Stated Expiration Date" means the scheduled date of
termination of a Credit Facility, as set forth therein.
"Tax Letter of Representation" means the tax letter of
representation executed by the Company in connection with
the original issuance of the Bonds and delivered to the
Trustee.
"Tendered Bond" means any Bond tendered or deemed
tendered for purchase pursuant to Sections 3.01(c)(iii),
3.01(d)(iii), 3.01(d)(iv), 3.01(e)(iii), 3.01(e)(iv) or
3.01(f)(iii).
"Trustee" means First National Bank of Commerce, New
Orleans, Louisiana, as trustee under this Indenture and its
successors in such capacity.
"Weekly Mode" has the meaning set forth in the form of
Weekly Bonds in Section 3.01(a)(iv).
"Weekly Rate" means a rate or rates of interest borne
by a Bond while it is in the Weekly Mode.
(b) Number and Gender. Wherever appropriate (1) the
singular and plural forms of words and (2) words of different
gender shall, within those respective classifications, be deemed
interchangeable.
(c) Use of Examples. When a condition, class, category,
circumstance or other concept is described in general terms
herein and a list of possible examples of components of what has
been described generally is associated with that description, and
regardless of whether the words "include" or "including" or the
like are also used, the listing shall be deemed illustrative only
and shall not be construed as excluding other possible examples
or components or as otherwise limiting the generality of the
description in any way.
(d) References to Time. All references to events required
to occur by a specific time shall mean the prevailing Central
time in the State of Louisiana.
ARTICLE II: ISSUANCE OF BONDS; THE ASSIGNMENT AND PLEDGE;
DEFEASANCE OF THE INDENTURE
Section 2.01. Issuance of Bonds. The Issuer, by the
adoption of the Bond Resolution, has authorized the issuance of
the Bonds pursuant to the Act to finance the Costs of
Construction, as hereinafter provided.
Section 2.02. Assignment and Pledge of the Issuer. The
Issuer, for consideration paid as hereinabove acknowledged,
hereby irrevocably assigns and pledges to the Trustee in trust
for the security of the Bondholders and the Bank upon the terms
hereof all the Issuer's right, title and interest in (i) the
Facilities Payments, (ii) all moneys and securities held by the
Trustee for deposit in, or deposited in, the Debt Service Fund
and the Construction Fund and investment earnings thereon, and
(iii) any collateral security for, and all proceeds of, any of
the foregoing. The Trustee shall hold (a) all the rights, titles
and interests received under this Section and (b) all revenues
(exclusive of funds to which the Trustee is entitled in its own
right, or as Paying Agent, as fees, reimbursement, indemnity or
otherwise) received from the Company or derived from the exercise
of the Issuer's powers hereunder in trust for the security of the
Bondholders in accordance with the provisions hereof and the Bank
for amounts advanced under the Credit Facility.
Section 2.03. Further Assurances. The Issuer shall from
time to time execute, deliver and record and file such
instruments as are necessary to confirm, perfect or maintain the
security created hereby and the assignment and pledge of rights
hereunder and shall provide a copy of each record of filing with
the Trustee.
Section 2.04. Defeasance.
(a) Payment, Advance Funding and Defeasance. Any Bond
(except Bonds in the Daily Mode or the Weekly Mode) shall be
deemed to be paid within the meaning of this Section 2.04 when
payment of the principal of, redemption premium, if any, on such
Bond, plus interest thereon to the due date thereof (whether such
due date be by reason of maturity, redemption or otherwise;
provided that such provision for payment shall be made in a
manner sufficient to redeem such Bonds on or before the next
mandatory tender date of such Bonds to be defeased), either (i)
shall have been made or caused to be made in accordance with the
terms thereof, or (ii) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (1) money sufficient to
make such payment or (2) Government Obligations, in each case,
certified by an independent public accounting firm of national
reputation to be sufficient, in the case of money, or to mature
as to principal and interest in the case of Government
Obligations, in such amount and at such times as will insure the
availability, without reinvestment, of sufficient money to make
such payment, and all necessary and proper fees, compensation,
and expenses of the Trustee and the Paying Agent pertaining to
the Bonds with respect to which such deposit is made shall have
been paid or the payment thereof provided for to the satisfaction
of the Trustee and the Paying Agent; provided, however, that no
Bond secured by a Credit Facility shall be deemed to be paid
pursuant to clause (a)(ii) above unless and until the money so
deposited or used to purchase Government Obligations constitutes
Eligible Funds and an opinion is obtained and filed with S&P and
the Trustee from a firm of nationally recognized counsel
experienced in bankruptcy matters selected by the Company and
satisfactory to the Issuer to the effect that the payment of the
Bonds would not be subject to avoidance as a preference under the
United States Bankruptcy Code upon an Event of Bankruptcy. At
such time as a Bond shall be deemed to be paid hereunder, as
aforesaid, it shall no longer be secured by or entitled to the
benefits of this Indenture, except for the purposes of any such
payment from such money or Government Obligations. The Company
shall promptly give written notice to S&P of the defeasance of
all Outstanding Bonds and shall provide S&P with a copy of any
certified report prepared by the independent public accounting
firm of national reputation referred to above in connection with
a defeasance. No Bond tendered to the Paying Agent for payment
shall be remarketed hereunder after the defeasance thereof. Any
money deposited with the Trustee as provided in this Section 2.04
may at the written direction of the Company also be invested in
Government Obligations, maturing in the amounts and times as
hereinbefore set forth, and all income from all Government
Obligations in the hands of the Trustee pursuant to this
Section 2.04 which is not required for the payment of the Bonds,
the redemption premium, if any, and interest thereon, with
respect to which such money has been so deposited, shall be
turned over to the Company.
(b) Notice of Redemption. Notwithstanding the foregoing,
no deposit under clause (ii) of Section 2.04(a) shall be deemed a
payment of a Bond as aforesaid until, with respect to a Bond to
be redeemed prior to maturity, irrevocable written instructions
have been given to the Paying Agent by the Company, with a copy
to the Trustee, to give proper notice of redemption of such Bond
in accordance with the Indenture, and in any case until the
Company shall have given the Paying Agent, on forms satisfactory
to it, irrevocable instructions to notify, as soon as
practicable, the owner of the Bond that the deposit required by
clause (ii) of Section 2.04(a) has been made with the Trustee and
that said Bond is deemed to have been paid in accordance with
this Section 2.04, and stating the maturity or redemption date
upon which moneys are to be available for the payment of the
principal of, redemption premium, if any, and interest on such
Bond.
(c) Use of Moneys and Government Obligations Set Aside.
Notwithstanding anything contained elsewhere in this Indenture,
all money or Government Obligations set aside and held in trust
pursuant to the provisions of this Section 2.04 for the payment
of Bonds, the redemption premium, if any, and interest thereon,
shall be applied to and used solely for the payment of the
particular Bonds, the redemption premium, if any, and interest
thereon, with respect to which such money or Government
Obligations have been so set aside in trust.
(d) No Amendment. Notwithstanding anything contained
elsewhere in this Indenture, if money or Government Obligations
have been deposited or set aside with the Trustee pursuant to
this Section 2.04 for the payment of Bonds and such Bonds shall
not have in fact been actually paid in full, no amendment to the
provisions of this Section 2.04 shall be made without the consent
of the owner of each Bond affected thereby.
Section 2.05. Release of Indenture. If, when all Bonds
shall have become due and payable in accordance with their terms
or otherwise as provided in this Indenture or shall have been
duly called for redemption, and the whole amount of the
principal, redemption premium, if any, and the interest so due
and payable upon all of the Bonds then Outstanding (including,
specifically, the Pledged Bonds, if any) and the obligation of
the Company to the Bank in respect of amounts paid under the
Credit Facility shall be paid, or sufficient money (which, in the
case of Bonds secured by a Credit Facility, shall constitute
Eligible Funds) shall be held by the Trustee for such purposes,
and provision shall also be made for paying all other sums
payable hereunder and/or under the Facilities Agreement by the
Company then and in that case all right, title, and interest of
the Trustee in these presents and the estate and rights hereby
granted with respect to the Bonds shall thereupon cease,
determine, and become void, and the Trustee in such case shall
release this Indenture and shall execute such documents prepared
by and at the expense of the Company to evidence such release as
may be reasonably required by the Issuer and shall deliver any
surplus funds held by it to the Company; and thereupon this
Indenture shall terminate and be of no effect. Notwithstanding
the foregoing, the obligations under Article III in respect of
the payment provisions for the Bonds, the optional and mandatory
tender requirements, registration of transfer, exchange,
registration, discharge from registration and replacement of
Bonds shall survive the discharge of the lien of the Indenture.
Prior to the execution of any such documents in connection with
the satisfaction and discharge of the Indenture and prior to the
release of any liens granted hereunder, the Company shall deliver
to the Trustee a certificate and an opinion of counsel each
stating that all conditions precedent thereto have been complied
with.
ARTICLE III: THE BONDS
Section 3.01. The Bonds.
(a) Forms of Bonds. The Bonds shall be issued in
substantially the following forms for the four Modes:
(i) Form of Flexible Bond. The Bonds may be issued
in the Flexible Mode in substantially the form prescribed
below.
$__________ No. F-
ANY HOLDER HEREOF WHO FAILS TO DELIVER THIS BOND FOR PURCHASE AT
THE TIMES AND AT THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER
RIGHTS HEREUNDER EXCEPT THE RIGHT TO RECEIVE THE PURCHASE PRICE
HEREOF AND ACCRUED INTEREST UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD
THIS BOND AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
Port Improvement Revenue Bond
(Global Industries, Ltd. Project)
Series 1997
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST DUE: $
(on the Next Purchase Date)
INTEREST RATE:
(to the Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: ___________
MODE: Flexible
CUSIP:
THE OBLIGATION TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THIS BOND FROM THE SOURCES DESCRIBED BELOW IS SOLELY
AND EXCLUSIVELY A SPECIAL OBLIGATION OF THE LAKE CHARLES HARBOR
AND TERMINAL DISTRICT (THE "ISSUER"). THE BONDS DO NOT NOW AND
SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR A PLEDGE OF THE GENERAL
CREDIT OF THE ISSUER, THE STATE OF LOUISIANA, OR ANY POLITICAL
SUBDIVISION OF THE STATE OF LOUISIANA, WITHIN THE MEANING OF ANY
CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION OF INDEBTEDNESS.
NO OTHER PUBLIC ENTITY, INCLUDING THE STATE OF LOUISIANA, ANY
POLITICAL SUBDIVISION THEREOF OTHER THAN THE ISSUER, OR ANY OTHER
PUBLIC BODY, IS OBLIGATED, DIRECTLY, INDIRECTLY, CONTINGENTLY, OR
IN ANY OTHER MANNER, TO PAY SUCH PRINCIPAL, PREMIUM, OR INTEREST
FROM ANY SOURCE WHATSOEVER. THIS BOND SHALL NOT BE CONSIDERED A
GENERAL OBLIGATION OF THE BOARD OF COMMISSIONERS OF THE ISSUER,
THE ISSUER, OR THE STATE OF LOUISIANA. THE REGISTERED OWNER
HEREOF SHALL NEVER HAVE THE RIGHT TO DEMAND PAYMENT OF THIS BOND
OR THE INTEREST HEREON OUT OF ANY FUNDS RAISED OR TO BE RAISED BY
TAXATION OR FROM ANY OTHER FUNDS EXCEPT THE SOURCES DESCRIBED
BELOW, AND NO REPRESENTATION IS MADE HEREIN WITH RESPECT TO THE
ANTICIPATED SUFFICIENCY OF SUCH SOURCES. NO PHYSICAL PROPERTY IS
ENCUMBERED BY ANY LIEN OR SECURITY INTEREST FOR THE BENEFIT OF
THE REGISTERED OWNER OF THIS BOND.
The Issuer, for value received, promises to pay to the
REGISTERED OWNER, or registered assigns, but solely from the
moneys to be provided under the Indenture mentioned below, upon
presentation and surrender hereof, in lawful money of the United
States of America, the PRINCIPAL AMOUNT on the MATURITY DATE,
unless paid earlier as provided below, with interest from the
most recent Interest Payment Date, as defined below, to which
interest has been paid or duly provided for or, if no interest
has been paid, from the COMMENCEMENT DATE OF RATE PERIOD set
forth above, until paid in full, at the rates per annum described
below, payable on each Interest Payment Date, as defined below.
Interest shall be due on this bond on each Purchase Date (as
defined below) and on the MATURITY DATE (the "Interest Payment
Dates"). This bond shall bear interest at the INTEREST RATE set
forth above up to the NEXT PURCHASE DATE. Thereafter, the
Remarketing Agent (as defined below) shall redetermine the
Flexible Rate for each Rate Period (as defined below), which
shall be the rate of interest determined by the Remarketing Agent
designated as provided in the Indenture (herein, with its
successors, the "Remarketing Agent"), for each Rate Period (as
defined below) to be the lowest rate which in its judgment, on
the basis of prevailing financial market conditions, is necessary
on and as of the Effective Date, as defined below, to remarket
this bond in a secondary market transaction at a price equal to
the principal amount thereof, but not in excess of the Maximum
Interest Rate. The amount of interest due on any Interest
Payment Date shall be the amount of unpaid interest accrued on
this bond through the day preceding such Interest Payment Date.
It is hereby certified, recited, declared and covenanted
that this bond has been duly and validly authorized, issued and
delivered; that all acts, conditions and things required or
proper to be performed, exist and be done precedent to and in the
execution and delivery of the Indenture and in the authorization,
issuance and delivery of this bond do exist, have happened and
have been performed in due time, form and manner, as required by
law; that the issuance of this bond and the series of which it
forms a part does not exceed or violate any constitutional or
statutory limitation; that this bond is a special revenue
obligation of the Issuer, with the principal of and interest on
this bond being payable solely from (except to the extent payable
from amounts attributable to proceeds of the Bonds), and secured
solely by a lien on and pledge of, the revenues or payments
hereinafter described; and that this bond is one of a series of
Port Improvement Revenue Bonds (Global Industries, Ltd. Project)
Series 1997 (the "Bonds") issued in the aggregate principal
amount of $28,000,000 FOR THE PURPOSE OF PROVIDING A PORTION OF
THE COST OF THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN DOCK AND WHARF FACILITIES (THE "FACILITIES") TO BE LEASED
BY THE ISSUER TO GLOBAL INDUSTRIES, LTD. (THE "COMPANY") WITHIN
THE BOUNDARIES OF THE ISSUER, pursuant to and secured by a Trust
Indenture (the "Indenture") dated as of November 1, 1997 between
the Issuer and First National Bank of Commerce, as Trustee (the
"Trustee"). Pursuant to a Facilities Agreement (the "Facilities
Agreement") dated as of November 1, 1997 between the Company and
the Issuer, the Company has unconditionally agreed to make
Facilities Payments in the amounts necessary to pay the principal
of, premium, if any, and interest on the Bonds when due.
Reference is hereby made to the Facilities Agreement and the
Indenture for the provisions thereof with respect to the rights,
limitations of rights, duties, obligations and immunities of the
Company, the Issuer, the Trustee, the Paying Agent, and the
Bondholders, including the order of payments in the event of
insufficient funds, the disposition of unclaimed moneys held by
the Trustee and restrictions on the rights of owners of the Bonds
to bring suit. The Facilities Agreement and the Indenture may be
amended to the extent and in the manner provided therein. Copies
of the Facilities Agreement and the Indenture are available for
inspection at the corporate trust office of the Trustee.
[The following paragraph, completed or altered as necessary,
is to be inserted in Bonds which are supported by a Credit
Facility.]
The Purchase Price and principal of and interest on this
bond are also payable from moneys drawn by the Paying Agent on
an irrevocable letter of credit for the Bonds (together with any
extensions and renewals thereof, the "Letter of Credit") issued
by the Bank (as defined in the Indenture) in the initial
aggregate stated amount of $_______________ pursuant to the terms
of a Reimbursement Agreement dated as of ______________ (the
"Reimbursement Agreement") by and between the Company and the
Bank. The Letter of Credit initially expires on
______________________ but may be terminated earlier upon the
occurrence of certain events set forth in the Indenture and the
Reimbursement Agreement or extended as provided in the
Reimbursement Agreement. The Company may substitute for the
Letter of Credit in whole or in part, a new letter of credit or
other credit enhancement facility (together with the Letter of
Credit, a "Credit Facility") as provided in the Indenture and the
Reimbursement Agreement.
The principal amount of this bond together with accrued
interest may become or be declared immediately due and payable in
the manner and with the effect provided in the Indenture.
Unless otherwise defined herein, capitalized terms used in
this bond shall have the meaning given them in the Indenture.
The following terms are defined as follows:
"Business Day" means a day (i) on which banking institutions
[in any city in which an office of the Bank is located if
drawings under a Credit Facility may be required to be made from
such office,]* in New Orleans, Louisiana or in any of the cities
in which the principal corporate trust offices of the Trustee and
the Paying Agent are located are not required or authorized to
remain closed and (ii) on which the New York Stock Exchange is
not closed.
*Bracketed language to be added to Bonds supported by a
Credit Facility.
"Effective Date" means the date on which a new Rate Period
for a Bond takes effect.
"Mode" means the manner in which the interest rates on the
Bonds are set and includes the Flexible Mode, the Daily Mode, the
Weekly Mode and the Multiannual Mode.
"Purchase Date" means the date on which this bond shall be
required to be purchased pursuant to a mandatory tender in
accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to
any particular rate of interest for a Bond, the period during
which such rate of interest determined for such Bond will remain
in effect as described herein.
At the option of the Company and upon certain conditions
provided for in the Indenture described below, all or a portion
of the Bonds (a) may be converted or reconverted from time to
time to or from the Daily Mode, the Weekly Mode or the
Multiannual Mode, which means that the Rate Period is,
respectively, one day, one week or not less than 365 days and (b)
may be converted or reconverted from time to time to or from the
Flexible Mode.
Conversions of this bond to any other Mode may take place
only on an Effective Date. Conversion of this bond to any other
Mode shall be subject to certain conditions set forth in the
Indenture. In the event that the conditions for a proposed
conversion to a new Mode are not met (i) such new Mode shall not
take effect on the proposed conversion date, notwithstanding any
prior notice to the Bondholders of such conversion, and (ii) this
bond shall automatically convert to the Daily Mode until a new
Mode is determined in accordance with the Indenture. In no
event shall the failure of this bond to be converted to a new
Mode be deemed to be a Default or an Event of Default under the
Indenture as long as the Purchase Price is made available on the
failed conversion date to holders of all Bonds that were to have
been converted.
The interest rate for this bond in the Flexible Mode will be
determined by the Remarketing Agent and will remain in effect
from and including the Effective Date of the Rate Period selected
for that Bond by the Remarketing Agent through the last date
thereof. Bonds in the Flexible Mode may have successive Rate
Periods of any duration up to and including 270 days each and
ending on a day preceding a Business Day and any Bond may bear
interest at a rate and for a period different from any other
Bond.
In the event that the Remarketing Agent no longer
determines, or fails to determine when required, any Rate Period
or any Flexible Rate for any Bonds, or, if for any reason such
manner of determination shall be determined to be invalid or
unenforceable, the Rate Period for any such Bond shall be deemed
to be Daily Rate Periods until a new Mode is determined in
accordance with the Indenture, and the Daily Rate shall be
determined by reference to a published index as provided in the
Indenture.
This bond is subject to mandatory tender for purchase and
shall be purchased on the NEXT PURCHASE DATE set forth above at a
price of 100% of the principal amount hereof (the "Purchase
Price"). THE HOLDER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES
TO SELL AND SURRENDER THIS BOND IN ACCORDANCE WITH THE PROVISIONS
OF THE INDENTURE AND, ON SUCH PURCHASE DATE, TO SURRENDER THIS
BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE PRICE AND
ACCRUED INTEREST. All deliveries of tendered Bonds, including
deliveries of Bonds subject to mandatory tender, shall be made to
the Paying Agent at 210 Barrone Street-Basement Level, New
Orleans, Louisiana 70112, or such other address specified in
writing by the Paying Agent to the Bondholders. The Purchase
Price of this bond shall be paid only upon surrender of this bond
to the Paying Agent as provided herein. From and after such
Purchase Date, no further interest shall be payable to the
REGISTERED OWNER provided that there are sufficient funds
available on such Purchase Date to pay the Purchase Price.
Each determination and redetermination of the Flexible Rate
shall be conclusive and binding on the Issuer, the Trustee, the
Paying Agent, the Bank, the Company and the Bondholders.
Interest shall be computed on this bond on the basis of a
365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any
unpaid principal will bear interest at the then effective rate
until paid or duly provided for.
The principal of and interest on this bond due on the
MATURITY DATE are payable when due by wire transfer of
immediately available funds within the continental United States
or at the option of the REGISTERED OWNER by check to the
REGISTERED OWNER hereof but only upon presentation and surrender
of this bond at the offices of First National Bank of Commerce,
New Orleans, Louisiana, as Paying Agent (with its successors in
such capacity, the "Paying Agent"). The Purchase Price of this
bond and accrued interest to the Purchase Date are payable in
immediately available funds by wire transfer within the
continental United States from the Paying Agent or at the option
of the REGISTERED OWNER by check to the REGISTERED OWNER at its
address shown on the registration books maintained by the Paying
Agent. Payment of the Purchase Price and accrued interest of
this bond to such owner shall be made on the Delivery Date, which
shall be the Purchase Date, or the day on which this bond is
presented and surrendered, if later than the Purchase Date, if
presentation and surrender of this bond is made prior to 12:00
noon, Central time, on the day of presentation and surrender and
is the next succeeding Business Day if this bond is delivered to
the Paying Agent after 12:00 noon, Central time on such day.
Overdue interest on this bond, or interest on overdue principal
is payable in immediately available funds by wire transfer within
the continental United States from the Paying Agent or at the
option of the REGISTERED OWNER by check to the REGISTERED OWNER,
determined as of the close of business on the applicable special
record date as determined by the Trustee, at its address as shown
on the registration books maintained by the Paying Agent. The
special record date may be not more than thirty (30) days before
the date set for payment. The Paying Agent will mail notice of a
special record date to the Bondholders at least ten (10) days
before the special record date. The Paying Agent will promptly
certify to the Issuer, the Trustee and the Remarketing Agent that
it has mailed such notice to all Bondholders, and such
certificate will be conclusive evidence that notice was given in
the manner required hereby.
Any notice required by this bond to be given to Bondholders
shall be effective when mailed, notwithstanding when or if such
notice is received by any Bondholder.
This bond is subject to mandatory redemption, in whole
(except as provided below), within 180 days after a Determination
of Taxability, as hereinafter defined, at a redemption price
equal to the principal amount thereof plus accrued interest to
the redemption date, but without premium. "Determination of
Taxability" means a final determination by any court of competent
jurisdiction in the United States, or a final action of the
Internal Revenue Service, in either case in a proceeding of which
the Company has received timely notice and in which the Company
has had sufficient opportunity to participate, to the effect
that, as a result of the failure of the Company to observe or
perform any covenant, agreement, representation, or warranty in
the Facilities Agreement, the interest on the Bonds is includable
in the gross income (for federal income tax purposes) of the
holder thereof (except for any holder who is a "substantial user"
of the Facilities or a "related person" as those terms are used
and defined in the Code).
Upon the occurrence of a Determination of Taxability, this
bond shall be redeemed in whole as provided above, unless, in the
opinion of a nationally recognized bond counsel ("Bond Counsel"),
redemption of a portion of the Bonds outstanding would have the
result that interest payable on the remaining Bonds outstanding
after the redemption would not be includable in the gross income
(for federal income tax purposes) of holders thereof (except for
any holder who is a "substantial user" of the Facilities or a
"related person" as those terms are used and defined in the
Code), in which event only such portion shall be required to be
redeemed. Any such partial redemption shall be made within 180
days following the Determination of Taxability, at a redemption
price equal to the principal amount thereof plus accrued interest
to the redemption date, but without premium, at least in such
aggregate amount as is deemed necessary by Bond Counsel to cause
the interest on the remaining outstanding Bonds not to be
includable in gross income, as described above.
If this bond is redeemed as provided above in accordance
with the terms of the Indenture, then the failure by the Company
to observe or perform a covenant, agreement, representation, or
warranty in the Facilities Agreement which results in a
Determination of Taxability shall not constitute an Event of
Default under the Indenture or the Facilities Agreement, and
payment of the redemption price specified above shall constitute
full and complete payment and satisfaction to the holder of this
bond for any claims, damages, costs, or expenses arising out of
or based upon such failure by the Company.
If less than all of this bond is to be called for
redemption, the portion thereof to be redeemed shall be selected
as provided in the Indenture. If less than all of the principal
amount of this bond is to be redeemed, upon surrender of this
bond to the Paying Agent, there will be issued to the REGISTERED
OWNER, without charge, a new bond or, at the option of the
REGISTERED OWNER, bonds for the unredeemed principal amount.
This bond is subject to optional redemption in whole or in
part at the direction of the Company on any day when this bond is
subject to mandatory tender by the REGISTERED OWNER at a
redemption price of par.
At least 30 days prior to the date selected for the
redemption of any of the Bonds prior to their scheduled maturity,
the Paying Agent shall cause a written notice of such redemption
to be mailed by the Paying Agent, postage prepaid, not less than
30 days prior to the date selected for redemption, to each
REGISTERED OWNER of the Bonds to be redeemed, addressed to such
REGISTERED OWNER at its address appearing on the registration
books maintained by the Paying Agent and to major securities
depositories, national bond rating agencies and bond information
services as at the time customarily receive such notices; but the
failure of the REGISTERED OWNER to receive, or any defect therein
or in the mailing thereof, shall not affect the redemption of
such Bonds. Such notice of redemption shall identify the Bonds
to be redeemed, the date selected for such redemption, the places
of payment of the redemption price of the Bonds which are to be
so redeemed and the redemption price at which the Bonds will be
redeemed.
Notice of redemption having been duly mailed, this bond, or
the portion called for redemption, will become due and payable on
the redemption date at the applicable redemption price and, if
moneys for the redemption have been deposited with the Trustee,
then, from and after the date fixed for redemption, no interest
on this bond (or such portion) will accrue. The Paying Agent
will not be required to make an exchange or transfer of this bond
(i) if this bond (or any portion hereof) has been selected for
redemption or (ii) within forty-five (45) days prior to the date
fixed for redemption if this bond (or any portion hereof) is
eligible to be selected for redemption.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND IS
SUBJECT TO PURCHASE. IN EACH SUCH EVENT AND UPON DEPOSIT OF THE
PURCHASE PRICE WITH THE PAYING AGENT ON THE PURCHASE DATE, THIS
BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL CEASE TO BE
DEEMED TO BE OUTSTANDING UNDER THE INDENTURE, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED TO RECEIVE THE PURCHASE PRICE AND
ACCRUED INTEREST SO DEPOSITED WITH THE PAYING AGENT ONLY UPON
SURRENDER OF THIS BOND TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person
or by its attorney duly authorized in writing, at the office of
the Paying Agent, upon surrender of this bond to the Paying Agent
for cancellation. Upon the transfer, a new Bond or Bonds in
Authorized Denominations of the same aggregate principal amount
will be issued to the transferee at the same office. No transfer
will be effective unless effected by such surrender and reissue.
This bond may also be exchanged at the office of the Paying Agent
for a new Bond or Bonds in Authorized Denominations of the same
aggregate principal amount without transfer to a new registered
owner. Exchanges and transfers will be without expense to the
owner except for applicable taxes or other governmental charges,
if any.
Bonds in the Flexible Mode are issuable only in fully
registered form and shall be in Authorized Denominations of
$100,000 or any integral multiple of $1,000 in excess of
$100,000.
The Issuer, the Trustee, the Paying Agent and the Company
may treat the REGISTERED OWNER as the absolute owner of this bond
for all purposes, notwithstanding any notice to the contrary.
This bond will not be valid until the Certificate of
Authentication has been signed by the Trustee or its duly
appointed agent for such purpose.
IN WITNESS WHEREOF, this bond has been signed with the
manual or facsimile signature of the President of the Issuer, and
countersigned with the manual or facsimile signature of the
Secretary of the Issuer, and the official seal of the Issuer has
been duly impressed, or placed in facsimile, on this bond, all as
of the first day of November, 1997.
LAKE CHARLES HARBOR AND TERMINAL
DISTRICT
(Seal) By:
President, Board of Commissioners
By: _______________________________
Secretary, Board of Commissioners
Certificate of Authentication
This bond is one of the Bonds described in the Indenture.
FIRST NATIONAL BANK OF COMMERCE,
New Orleans, Louisiana,
as Trustee
Date of Authentication:
By:________________________________
Authorized Signatory
or
By: __________________________,
as agent of the Trustee
By:__________________________________
Authorized Signatory
Assignment
For value received the undersigned sells, assigns and
transfers this bond to
_________________________________________________________
(Name and Address of Assignee)
_________________________________________________________
_________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints________________________________,
attorney-in-fact, to transfer it on the books kept for
registration of the bond, with full power of
substitution.
Dated:
Signature Guaranteed:
_____________________________________________
Bank, Trust Company or Brokerage Firm
By: _____________________________________
Authorized Signatory
NOTICE: Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee and the Paying Agent, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Trustee or the Paying Agent in
addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of
1934, as amended.
The following abbreviations, when used in the inscription on
the face of this bond, shall be construed as though they were
written out in full according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety _______ Custodian_______
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act_____________________
(State)
Additional abbreviations may also be used though not set forth in
the list above.
(ii) [Reserved Section.]
(iii) Form of Daily Bond. The Bonds may be issued
in the Daily Mode in substantially the form prescribed
below.
$__________ No. D-
ANY HOLDER HEREOF WHO FAILS TO DELIVER THIS BOND FOR PURCHASE AT
THE TIMES AND AT THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER
RIGHTS HEREUNDER EXCEPT THE RIGHT TO RECEIVE THE PURCHASE PRICE
HEREOF AND ACCRUED INTEREST UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD
THIS BOND AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
Port Improvement Revenue Bond
(Global Industries, Ltd. Project)
Series 1997
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES:
(i) the first Business Day of each calendar month, and
(ii) the Maturity Date
MATURITY DATE: ____________
DATE OF THIS BOND:
(Date as of which Bonds of this series were initially
issued)
MODE: Daily
CUSIP:
THE OBLIGATION TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THIS BOND FROM THE SOURCES DESCRIBED BELOW IS SOLELY
AND EXCLUSIVELY A SPECIAL OBLIGATION OF THE LAKE CHARLES HARBOR
AND TERMINAL DISTRICT (THE "ISSUER"). THE BONDS DO NOT NOW AND
SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR A PLEDGE OF THE GENERAL
CREDIT OF THE ISSUER, THE STATE OF LOUISIANA, OR ANY POLITICAL
SUBDIVISION OF THE STATE OF LOUISIANA, WITHIN THE MEANING OF ANY
CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION OF INDEBTEDNESS.
NO OTHER PUBLIC ENTITY, INCLUDING THE STATE OF LOUISIANA, ANY
POLITICAL SUBDIVISION THEREOF OTHER THAN THE ISSUER, OR ANY OTHER
PUBLIC BODY, IS OBLIGATED, DIRECTLY, INDIRECTLY, CONTINGENTLY, OR
IN ANY OTHER MANNER, TO PAY SUCH PRINCIPAL, PREMIUM, OR INTEREST
FROM ANY SOURCE WHATSOEVER. THIS BOND SHALL NOT BE CONSIDERED A
GENERAL OBLIGATION OF THE BOARD OF COMMISSIONERS OF THE ISSUER,
THE ISSUER, OR THE STATE OF LOUISIANA. THE REGISTERED OWNER
HEREOF SHALL NEVER HAVE THE RIGHT TO DEMAND PAYMENT OF THIS BOND
OR THE INTEREST HEREON OUT OF ANY FUNDS RAISED OR TO BE RAISED BY
TAXATION OR FROM ANY OTHER FUNDS EXCEPT THE SOURCES DESCRIBED
BELOW, AND NO REPRESENTATION IS MADE HEREIN WITH RESPECT TO THE
ANTICIPATED SUFFICIENCY OF SUCH SOURCES. NO PHYSICAL PROPERTY IS
ENCUMBERED BY ANY LIEN OR SECURITY INTEREST FOR THE BENEFIT OF
THE REGISTERED OWNER OF THIS BOND.
The Issuer, for value received, promises to pay to the
REGISTERED OWNER, or registered assigns, but solely from the
moneys to be provided under the Indenture mentioned below, upon
presentation and surrender hereof, in lawful money of the United
States of America, the PRINCIPAL AMOUNT on the MATURITY DATE,
unless paid earlier as provided below, with interest from the
most recent INTEREST PAYMENT DATE to which interest has been paid
or duly provided for or, if no interest has been paid, from the
DATE OF THIS BOND set forth above, until paid in full, at the
rates per annum described below, payable on each INTEREST PAYMENT
DATE. The Daily Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the
Indenture (herein, with its successors, the "Remarketing Agent"),
for each Rate Period (as defined below) to be the lowest rate
which in its judgment, on the basis of prevailing financial
market conditions, would permit the sale of the Bonds (as defined
below) in the Daily Mode at par plus accrued interest on and as
of the Effective Date, as defined below, but not in excess of the
Maximum Interest Rate. The Remarketing Agent shall determine the
initial Daily Rate on or before the date of issue in or of
conversion to the Daily Mode, which rate shall remain in effect
as provided in the Indenture. Thereafter, the Remarketing Agent
shall redetermine the Daily Rate for each Rate Period as provided
below. The amount of interest due on any INTEREST PAYMENT DATE
shall be the amount of unpaid interest accrued on this bond
through the day preceding such INTEREST PAYMENT DATE.
It is hereby certified, recited, declared and covenanted
that this bond has been duly and validly authorized, issued and
delivered; that all acts, conditions and things required or
proper to be performed, exist and be done precedent to and in the
execution and delivery of the Indenture and in the authorization,
issuance and delivery of this bond do exist, have happened and
have been performed in due time, form and manner as required by
law; that the issuance of this Bond and the series of which it
forms a part does not exceed or violate any constitutional or
statutory limitation; that this bond is a special revenue
obligation of the Issuer, with the principal of and interest on
this bond being payable solely from (except to the extent payable
from amounts attributable to proceeds of the Bonds), and secured
solely by a lien on and pledge of, the revenues or payments
hereinafter described; and that this bond is one of a series of
Port Improvement Revenue Bonds (Global Industries, Ltd. Project)
Series 1997 (the "Bonds") issued in the aggregate principal
amount of $28,000,000 FOR THE PURPOSE OF PROVIDING A PORTION OF
THE COST OF THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN DOCK AND WHARF FACILITIES (THE "FACILITIES") TO BE LEASED
BY THE ISSUER TO GLOBAL INDUSTRIES, LTD. (THE "COMPANY") WITHIN
THE BOUNDARIES OF THE ISSUER, pursuant to and secured by a Trust
Indenture (the "Indenture") dated as of November 1, 1997 between
the Issuer and First National Bank of Commerce, as Trustee (the
"Trustee"). Pursuant to a Facilities Agreement (the "Facilities
Agreement") dated as of November 1, 1997 between the Company and
the Issuer, the Company has unconditionally agreed to make
Facilities Payments in the amounts necessary to pay the principal
of, premium, if any, and interest on the Bonds when due.
Reference is hereby made to the Facilities Agreement and the
Indenture for the provisions thereof with respect to the rights,
limitations of rights, duties, obligations and immunities of the
Company, the Issuer, the Trustee, the Paying Agent, and the
Bondholders, including the order of payments in the event of
insufficient funds, the disposition of unclaimed moneys held by
the Trustee and restrictions on the rights of owners of the Bonds
to bring suit. The Facilities Agreement and the Indenture may be
amended to the extent and in the manner provided therein. Copies
of the Facilities Agreement and the Indenture are available for
inspection at the corporate trust office of the Trustee.
[The following paragraph, completed or altered as necessary,
is to be inserted in Bonds which are supported by a Credit
Facility.]
The Purchase Price and principal of and interest on this
bond are also payable from moneys drawn by the Paying Agent on
an irrevocable letter of credit for the Bonds (together with any
extensions and renewals thereof, the "Letter of Credit") issued
by the Bank (as defined in the Indenture) in the initial
aggregate stated amount of $_______________ pursuant to the terms
of a Reimbursement Agreement dated as of ______________ (the
"Reimbursement Agreement") by and between the Company and the
Bank. The Letter of Credit initially expires on
______________________ but may be terminated earlier upon the
occurrence of certain events set forth in the Indenture and the
Reimbursement Agreement or extended as provided in the
Reimbursement Agreement. The Company may substitute for the
Letter of Credit in whole or in part, a new letter of credit or
other credit enhancement facility (together with the Letter of
Credit, a "Credit Facility") as provided in the Indenture and the
Reimbursement Agreement.
The principal amount of this bond together with accrued
interest may become or be declared immediately due and payable in
the manner and with the effect provided in the Indenture.
Unless otherwise defined herein, capitalized terms used in
this bond shall have the meaning given them in the Indenture.
The following terms are defined as follows:
"Business Day" means a day (i) on which banking institutions
[in any city in which an office of the Bank is located if
drawings under a Credit Facility may be required to be made from
such office,]* in New Orleans, Louisiana or in any of the cities
in which the principal corporate trust offices of the Trustee and
the Paying Agent are located are not required or authorized to
remain closed and (ii) on which the New York Stock Exchange is
not closed.
*Bracketed language to be added to Bonds supported by a Credit
Facility.
"Effective Date" means the date on which a new Rate Period
for a Bond takes effect.
"Mode" means the manner in which the interest rates on the
Bonds are set and includes the Flexible Mode, the Daily Mode, the
Weekly Mode and the Multiannual Mode.
"Purchase Date" means the date on which this bond shall be
required to be purchased pursuant to a mandatory or optional
tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to
any particular rate of interest for a Bond, the period during
which such rate of interest determined for such Bond will remain
in effect as described herein. A new interest rate shall take
effect on the date the Daily Mode takes effect and thereafter on
each Business Day.
At the option of the Company and upon certain conditions
provided for in the Indenture described below, all or a portion
of the Bonds (a) may be converted or reconverted from time to
time to or from the Flexible Mode, the Weekly Mode or the
Multiannual Mode, which means that the Rate Period is,
respectively, from 1 up to and including 270 days, one week or
not less than 365 days and (b) may be converted or reconverted
from time to time to or from the Daily Mode.
Conversions of this bond to any other Mode may take place
only on a Business Day upon fifteen (15) days' prior written
notice from the Paying Agent to the REGISTERED OWNER of this
bond. Conversion of this bond to any other Mode shall be subject
to certain conditions set forth in the Indenture. In the event
that the conditions for a proposed conversion to a new Mode are
not met (i) such new Mode shall not take effect on the proposed
conversion date, notwithstanding any prior notice to the
Bondholders of such conversion, and (ii) this bond shall remain
in the Daily Mode until a new Mode is determined in accordance
with the Indenture. In no event shall the failure of this bond
to be converted to a new Mode be deemed to be a Default or an
Event of Default under the Indenture as long as the Purchase
Price is made available on the failed conversion date to holders
of all Bonds that were to have been converted.
The interest rate for this bond in the Daily Mode will be
determined by the Remarketing Agent not later than the Effective
Date and shall be effective from the Effective Date until the
next succeeding Business Day. If the Remarketing Agent fails to
make such determination or fails to announce the Daily Rate, or
in the event that the Remarketing Agent no longer determines, or
fails to determine when required, any Daily Rate for any Bonds,
or, if for any reason such manner of determination shall be
determined to be invalid or unenforceable, the Rate Period for
any such Bonds shall be deemed to be the Daily Rate Period until
a new Mode is determined in accordance with the Indenture, and
the Daily Rate shall be determined by reference to a published
index as provided in the Indenture. The Remarketing Agent shall
announce the Daily Rate by telephone to the Paying Agent not
later than 9:00 A.M., Central time on the Effective Date, and
shall promptly confirm such notice in writing. Any Bondholder
may ascertain the Daily Rate at any time by contacting the Paying
Agent or the Remarketing Agent.
Each determination and redetermination of the Daily Rate
shall be conclusive and binding on the Issuer, the Trustee, the
Paying Agent, the Bank, the Company and the Bondholders.
Interest shall be computed on this bond on the basis of a
365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any
unpaid principal will bear interest at the then Daily Rate until
paid or duly provided for.
The principal of this bond is payable when due by wire
transfer of immediately available funds within the continental
United States or at the option of the REGISTERED OWNER by check
to the REGISTERED OWNER hereof but only upon presentation and
surrender of this bond at the office of First National Bank of
Commerce, New Orleans, Louisiana, as Paying Agent (with its
successors in such capacity, the "Paying Agent"). Interest on
this bond is payable in immediately available funds by wire
transfer within the continental United States from the Paying
Agent or at the option of the REGISTERED OWNER by check to the
REGISTERED OWNER, determined as of the close of business on the
record date on the registration books maintained by the Paying
Agent. Payment of the Purchase Price (as defined below) and
accrued interest of this bond to such owner shall be made on the
Delivery Date, which shall be the Purchase Date, or the day on
which this bond is presented and surrendered, if later than the
Purchase Date, if presentation and surrender of this bond is made
prior to 12:00 noon, Central time, on the day of presentation and
surrender and is the next succeeding Business Day if this bond is
delivered to the Paying Agent after 12:00 noon, Central time on
such day.
The record date for payment of interest on this bond is the
Business Day preceding the date on which interest is to be paid.
With respect to overdue interest or interest payable on
redemption of this bond other than an INTEREST PAYMENT DATE or
interest on any overdue amount, the Trustee may establish a
special record date. Overdue interest on this bond, or interest
on overdue principal is payable in immediately available funds by
wire transfer within the continental United States from the
Paying Agent or at the option of the REGISTERED OWNER by check to
the REGISTERED OWNER, determined as of the close of business on
the applicable special record date as determined by the Trustee,
at its address as shown on the registration books maintained by
the Paying Agent. The special record date may be not more than
thirty (30) days before the date set for payment. The Paying
Agent will mail notice of a special record date to the
Bondholders at least ten (10) days before the special record
date. The Paying Agent will promptly certify to the Issuer, the
Trustee and the Remarketing Agent that it has mailed such notice
to all Bondholders, and such certificate will be conclusive
evidence that notice was given in the manner required hereby.
The REGISTERED OWNER of this bond shall have the right to
tender this bond for purchase in multiples of $100,000 at a price
(the "Purchase Price") equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the Purchase Date,
upon compliance with the conditions described below, provided
that if the Purchase Date is an INTEREST PAYMENT DATE, accrued
interest shall be paid separately, and not as part of the
Purchase Price on such date. In order to exercise the right to
tender, the REGISTERED OWNER must provide to the Paying Agent
written or telephonic notice (and if notice is given by
telephone, it must be promptly confirmed in writing, including by
facsimile transmission delivered to the Paying Agent), which
notice must include (i) the name of the series of which the bond
was issued, (ii) the CUSIP number of the bond being tendered,
(iii) the settlement date of the tender, (iv) if the bond being
tendered is registered in street name with a securities
depository which requires book entry transfers of the bond, the
identity of the depository participant through which the bond
will be delivered to the Paying Agent and (v) the amount of the
bond being tendered. This bond will be purchased on the Business
Day specified in such Bondholder's Election Notice, provided the
Paying Agent receives such notice prior to 9:30 A.M., Central
time, on such Business Day. If the REGISTERED OWNER of this bond
has elected to require purchase as provided above, the REGISTERED
OWNER shall be deemed, by such election, to have agreed
irrevocably to sell this bond to any purchaser determined in
accordance with the provisions of the Indenture on the date fixed
for purchase at the Purchase Price.
Tender of this bond will not be effective and this bond will
not be purchased if at the time fixed for purchase an
acceleration of the maturity of the Bonds shall have occurred and
not have been annulled in accordance with the Indenture. Notice
of tender of this bond is irrevocable. All notices of tender of
Bonds shall be made to the Paying Agent at 210 Barrone Street-
Basement Level, New Orleans, Louisiana 70112, telephone: (800)
472-3512, fax: (504) 623-1095, or such other address specified in
writing by the Paying Agent to the Bondholders. All deliveries
of tendered Bonds, including deliveries of Bonds subject to
mandatory tender, shall be made to the Paying Agent at 210
Barrone Street-Basement Level, New Orleans, Louisiana 70112, or
such other address specified in writing by the Paying Agent to
the Bondholders.
This bond is subject to mandatory tender for purchase at the
Purchase Price (i) on the date of conversion from one Mode to
another Mode, except upon a conversion from a Daily Mode to a
Weekly Mode or from a Weekly Mode to a Daily Mode, (ii) on the
second Business Day preceding the Expiration Date of the then
current Credit Facility unless at least 25 days prior to such
Business Day, the Paying Agent has received notice that such
Credit Facility has been extended and (iii) on the date of
substitution or replacement of the then current Credit Facility.
Notice of mandatory tender shall be given or caused to be given
by the Paying Agent in writing to the REGISTERED OWNER at least
fifteen (15) days prior to the mandatory Purchase Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND
SURRENDER THIS BOND AT SUCH PRICE TO ANY PURCHASER DETERMINED IN
ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE IN THE EVENT OF
SUCH MANDATORY TENDER AND, ON SUCH PURCHASE DATE, TO SURRENDER
THIS BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE PRICE.
From and after the Purchase Date, no further interest on this
bond shall be payable to the REGISTERED OWNER, provided that
there are sufficient funds available on the Purchase Date to pay
the Purchase Price.
This bond is subject to optional redemption in whole or in
part at the direction of the Company on any Business Day at a
redemption price of par plus accrued interest.
Any notice required by this bond to be given to Bondholders
shall be effective when mailed, notwithstanding when or if any
such notice is received by any Bondholder.
This bond is subject to mandatory redemption, in whole
(except as provided below), within 180 days after a Determination
of Taxability, as hereinafter defined, at a redemption price
equal to the principal amount thereof plus accrued interest to
the redemption date, but without premium. "Determination of
Taxability" means a final determination by any court of competent
jurisdiction in the United States, or a final action of the
Internal Revenue Service, in either case in a proceeding of which
the Company has received timely notice and in which the Company
has had sufficient opportunity to participate, to the effect
that, as a result of the failure of the Company to observe or
perform any covenant, agreement, representation, or warranty in
the Facilities Agreement, the interest on the Bonds is includable
in the gross income (for federal income tax purposes) of the
holder thereof (except for any holder who is a "substantial user"
of the Facilities or a "related person" as those terms are used
and defined in the Code).
Upon the occurrence of a Determination of Taxability, this
bond shall be redeemed in whole as provided above, unless, in the
opinion of a nationally recognized bond counsel ("Bond Counsel"),
redemption of a portion of the Bonds outstanding would have the
result that interest payable on the remaining Bonds outstanding
after the redemption would not be includable in the gross income
(for federal income tax purposes) of holders thereof (except for
any holder who is a "substantial user" of the Facilities or a
"related person" as those terms are used and defined in the
Code), in which event only such portion shall be required to be
redeemed. Any such partial redemption shall be made within 180
days following the Determination of Taxability, at a redemption
price equal to the principal amount thereof plus accrued interest
to the redemption date, but without premium, at least in such
aggregate amount as is deemed necessary by Bond Counsel to cause
the interest on the remaining outstanding Bonds not to be
includable in gross income, as described above.
If this bond is redeemed as provided above in accordance
with the terms of the Indenture, then the failure by the Company
to observe or perform a covenant, agreement, representation, or
warranty in the Facilities Agreement which results in a
Determination of Taxability shall not constitute an Event of
Default under the Indenture or the Facilities Agreement, and
payment of the redemption price specified above shall constitute
full and complete payment and satisfaction to the holder of this
bond for any claims, damages, costs, or expenses arising out of
or based upon such failure by the Company.
If this bond is of a denomination in excess of one hundred
thousand dollars ($100,000), portions of the principal amount in
the amount of $100,000 or any integral multiple thereof may be
redeemed. If less than all of this bond is to be called for
redemption, the portion thereof to be redeemed shall be selected
as provided in the Indenture with Bonds being redeemed in units
of $100,000. If less than all of the principal amount of this
bond is to be redeemed, upon surrender of this Bond to the Paying
Agent, there will be issued to the REGISTERED OWNER, without
charge, a new bond or, at the option of the REGISTERED OWNER,
bonds for the unredeemed principal amount.
At least 30 days prior to the date selected for the
redemption of any of the Bonds prior to their scheduled maturity,
the Paying Agent shall cause a written notice of such redemption
to be mailed by the Paying Agent, postage prepaid, not less than
30 days prior to the date selected for redemption, to each
REGISTERED OWNER of the Bonds to be redeemed, addressed to such
REGISTERED OWNER at its address appearing on the registration
books maintained by the Paying Agent and to major securities
depositories, national bond rating agencies and bond information
services as at the time customarily receive such notices; but the
failure of the REGISTERED OWNER to receive any such notice, or
any defect therein or in the mailing thereof, shall not affect
the redemption of such Bonds. Such notice of redemption shall
identify the Bonds to be redeemed, the date selected for such
redemption, the places of payment of the redemption price of the
Bonds which are to be so redeemed and the redemption price at
which the Bonds will be redeemed.
Notice of redemption having been duly mailed, this bond, or
the portion called for redemption, will become due and payable on
the redemption date at the applicable redemption price and, if
moneys for the redemption have been deposited with the Trustee,
then, from and after the date fixed for redemption, no interest
on this bond (or such portion) will accrue. The Paying Agent
will not be required to make an exchange or transfer of this bond
(i) if this bond (or any portion hereof) has been selected for
redemption or (ii) within forty-five (45) days prior to the date
fixed for redemption if this bond (or any portion hereof) is
eligible to be selected for redemption.
With respect to any optional redemption of the Bonds, as
described above, unless certain prerequisites to such redemption
required by the Indenture have been met and moneys sufficient to
pay the principal of and premium, if any, and interest on the
Bonds to be redeemed shall have been received by the Trustee
prior to the giving of such notice of redemption, such notice
shall state that said redemption shall be conditional upon the
satisfaction of such prerequisites and receipt of such moneys by
the Trustee on or prior to the date fixed for such redemption.
If such prerequisites to such redemption and sufficient moneys
are not received, such notice shall be of no force and effect,
the Issuer shall not redeem such bonds and the Paying Agent shall
give notice, in the manner in which the notice of redemption was
given, to the effect that the Bonds have not been redeemed.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND IS
SUBJECT TO PURCHASE. IN EACH SUCH EVENT AND UPON DEPOSIT OF THE
PURCHASE PRICE WITH THE PAYING AGENT ON THE PURCHASE DATE, THIS
BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL CEASE TO BE
DEEMED TO BE OUTSTANDING UNDER THE INDENTURE, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED TO RECEIVE THE PURCHASE PRICE SO
DEPOSITED WITH THE PAYING AGENT ONLY UPON SURRENDER OF THIS BOND
TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person
or by its attorney duly authorized in writing, at the office of
the Paying Agent, upon surrender of this bond to the Paying Agent
for cancellation. Upon the transfer, a new Bond or Bonds in
Authorized Denominations of the same aggregate principal amount
will be issued to the transferee at the same office. No transfer
will be effective unless effected by such surrender and reissue.
This bond may also be exchanged at the office of the Paying Agent
for a new Bond or Bonds in Authorized Denominations of the same
aggregate principal amount without transfer to a new registered
owner. Exchanges and transfers will be without expense to the
owner except for applicable taxes or other governmental charges,
if any.
Except as provided in the Indenture, Bonds in the Daily Mode
are issuable only in fully registered form and shall be in
Authorized Denominations of $100,000 or any integral multiple
thereof.
The Issuer, the Trustee, the Paying Agent and the Company
may treat the REGISTERED OWNER as the absolute owner of this bond
for all purposes, notwithstanding any notice to the contrary.
This bond will not be valid until the Certificate of
Authentication has been signed by the Trustee or its duly
appointed agent for such purpose.
IN WITNESS WHEREOF, this bond has been signed with the
manual or facsimile signature of the President of the Issuer, and
countersigned with the manual or facsimile signature of the
Secretary of the Issuer, and the official seal of the Issuer has
been duly impressed, or placed in facsimile, on this bond, all as
of the first day of November, 1997.
LAKE CHARLES HARBOR AND TERMINAL
DISTRICT
(Seal)
By:_________________________________
President, Board of Commissioners
By:__________________________________
Secretary, Board of Commissioners
Certificate of Authentication
This bond is one of the Bonds described in the Indenture.
FIRST NATIONAL BANK OF COMMERCE,
New Orleans, Louisiana,
as Trustee
Date of Authentication:
By:__________________________________
Authorized Signatory
or
By: ________________________,
as agent of the Trustee
By:_________________________________
Authorized Signatory
Assignment
For value received the undersigned sells, assigns and
transfers this bond to
_________________________________________________________
(Name and Address of Assignee)
_________________________________________________________
_________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints ________________________________,
attorney-in-fact, to transfer it on the books kept for
registration of the bond, with full power of
substitution.
Dated:
Signature Guaranteed:
_____________________________________________
Bank, Trust Company or Brokerage Firm
By: _____________________________________
Authorized Signatory
NOTICE: Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee and the Paying Agent, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Trustee or the Paying Agent in
addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of
1934, as amended.
The following abbreviations, when used in the inscription on
the face of this bond, shall be construed as though they were
written out in full according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety _______ Custodian_______
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act_____________________
(State)
Additional abbreviations may also be used though not set forth in
the list above.
(iv) Form of Weekly Bond. The Bonds may be issued in
the Weekly Mode in substantially the form prescribed below.
$__________ No. W-
ANY HOLDER HEREOF WHO FAILS TO DELIVER THIS BOND FOR PURCHASE AT
THE TIMES AND AT THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER
RIGHTS HEREUNDER EXCEPT THE RIGHT TO RECEIVE THE PURCHASE PRICE
HEREOF AND ACCRUED INTEREST UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD
THIS BOND AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
Port Improvement Revenue Bond
(Global Industries, Ltd. Project)
Series 1997
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES:
(i) the first Business Day of each calendar month, and
(ii) the Maturity Date
MATURITY DATE: ____________
DATE OF THIS BOND:
(Date as of which Bonds of this series were initially
issued)
MODE: Weekly
CUSIP:
THE OBLIGATION TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THIS BOND FROM THE SOURCES DESCRIBED BELOW IS SOLELY
AND EXCLUSIVELY A SPECIAL OBLIGATION OF THE LAKE CHARLES HARBOR
AND TERMINAL DISTRICT (THE "ISSUER"). THE BONDS DO NOT NOW AND
SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR A PLEDGE OF THE GENERAL
CREDIT OF THE ISSUER, THE STATE OF LOUISIANA, OR ANY POLITICAL
SUBDIVISION OF THE STATE OF LOUISIANA, WITHIN THE MEANING OF ANY
CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION OF INDEBTEDNESS.
NO OTHER PUBLIC ENTITY, INCLUDING THE STATE OF LOUISIANA, ANY
POLITICAL SUBDIVISION THEREOF OTHER THAN THE ISSUER, OR ANY OTHER
PUBLIC BODY, IS OBLIGATED, DIRECTLY, INDIRECTLY, CONTINGENTLY, OR
IN ANY OTHER MANNER, TO PAY SUCH PRINCIPAL, PREMIUM, OR INTEREST
FROM ANY SOURCE WHATSOEVER. THIS BOND SHALL NOT BE CONSIDERED A
GENERAL OBLIGATION OF THE BOARD OF COMMISSIONERS OF THE ISSUER,
THE ISSUER, OR THE STATE OF LOUISIANA. THE REGISTERED OWNER
HEREOF SHALL NEVER HAVE THE RIGHT TO DEMAND PAYMENT OF THIS BOND
OR THE INTEREST HEREON OUT OF ANY FUNDS RAISED OR TO BE RAISED BY
TAXATION OR FROM ANY OTHER FUNDS EXCEPT THE SOURCES DESCRIBED
BELOW, AND NO REPRESENTATION IS MADE HEREIN WITH RESPECT TO THE
ANTICIPATED SUFFICIENCY OF SUCH SOURCES. NO PHYSICAL PROPERTY IS
ENCUMBERED BY ANY LIEN OR SECURITY INTEREST FOR THE BENEFIT OF
THE REGISTERED OWNER OF THIS BOND.
The Issuer, for value received, promises to pay to the
REGISTERED OWNER, or registered assigns, but solely from the
moneys to be provided under the Indenture mentioned below, upon
presentation and surrender hereof, in lawful money of the United
States of America, the PRINCIPAL AMOUNT on the MATURITY DATE,
unless paid earlier as provided below, with interest from the
most recent INTEREST PAYMENT DATE to which interest has been paid
or duly provided for or, if no interest has been paid, from the
DATE OF THIS BOND set forth above, until paid in full, at the
rates per annum described below, payable on each INTEREST PAYMENT
DATE. The Weekly Rate for this bond shall be the rate of
interest determined by the Remarketing Agent designated as
provided in the Indenture (herein, with its successors, the
"Remarketing Agent"), for each Rate Period (as defined below) to
be the lowest rate which in its judgment, on the basis of
prevailing financial market conditions, would permit the sale of
the Bonds (as defined below) in the Weekly Mode at par plus
accrued interest on and as of the Effective Date, as defined
below, but not in excess of the Maximum Interest Rate. The
Remarketing Agent shall determine the initial Weekly Rate on or
before the date of issue in or of conversion to the Weekly Mode,
which rate shall remain in effect as provided in the Indenture.
Thereafter, the Remarketing Agent shall redetermine the Weekly
Rate for each Rate Period as provided below. The amount of
interest due on any INTEREST PAYMENT DATE shall be the amount of
unpaid interest accrued on this bond through the day preceding
such INTEREST PAYMENT DATE.
It is hereby certified, recited, declared and covenanted
that this bond has been duly and validly authorized, issued and
delivered; that all acts, conditions and things required or
proper to be performed, exist and be done precedent to and in the
execution and delivery of the Indenture and in the authorization,
issuance and delivery of this bond do exist, have happened and
have been performed in due time, form and manner as required by
law; that the issuance of this bond and the series of which it
forms a part does not exceed or violate any constitutional or
statutory authority; that this bond is a special revenue
obligation of the Issuer, with the principal of and interest on
this bond being payable solely from (except to the extent payable
from amounts attributable to proceeds of the Bonds), and secured
solely by a lien on and pledge of, the revenues or payments
hereinafter described; and that this bond is one of a series of
Port Improvement Revenue Bonds (Global Industries, Ltd. Project)
Series 1997 (the "Bonds") issued in the aggregate principal
amount of $25,000,000 FOR THE PURPOSE OF PROVIDING A PORTION OF
THE COST OF THE ACQUISITION, CONSTRUCTION AND IMPROVEMENT OF
CERTAIN DOCK AND WHARF FACILITIES (THE "FACILITIES") TO BE LEASED
BY THE ISSUER TO GLOBAL INDUSTRIES, LTD. (THE "COMPANY") WITHIN
THE BOUNDARIES OF THE ISSUER, pursuant to and secured by a Trust
Indenture (the "Indenture") dated as of November 1, 1997 between
the Issuer and First National Bank of Commerce, as Trustee (the
"Trustee"). Pursuant to a Facilities Agreement (the "Facilities
Agreement") dated as of November 1, 1997 between the Company and
the Issuer, the Company has unconditionally agreed to make
Facilities Payments in the amounts necessary to pay the principal
of, premium, if any, and interest on the Bonds when due.
Reference is hereby made to the Facilities Agreement and the
Indenture for the provisions thereof with respect to the rights,
limitations of rights, duties, obligations and immunities of the
Company, the Issuer, the Trustee, the Paying Agent, and the
Bondholders, including the order of payments in the event of
insufficient funds, the disposition of unclaimed moneys held by
the Trustee and restrictions on the rights of owners of the Bonds
to bring suit. The Facilities Agreement and the Indenture may be
amended to the extent and in the manner provided therein. Copies
of the Facilities Agreement and the Indenture are available for
inspection at the corporate trust office of the Trustee.
[The following paragraph, completed or altered as necessary,
is to be inserted in Bonds which are supported by a Credit
Facility.]
The Purchase Price and principal of and interest on this
bond are also payable from moneys drawn by the Paying Agent on
an irrevocable letter of credit for the Bonds (together with any
extensions and renewals thereof, the "Letter of Credit") issued
by the Bank (as defined in the Indenture) in the initial
aggregate stated amount of $_______________ pursuant to the terms
of a Reimbursement Agreement dated as of ______________ (the
"Reimbursement Agreement") by and between the Company and the
Bank. The Letter of Credit initially expires on
______________________ but may be terminated earlier upon the
occurrence of certain events set forth in the Indenture and the
Reimbursement Agreement or extended as provided in the
Reimbursement Agreement. The Company may substitute for the
Letter of Credit in whole or in part, a new letter of credit or
other credit enhancement facility (together with the Letter of
Credit, a "Credit Facility") as provided in the Indenture and the
Reimbursement Agreement.
The principal amount of this bond together with accrued
interest may become or be declared immediately due and payable in
the manner and with the effect provided in the Indenture.
Unless otherwise defined herein, capitalized terms used in
this bond shall have the meaning given them in the Indenture.
The following terms are defined as follows:
"Business Day" means a day (i) on which banking institutions
[in any city in which an office of the Bank is located if
drawings under a Credit Facility may be required to be made from
such office,]* in New Orleans, Louisiana or in any of the cities
in which the principal corporate trust offices of the Trustee
and the Paying Agent are located are not required or authorized
to remain closed and (ii) on which the New York Stock Exchange is
not closed.
*Bracketed language to be added to Bonds supported by a
Credit Facility.
"Effective Date" means the date on which a new Rate Period
for a Bond takes effect.
"Mode" means the manner in which the interest rates on the
Bonds are set and includes the Flexible Mode, the Daily Mode, the
Weekly Mode and the Multiannual Mode.
"Purchase Date" means the date on which this bond shall be
required to be purchased pursuant to a mandatory or optional
tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to
any particular rate of interest for a Bond, the period during
which such rate of interest determined for such Bond will remain
in effect as described herein. A new interest rate shall take
effect on the date the Weekly Mode takes effect and thereafter on
each Wednesday.
At the option of the Company and upon certain conditions
provided for in the Indenture described below, all or a portion
of the Bonds (a) may be converted or reconverted from time to
time to or from the Flexible Mode, the Daily Mode or the
Multiannual Mode, which means that the Rate Period is,
respectively, from 1 up to and including 270 days, one day or not
less than 365 days and (b) may be converted or reconverted from
time to time to or from the Weekly Mode.
Conversions of this bond to any other Mode may take place
only on a Business Day upon fifteen (15) days' prior written
notice from the Paying Agent to the REGISTERED OWNER of this
bond. Conversion of this bond to any other Mode shall be subject
to certain conditions set forth in the Indenture. In the event
that the conditions for a proposed conversion to a new Mode are
not met (i) such new Mode shall not take effect on the proposed
conversion date, notwithstanding any prior notice to the
Bondholders of such conversion, and (ii) this bond shall
automatically convert to the Daily Mode until a new Mode is
determined in accordance with the Indenture. In no event shall
the failure of this bond to be converted to a new Mode be deemed
to be a Default or an Event of Default under the Indenture as
long as the Purchase Price is made available on the failed
conversion date to holders of all Bonds that were to have been
converted.
The interest rate for this Bond in the Weekly Mode will be
determined by the Remarketing Agent not later than the Business
Day next preceding the Effective Date and shall be effective
through the following Tuesday. If the Remarketing Agent fails to
make such determination or fails to announce the Weekly Rate, or
in the event that the Remarketing Agent no longer determines, or
fails to determine when required, any Rate Period or any Weekly
Rate for any Bonds, or, if for any reason such manner of
determination shall be determined to be invalid or unenforceable,
the Rate Period for any such Bond shall be deemed to be the Daily
Rate Period until a new Mode is determined in accordance with the
Indenture, and the Daily Rate shall be determined by reference to
a published index as provided in the Indenture. The Remarketing
Agent shall announce the Weekly Rate by telephone to the Paying
Agent on the date of determination thereof, and shall promptly
confirm such notice in writing. Any Bondholder may ascertain the
Weekly Rate at any time by contacting the Paying Agent or the
Remarketing Agent.
Each determination and redetermination of the Weekly Rate
shall be conclusive and binding on the Issuer, the Trustee, the
Paying Agent, the Bank, the Company and the Bondholders.
Interest shall be computed on this bond on the basis of a
365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any
unpaid principal will bear interest at the then Weekly Rate until
paid or duly provided for.
The principal of this bond is payable when due by wire
transfer of immediately available funds within the continental
United States or at the option of the REGISTERED OWNER by check
to the REGISTERED OWNER hereof but only upon presentation and
surrender of this bond at the office of First National Bank of
Commerce, New Orleans, Louisiana, as Paying Agent (with its
successors in such capacity, the "Paying Agent"). Interest on
this bond is payable in immediately available funds by wire
transfer within the continental United States from the Paying
Agent or at the option of the REGISTERED OWNER by check to the
REGISTERED OWNER, determined as of the close of business on the
record date on the registration books maintained by the Paying
Agent. Payment of the Purchase Price (as defined below) and
accrued interest of this bond to such owner shall be made on the
Delivery Date, which shall be the Purchase Date, or the day on
which this bond is presented and surrendered, if later than the
Purchase Date, if presentation and surrender of this bond is made
prior to 12:00 noon, Central time, on the day of presentation and
surrender and is the next succeeding Business Day if this bond is
delivered to the Paying Agent after 12:00 noon, Central time on
such day.
The record date for payment of interest on this bond is the
Business Day preceding the date on which interest is to be paid.
With respect to overdue interest or interest payable on
redemption of this bond other than an INTEREST PAYMENT DATE or
interest on any overdue amount, the Trustee may establish a
special record date. Overdue interest on this bond, or interest
on overdue principal is payable in immediately available funds by
wire transfer within the continental United States from the
Paying Agent or at the option of the REGISTERED OWNER by check to
the REGISTERED OWNER, determined as of the close of business on
the applicable special record date as determined by the Trustee,
at its address as shown on the registration books maintained by
the Paying Agent. The special record date may be not more than
thirty (30) days before the date set for payment. The Paying
Agent will mail notice of a special record date to the
Bondholders at least ten (10) days before the special record
date. The Paying Agent will promptly certify to the Issuer, the
Trustee and the Remarketing Agent that it has mailed such notice
to all Bondholders, and such certificate will be conclusive
evidence that notice was given in the manner required hereby.
The REGISTERED OWNER of this bond shall have the right to
tender this bond for purchase in multiples of $100,000 at a price
(the "Purchase Price") equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the Purchase Date,
upon compliance with the conditions described below, provided
that if the Purchase Date is an INTEREST PAYMENT DATE, accrued
interest shall be paid separately, and not as part of the
Purchase Price on such date. In order to exercise the right to
tender, the REGISTERED OWNER must provide to the Paying Agent
written or telephonic notice (and if notice is given by
telephone, it must be promptly confirmed in writing, including by
facsimile transmission delivered to the Paying Agent), which
notice must include (i) the name of the series of which the bond
was issued, (ii) the CUSIP number of the bond being tendered,
(iii) the settlement date of the tender, (iv) if the bond being
tendered is registered in street name with a securities
depository which requires book entry transfers of the bond, the
identity of the depository participant through which the bond
will be delivered to the Paying Agent and (v) the amount of the
bond being tendered. This bond will be purchased on the Business
Day specified in such Bondholder's Election Notice, provided such
date is at least seven calendar days after receipt by the Paying
Agent of such notice. If the REGISTERED OWNER of this bond has
elected to require purchase as provided above, the REGISTERED
OWNER shall be deemed, by such election, to have agreed
irrevocably to sell this bond to any purchaser determined in
accordance with the provisions of the Indenture on the date fixed
for purchase at the Purchase Price.
Tender of this bond will not be effective and this bond will
not be purchased if at the time fixed for purchase an
acceleration of the maturity of the Bonds shall have occurred and
not have been annulled in accordance with the Indenture. Notice
of tender of this bond is irrevocable. All notices of tender of
Bonds shall be made to the Paying Agent at 210 Barrone Street-
Basement Level, New Orleans, Louisiana 70112, telephone: (800)
472-3512, fax: (504) 623-1095, or such other address specified in
writing by the Paying Agent to the Bondholders. All deliveries
of tendered Bonds, including deliveries of Bonds subject to
mandatory tender, shall be made to the Paying Agent at 210
Barrone Street-Basement Level, New Orleans, Louisiana 70112, or
such other address specified in writing by the Paying Agent to
the Bondholders.
This bond is subject to mandatory tender for purchase at the
Purchase Price (i) on the date of conversion from one Mode to
another Mode, except upon a conversion from a Daily Mode to a
Weekly Mode or from a Weekly Mode to a Daily Mode, (ii) on the
second Business Day preceding the Expiration Date of the then
current Credit Facility unless at least 25 days prior to such
Business Day, the Paying Agent has received notice that such
Credit Facility has been extended and (iii) on the date of
substitution or replacement of the then current Credit Facility.
Notice of mandatory tender shall be given or caused to be given
by the Paying Agent in writing to the REGISTERED OWNER at least
fifteen (15) days prior to the mandatory Purchase Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND
SURRENDER THIS BOND AT SUCH PRICE TO ANY PURCHASER DETERMINED IN
ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE IN THE EVENT OF
SUCH MANDATORY TENDER AND, ON SUCH PURCHASE DATE, TO SURRENDER
THIS BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE PRICE.
From and after the Purchase Date, no further interest on this
bond shall be payable to the REGISTERED OWNER, provided that
there are sufficient funds available on the Purchase Date to pay
the Purchase Price.
This bond is subject to optional redemption in whole or in
part at the direction of the Company on any Business Day at a
redemption price of par plus accrued interest.
Any notice required by this Bond to be given to Bondholders
shall be effective when mailed, notwithstanding when or if any
such notice is received by any Bondholder.
This bond is subject to mandatory redemption, in whole
(except as provided below), within 180 days after a Determination
of Taxability, as hereinafter defined, at a redemption price
equal to the principal amount thereof plus accrued interest to
the redemption date, but without premium. "Determination of
Taxability" means a final determination by any court of competent
jurisdiction in the United States, or a final action of the
Internal Revenue Service, in either case in a proceeding of which
the Company has received timely notice and in which the Company
has had sufficient opportunity to participate, to the effect
that, as a result of the failure of the Company to observe or
perform any covenant, agreement, representation, or warranty in
the Facilities Agreement, the interest on the Bonds is includable
in the gross income (for federal income tax purposes) of the
holder thereof (except for any holder who is a "substantial user"
of the Facilities or a "related person" as those terms are used
and defined in the Code).
Upon the occurrence of a Determination of Taxability, this
bond shall be redeemed in whole as provided above, unless, in the
opinion of a nationally recognized bond counsel ("Bond Counsel"),
redemption of a portion of the Bonds outstanding would have the
result that interest payable on the remaining Bonds outstanding
after the redemption would not be includable in the gross income
(for federal income tax purposes) of holders thereof (except for
any holder who is a "substantial user" of the Facilities or a
"related person" as those terms are used and defined in the
Code), in which event only such portion shall be required to be
redeemed. Any such partial redemption shall be made within 180
days following the Determination of Taxability, at a redemption
price equal to the principal amount thereof plus accrued interest
to the redemption date, but without premium, at least in such
aggregate amount as is deemed necessary by Bond Counsel to cause
the interest on the remaining outstanding Bonds not to be
includable in gross income, as described above.
If this bond is redeemed as provided above in accordance
with the terms of the Indenture, then the failure by the Company
to observe or perform a covenant, agreement, representation, or
warranty in the Facilities Agreement which results in a
Determination of Taxability shall not constitute an Event of
Default under the Indenture or the Facilities Agreement, and
payment of the redemption price specified above shall constitute
full and complete payment and satisfaction to the holder of this
bond for any claims, damages, costs, or expenses arising out of
or based upon such failure by the Company.
If this bond is of a denomination in excess of one hundred
thousand dollars ($100,000), portions of the principal amount in
the amount of $100,000 or any integral multiple thereof may be
redeemed. If less than all of this bond is to be called for
redemption, the portion thereof to be redeemed shall be selected
as provided in the Indenture with Bonds being redeemed in units
of $100,000. If less than all of the principal amount of this
bond is to be redeemed, upon surrender of this Bond to the Paying
Agent, there will be issued to the REGISTERED OWNER, without
charge, a new bond or, at the option of the REGISTERED OWNER,
bonds for the unredeemed principal amount.
At least 30 days prior to the date selected for the
redemption of any of the Bonds prior to their scheduled maturity,
the Paying Agent shall cause a written notice of such redemption
to be mailed by the Paying Agent, postage prepaid, not less than
30 days prior to the date selected for redemption, to each
REGISTERED OWNER of the Bonds to be redeemed, addressed to such
REGISTERED OWNER at its address appearing on the registration
books maintained by the Paying Agent and to major securities
depositories, national bond rating agencies and bond information
services as at the time customarily receive such notices; but the
failure of the REGISTERED OWNER to receive any such notice, or
any defect therein or in the mailing thereof, shall not affect
the redemption of such Bonds. Such notice of redemption shall
identify the Bonds to be redeemed, the date selected for such
redemption, the places of payment of the redemption price of the
Bonds which are to be so redeemed and the redemption price at
which the Bonds will be redeemed.
Notice of redemption having been duly mailed, this bond, or
the portion called for redemption, will become due and payable on
the redemption date at the applicable redemption price and, if
moneys for the redemption have been deposited with the Trustee,
then, from and after the date fixed for redemption, no interest
on this bond (or such portion) will accrue. The Paying Agent
will not be required to make an exchange or transfer of this bond
(i) if this bond (or any portion hereof) has been selected for
redemption or (ii) within forty-five (45) days prior to the date
fixed for redemption if this bond (or any portion hereof) is
eligible to be selected for redemption.
With respect to any optional redemption of the Bonds, as
described above, unless certain prerequisites to such redemption
required by the Indenture have been met and moneys sufficient to
pay the principal of and premium, if any, and interest on the
Bonds to be redeemed shall have been received by the Trustee
prior to the giving of such notice of redemption, such notice
shall state that said redemption shall be conditional upon the
satisfaction of such prerequisites and receipt of such moneys by
the Trustee on or prior to the date fixed for such redemption.
If such prerequisites to such redemption and sufficient moneys
are not received, such notice shall be of no force and effect,
the Issuer shall not redeem such bonds and the Paying Agent shall
give notice, in the manner in which the notice of redemption was
given, to the effect that the Bonds have not been redeemed.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND IS
SUBJECT TO PURCHASE. IN EACH SUCH EVENT AND UPON DEPOSIT OF THE
PURCHASE PRICE WITH THE PAYING AGENT ON THE PURCHASE DATE, THIS
BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL CEASE TO BE
DEEMED TO BE OUTSTANDING UNDER THE INDENTURE, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED TO RECEIVE THE PURCHASE PRICE SO
DEPOSITED WITH THE PAYING AGENT ONLY UPON SURRENDER OF THIS BOND
TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person
or by its attorney duly authorized in writing, at the office of
the Paying Agent, upon surrender of this bond to the Paying Agent
for cancellation. Upon the transfer, a new Bond or Bonds in
Authorized Denominations of the same aggregate principal amount
will be issued to the transferee at the same office. No transfer
will be effective unless effected by such surrender and reissue.
This bond may also be exchanged at the office of the Paying Agent
for a new Bond or Bonds in Authorized Denominations of the same
aggregate principal amount without transfer to a new registered
owner. Exchanges and transfers will be without expense to the
owner except for applicable taxes or other governmental charges,
if any.
Except as provided in the Indenture, Bonds in the Weekly
Mode are issuable only in fully registered form and shall be in
Authorized Denominations of $100,000 or any integral multiple
thereof.
The Issuer, the Trustee, the Paying Agent and the Company
may treat the REGISTERED OWNER as the absolute owner of this bond
for all purposes, notwithstanding any notice to the contrary.
This bond will not be valid until the Certificate of
Authentication has been signed by the Trustee or its duly
appointed agent for such purpose.
IN WITNESS WHEREOF, this bond has been signed with the
manual or facsimile signature of the President of the Issuer, and
countersigned with the manual or facsimile signature of the
Secretary of the Issuer, and the official seal of the Issuer has
been duly impressed, or placed in facsimile, on this bond, all as
of the first day of November, 1997.
LAKE CHARLES HARBOR AND TERMINAL
DISTRICT
(Seal)
By:__________________________________
President, Board of Commissioners
By:__________________________________
Secretary, Board of Commissioners
Certificate of Authentication
This bond is one of the Bonds described in the Indenture.
FIRST NATIONAL BANK OF COMMERCE,
New Orleans, Louisiana,
as Trustee
Date of Authentication:
By:__________________________________
Authorized Signatory
or
By: ________________________,
as agent of the Trustee
By:__________________________________
Authorized Signatory
Assignment
For value received the undersigned sells, assigns and
transfers this bond to
_________________________________________________________
(Name and Address of Assignee)
_________________________________________________________
_________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints ________________________________,
attorney-in-fact, to transfer it on the books kept for
registration of the bond, with full power of
substitution.
Dated:
Signature Guaranteed:
_____________________________________________
Bank, Trust Company or Brokerage Firm
By: _____________________________________
Authorized Signatory
NOTICE: Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee and the Paying Agent, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Trustee or the Paying Agent in
addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of
1934, as amended.
The following abbreviations, when used in the inscription on
the face of this bond, shall be construed as though they were
written out in full according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety _______ Custodian_______
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act_____________________
(State)
Additional abbreviations may also be used though not set forth in
the list above.
(v) Form of Multiannual Bond. The Bonds may be issued in
the Multiannual Mode in substantially the form prescribed below.
$_________ No. M-
ANY HOLDER HEREOF WHO FAILS TO DELIVER THIS BOND FOR PURCHASE AT
THE TIME AND AT THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER
RIGHTS HEREUNDER EXCEPT THE RIGHT TO RECEIVE THE PURCHASE PRICE
HEREOF AND ACCRUED INTEREST UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD
THIS BOND AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF LOUISIANA
LAKE CHARLES HARBOR AND TERMINAL DISTRICT
Port Improvement Revenue Bond
(Global Industries, Ltd. Project)
Series 1997
REGISTERED OWNER:
PRINCIPAL AMOUNT:
SERIES DESIGNATION:
INTEREST RATE:
(To Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: ____________
MODE: Multiannual
CUSIP:
THE OBLIGATION TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND
INTEREST ON THIS BOND FROM THE SOURCES DESCRIBED BELOW IS SOLELY
AND EXCLUSIVELY A SPECIAL OBLIGATION OF THE LAKE CHARLES HARBOR
AND TERMINAL DISTRICT (THE "ISSUER"). THE BONDS DO NOT NOW AND
SHALL NEVER CONSTITUTE AN INDEBTEDNESS OR A PLEDGE OF THE GENERAL
CREDIT OF THE ISSUER, THE STATE OF LOUISIANA, OR ANY POLITICAL
SUBDIVISION OF THE STATE OF LOUISIANA, WITHIN THE MEANING OF ANY
CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION OR INDEBTEDNESS.
NO OTHER PUBLIC ENTITY, INCLUDING THE STATE OF LOUISIANA, ANY
POLITICAL SUBDIVISION THEREOF OTHER THAN THE ISSUER, OR ANY OTHER
PUBLIC BODY, IS OBLIGATED, DIRECTLY, INDIRECTLY, CONTINGENTLY, OR
IN ANY OTHER MANNER, TO PAY SUCH PRINCIPAL, PREMIUM, OR INTEREST
FROM ANY SOURCE WHATSOEVER. THIS BOND SHALL NOT BE CONSIDERED A
GENERAL OBLIGATION OF THE BOARD OF COMMISSIONERS OF THE ISSUER,
THE ISSUER, OR THE STATE OF LOUISIANA. THE REGISTERED OWNER
HEREOF SHALL NEVER HAVE THE RIGHT TO DEMAND PAYMENT OF THIS BOND
OR THE INTEREST HEREON OUT OF ANY FUNDS RAISED OR TO BE RAISED BY
TAXATION OR FROM ANY OTHER FUNDS EXCEPT THE SOURCES DESCRIBED
BELOW, AND NO REPRESENTATION IS MADE HEREIN WITH RESPECT TO THE
ANTICIPATED SUFFICIENCY OF SUCH SOURCES. NO PHYSICAL PROPERTY IS
ENCUMBERED BY ANY LIEN OR SECURITY INTEREST FOR THE BENEFIT OF
THE REGISTERED OWNER OF THIS BOND.
The Issuer, for value received, promises to pay to the
REGISTERED OWNER, or registered assigns, but solely from the
moneys to be provided under the Indenture mentioned below, upon
presentation and surrender hereof, in lawful money of the United
States of America, the PRINCIPAL AMOUNT on the MATURITY DATE,
unless paid earlier as provided below, with interest from the
most recent Interest Payment Date, as defined below, to which
interest has been paid or duly provided for or, if no interest
has been paid, from the COMMENCEMENT DATE OF RATE PERIOD set
forth above, until paid in full, at the rates per annum described
below, payable on the first day of the next succeeding November
or May, whichever comes first, after the COMMENCEMENT DATE OF
RATE PERIOD and the first day of each November and May thereafter
to and including the earlier of the Purchase Date or the MATURITY
DATE (the "Interest Payment Dates"). This bond shall bear
interest at the INTEREST RATE set forth above up to the NEXT
PURCHASE DATE. Thereafter, the Remarketing Agent shall
redetermine the Multiannual Rate for each Rate Period, which
shall be the rate of interest determined by the Remarketing Agent
designated as provided in the Indenture (herein, with its
successors, the "Remarketing Agent"), for each Rate Period (as
defined below) to be the lowest rate which in its judgment, on
the basis of prevailing financial market conditions, is necessary
on and as of the Effective Date, as defined below, to remarket
each bond having such Rate Period in a secondary market
transaction at a price equal to the principal amount thereof, but
not in excess of the Maximum Interest Rate. If any payment date
for principal, premium or interest shall not be a Business Day,
then the payment thereof may be made on the next succeeding
Business Day with the same force and effect as if made on the
specified payment date and no interest shall accrue for the
period after the specified payment date.
It is hereby certified, recited, declared and covenanted
that this bond has been duly and validly authorized, issued and
delivered; that all acts, conditions and things required or
proper to be performed, exist and be done precedent to and in the
execution and delivery of the Indenture and in the authorization,
issuance and delivery of this bond do exist, have happened and
have been performed in due time, form and manner as required by
law; that the issuance of this bond and the series of which it
forms a part does not exceed or violate any constitutional or
statutory limitation; that this bond is a special revenue
obligation of the Issuer, with the principal of, premium, if any,
and interest on this bond being payable solely from (except to
the extent payable from amounts attributable to proceeds of the
Bonds), and secured solely by a lien on and pledge of, the
revenues or payments hereinafter described; and that this bond is
one of a series of Port Improvement Revenue Bonds (Global
Industries, Ltd. Project) Series 1997 (the "Bonds") issued in the
aggregate principal amount of $25,000,000 FOR THE PURPOSE OF
PROVIDING A PORTION OF THE COST OF THE ACQUISITION, CONSTRUCTION
AND IMPROVEMENT OF CERTAIN DOCK AND WHARF FACILITIES (THE
"FACILITIES") TO BE LEASED BY THE ISSUER TO GLOBAL INDUSTRIES,
LTD. (THE "COMPANY") WITHIN THE BOUNDARIES OF THE ISSUER,
pursuant to and secured by a Trust Indenture (the "Indenture")
dated as of November 1, 1997 between the Issuer and First
National Bank of Commerce, as Trustee (the "Trustee"). Pursuant
to a Facilities Agreement (the "Facilities Agreement") dated as
of November 1, 1997 between the Company and the Issuer, the
Company has unconditionally agreed to make Facilities Payments in
the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. Reference
is hereby made to the Facilities Agreement and the Indenture for
the provisions thereof with respect to the rights, limitations of
rights, duties, obligations and immunities of the Company, the
Issuer, the Trustee, the Paying Agent, and the Bondholders,
including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee
and restrictions on the rights of owners of the Bonds to bring
suit. The Facilities Agreement and the Indenture may be amended
to the extent and in the manner provided therein. Copies of the
Facilities Agreement and the Indenture are available for
inspection at the corporate trust office of the Trustee.
[The following paragraph, completed or altered as necessary,
is to be inserted in Bonds which are supported by a Credit
Facility.]
The Purchase Price and principal of and interest on this
bond are also payable from moneys drawn by the Paying Agent on
an irrevocable letter of credit for the Bonds (together with any
extensions and renewals thereof, the "Letter of Credit") issued
by the Bank (as defined in the Indenture) in the initial
aggregate stated amount of $_______________ pursuant to the terms
of a Reimbursement Agreement dated as of ______________ (the
"Reimbursement Agreement") by and between the Company and the
Bank. The Letter of Credit initially expires on
______________________ but may be terminated earlier upon the
occurrence of certain events set forth in the Indenture and the
Reimbursement Agreement or extended as provided in the
Reimbursement Agreement. The Company may substitute for the
Letter of Credit in whole or in part, a new letter of credit or
other credit enhancement facility (together with the Letter of
Credit, a "Credit Facility") as provided in the Indenture and the
Reimbursement Agreement.
The principal amount of this bond together with accrued
interest may become or be declared immediately due and payable in
the manner and with the effect provided in the Indenture.
Unless otherwise defined herein, capitalized terms used in
this bond shall have the meaning given them in the Indenture.
The following terms are defined as follows:
"Business Day" means a day (i) on which banking institutions
[in any city in which an office of the Bank is located if
drawings under a Credit Facility may be required to be made from
such office,]* in New Orleans, Louisiana or in any of the cities
in which the principal corporate trust offices of the Trustee
and the Paying Agent are located are not required or authorized
to remain closed and (ii) on which the New York Stock Exchange is
not closed.
*Bracketed language to be added to Bonds supported by a
Credit Facility.
"Effective Date" means the date on which a new Rate Period
for a Bond takes effect.
"Mode" means the manner in which the interest rates on the
Bonds are set and includes the Flexible Mode, the Daily Mode, the
Weekly Mode and the Multiannual Mode.
"Purchase Date" means the date on which this bond shall be
required to be purchased pursuant to a mandatory tender in
accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to
any particular rate of interest for a Bond, the period during
which such rate of interest determined for such Bond will remain
in effect as described herein.
At the option of the Company and upon certain conditions
provided for in the Indenture described below, all or a portion
of the Bonds (a) may be converted or reconverted from time to
time to or from the Multiannual Mode and (b) may be converted or
reconverted from time to time to or from the Flexible Mode, the
Daily Mode or the Weekly Mode, which means that the Rate Period
is, respectively, from 1 up to and including 270 days, one day or
one week as provided herein.
Conversions of this bond to any other Mode, or conversions
to new Rate Periods of the same or different lengths, may take
place only on a day on which this bond is subject to redemption
at the direction of the Company at a redemption price equal to
100% of the purchase price hereof, plus accrued interest,
pursuant to the provisions of the eighth following paragraph or
on a day next succeeding the last day of a Rate Period, or if
conversion is to any other Mode and such day is not a Business
Day, the first Business Day thereafter. Conversion of this bond
to any other Mode, or to a new Rate Period in the Multiannual
Mode of the same or a different length, shall be subject to the
conditions set forth in the Indenture. In the event that the
conditions for a proposed conversion to a new Mode, or to a new
Rate Period in the Multiannual Mode of the same or different
length, are not met (i) such new Mode or Rate Period shall not
take effect on the proposed conversion date, notwithstanding any
prior notice to the Bondholders of such conversion, and (ii) this
bond shall automatically convert to the Daily Mode until a new
Mode is determined in accordance with the Indenture. In no event
shall the failure of this bond to be converted to any other Mode
or to a new Rate Period within the Multiannual Mode be deemed to
be a Default or an Event of Default under the Indenture as long
as the Purchase Price is made available on the failed conversion
date to holders of all Bonds that were to have been converted.
The Multiannual Rate in effect for each Rate Period shall be
determined not later than two (2) Business Days prior to the
Effective Date. If the Remarketing Agent fails to make such
determination or fails to announce the Multiannual Rate as
required with respect to any Bonds in the Multiannual Mode, or,
if for any reason such manner of determination shall be
determined to be invalid or unenforceable, the rate to take
effect on any Effective Date shall be automatically converted to
the Daily Mode until a new Mode is determined in accordance with
the Indenture, and the Daily Rate shall be determined by
reference to a published index as provided in the Indenture. The
Remarketing Agent shall announce the Multiannual Rate by
telephone to the Paying Agent on the date of determination
thereof, and shall promptly confirm such notice in writing.
Each determination and redetermination of the Multiannual
Rate shall be conclusive and binding on the Issuer, the Trustee,
the Paying Agent, the Company and the Bondholders.
Interest on this bond shall be computed on the basis of a
360-day year consisting of twelve 30-day months. From and after
the date on which this bond becomes due, any unpaid principal
will bear interest at the then Multiannual Rate until paid or
duly provided for.
The principal of and premium, if any, on this bond are
payable when due by check in clearinghouse funds to the
REGISTERED OWNER hereof but only upon presentation and surrender
of this bond at the office of First National Bank of Commerce,
New Orleans, Louisiana, as Paying Agent (with its successors in
such capacity, the "Paying Agent"). Interest on this bond is
payable by check in clearinghouse funds mailed on the applicable
payment date by the Paying Agent to the REGISTERED OWNER,
determined as of the close of business on the applicable record
date, at its address as shown on the registration books, except
when an Interest Payment Date coincides with the Purchase Date,
in which case interest shall be payable upon presentation and
surrender of this bond. The Purchase Price and accrued interest
to the Purchase Date shall be paid as provided below.
The record date for payment of interest on this bond is the
fifteenth day of the month immediately preceding the date on
which the interest is to be paid, provided that with respect to
overdue interest or interest payable on redemption of this bond
other than on an Interest Payment Date or interest on any overdue
amount, the Trustee may establish a special record date. The
special record date may be not more than thirty (30) days before
the date set for payment. The Paying Agent will mail notice of a
special record date to the Bondholders at least ten (10) days
before the special record date. The Paying Agent will promptly
certify to the Issuer, the Trustee and the Remarketing Agent that
it has mailed such notice to all Bondholders, and such
certificate will be conclusive evidence that notice was given in
the manner required hereby.
This bond is subject to mandatory tender for purchase and
shall be purchased on the NEXT PURCHASE DATE set forth above or
on the earlier date, if any, on which this bond is converted to a
new Mode or Rate Period at a price equal to 100% of the principal
amount hereof (the "Purchase Price"). THE HOLDER OF THIS BOND,
BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS BOND IN
ACCORDANCE WITH THE PROVISIONS OF THE INDENTURE AND, ON THE
PURCHASE DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR
PAYMENT OF THE PURCHASE PRICE AND ACCRUED INTEREST. All
deliveries of tendered Bonds, including deliveries of Bonds
subject to mandatory tender, shall be made to the Paying Agent at
210 Barrone Street-Basement Level, New Orleans, Louisiana 70112,
or such other address specified in writing by the Paying Agent to
the Bondholders.
The Purchase Price and accrued interest of this bond shall
be paid to the REGISTERED OWNER in clearinghouse funds by the
Paying Agent on the Delivery Date, which shall be the Purchase
Date, or the day on which this bond is presented and surrendered,
if later than the Purchase Date, if presentation and surrender of
this bond is made prior to 12:00 noon, Central time, on the day
of presentation and surrender and is the next succeeding Business
Day if this bond is delivered to the Paying Agent after 12:00
noon, Central time on such day. The Purchase Price and accrued
interest of this bond shall be paid only upon surrender of this
bond to the Paying Agent as provided herein. Payment of the
Purchase Price of this bond and accrued interest upon mandatory
tender for purchase shall be made on the Delivery Date.
This bond shall be subject to optional redemption by the
Issuer at the direction of the Company in whole or in part at any
time during the periods and at the prices specified by the
Company for such Multiannual Period, or if no such periods or
prices shall have been specified, during the following periods at
the following redemption prices expressed as a percentage of the
principal amount redeemed, plus interest accrued to the
redemption date:
Length of Redemption Prices
Multiannual (expressed as percentages of
Rate Period Principal Amount)
(expressed in
years)
greater than 17 after 10 years at 102%,
declining by 1% annually to 100%
less than or equal after 5 years at 102%,
to 17and greater declining by 1% annually to 100%
than 10
less than or after 5 years at 101.5%,
equal to 10 declining by .5 of 1% every 6 months
and greater than 8 to 100%
less than or after 3 years at 101.5%,
equal to 8 declining by .5 of 1% every 6 months
and greater than 6 to 100%
less than or after 2 years at 101%,
equal to 6 declining by .5 of 1% every 6 months
and greater than 4 to 100%
less than or after 2 years at 100.5,
equal to 4 declining by .5 of 1% after 6 months
and greater than 3 to 100%
less than or after 1 year at 100.5%,
equal to 3 declining by .5 of 1% after 6 months
and greater than 2 to 100%
less than or after 1 year at 100%
equal to 2
and greater than 1
1 year Not redeemable
This bond is subject to optional redemption on any date
prior to scheduled maturity and may be redeemed prior to
scheduled maturity by the Issuer at the direction of the Company,
in whole or in part, at a redemption price equal to the principal
amount thereof plus accrued interest thereon to the date of
redemption, and without premium, if one or more of the following
events shall have occurred:
(a) The Company shall have determined that the
operation of the Facilities or some portion of the
Facilities, or operation of any unit served by such
Facilities is impracticable, uneconomical, or undesirable
for any reason; or
(b) All or substantially all of any unit served by the
Facilities shall have been condemned or taken by eminent
domain; or
(c) The operation of the Facilities or operation of
any unit served by such Facilities shall have been enjoined
or shall have otherwise been prohibited by, or shall
conflict with, any order, decree, rule, or regulation of any
court or of any federal, state, or local regulatory body,
administrative agency, or other governmental body.
To direct the exercise of such option, the Company shall give
written notice to the Issuer, the Trustee and the Paying Agent,
which notice shall specify that, as determined by the Company,
one or more of such events has occurred or one or more of such
conditions is continuing, and such determination shall be
conclusive.
Any notice required by this bond to be given to Bondholders
shall be effective when mailed, notwithstanding when or if any
such notice is received by any Bondholder.
This bond is subject to mandatory redemption, in whole
(except as provided below), within 180 days after a Determination
of Taxability, as hereinafter defined, at a redemption price
equal to the principal amount thereof plus accrued interest to
the redemption date, but without premium. "Determination of
Taxability" means a final determination by any court of competent
jurisdiction in the United States, or a final action of the
Internal Revenue Service, in either case in a proceeding of which
the Company has received timely notice and in which the Company
has had sufficient opportunity to participate, to the effect
that, as a result of the failure of the Company to observe or
perform any covenant, agreement, representation, or warranty in
the Facilities Agreement, the interest on the Bonds is includable
in the gross income (for federal income tax purposes) of the
holder thereof (except for any holder who is a "substantial user"
of the Facilities or a "related person" as those terms are used
and defined in the Code).
Upon the occurrence of a Determination of Taxability, this
bond shall be redeemed in whole as provided above, unless, in the
opinion of a nationally recognized bond counsel ("Bond Counsel"),
redemption of a portion of the Bonds outstanding would have the
result that interest payable on the remaining Bonds outstanding
after the redemption would not be includable in the gross income
(for federal income tax purposes) of holders thereof (except for
any holder who is a "substantial user" of the Facilities or a
"related person" as those terms are used and defined in the
Code), in which event only such portion shall be required to be
redeemed. Any such partial redemption shall be made within 180
days following the Determination of Taxability, at a redemption
price equal to the principal amount thereof plus accrued interest
to the redemption date, but without premium, at least in such
aggregate amount as is deemed necessary by Bond Counsel to cause
the interest on the remaining outstanding Bonds not to be
includable in gross income, as described above.
If this bond is redeemed as provided above in accordance
with the terms of the Indenture, then the failure by the Company
to observe or perform a covenant, agreement, representation, or
warranty in the Facilities Agreement which results in a
Determination of Taxability shall not constitute an Event of
Default under the Indenture or the Facilities Agreement, and
payment of the redemption price specified above shall constitute
full and complete payment and satisfaction to the holder of this
bond for any claims, damages, costs, or expenses arising out of
or based upon such failure by the Company.
If less than all of this bond is to be called for
redemption, the portion thereof to be redeemed shall be selected
as provided in the Indenture. If less than all of the principal
amount of this bond is to be redeemed, upon surrender of this
Bond to the Paying Agent, there will be issued to the REGISTERED
OWNER, without charge, a new bond or, at the option of the
REGISTERED OWNER, bonds for the unredeemed principal amount.
At least 30 days prior to the date selected for the
redemption of any of the Bonds prior to their scheduled maturity,
the Paying Agent shall cause a written notice of such redemption
to be mailed by the Paying Agent, postage prepaid, not less than
30 days prior to the date selected for redemption, to each
REGISTERED OWNER of the Bonds to be redeemed, addressed to such
REGISTERED OWNER at its address appearing on the registration
books maintained by the Paying Agent and to major securities
depositories, national bond rating agencies and bond information
services as at the time customarily receive such notices; but the
failure of the REGISTERED OWNER to receive any such notice, or
any defect therein or in the mailing thereof, shall not affect
the redemption of such Bonds. Such notice of redemption shall
identify the Bonds to be redeemed, the date selected for such
redemption, the places of payment of the redemption price of the
Bonds which are to be so redeemed and the redemption price at
which the Bonds will be redeemed.
Notice of redemption having been duly mailed, this bond, or
the portion called for redemption, will become due and payable on
the redemption date at the applicable redemption price and, if
moneys for the redemption have been deposited with the Trustee,
then, from and after the date fixed for redemption, no interest
on this bond (or such portion) will accrue. The Paying Agent
will not be required to make an exchange or transfer of this bond
(i) if this bond (or any portion hereof) has been selected for
redemption or (ii) within forty-five (45) days prior to the date
fixed for redemption if this bond (or any portion hereof) is
eligible to be selected for redemption.
With respect to any optional redemption of the Bonds, as
described above, unless moneys sufficient to pay the principal
of and premium, if any, and interest on the Bonds to be redeemed
shall have been received by the Trustee prior to the giving of
such notice of redemption, such notice shall state that said
redemption shall be conditional upon the receipt of such moneys
by the Trustee on or prior to the date fixed for such redemption.
If such moneys are not received, such notice shall be of no force
and effect, the Issuer shall not redeem such bonds and the Paying
Agent shall give notice, in the manner in which the notice of
redemption was given, that such moneys were not so received.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND IS
SUBJECT TO PURCHASE. IN EACH SUCH EVENT AND UPON DEPOSIT OF THE
PURCHASE PRICE WITH THE PAYING AGENT ON THE PURCHASE DATE, THIS
BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL CEASE TO BE
DEEMED TO BE OUTSTANDING UNDER THE INDENTURE, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED TO RECEIVE THE PURCHASE PRICE SO
DEPOSITED WITH THE PAYING AGENT ONLY UPON SURRENDER OF THIS BOND
TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person
or by its attorney duly authorized in writing, at the office of
the Paying Agent, upon surrender of this bond to the Paying Agent
for cancellation. Upon the transfer, a new Bond or Bonds in
Authorized Denominations of the same aggregate principal amount
will be issued to the transferee at the same office. No transfer
will be effective unless effected by such surrender and reissue.
This bond may also be exchanged at the office of the Paying Agent
for a new Bond or Bonds in Authorized Denominations of the same
aggregate principal amount without transfer to a new registered
owner. Exchanges and transfers will be without expense to the
owner except for applicable taxes or other governmental charges,
if any.
The Bonds in the Multiannual Mode are issuable only in fully
registered form in Authorized Denominations of five thousand
dollars ($5,000) or any integral multiple thereof.
The Issuer, the Trustee, the Paying Agent and the Company
may treat the REGISTERED OWNER as the absolute owner of this bond
for all purposes, notwithstanding any notice to the contrary.
This bond will not be valid until the Certificate of
Authentication has been signed by the Trustee or its duly
appointed agent for such purpose.
IN WITNESS WHEREOF, this bond has been signed with the
manual or facsimile signature of the President of the Issuer, and
countersigned with the manual or facsimile signature of the
Secretary of the Issuer, and the official seal of the Issuer has
been duly impressed, or placed in facsimile, on this bond, all as
of the first day of November, 1997.
LAKE CHARLES HARBOR AND TERMINAL
DISTRICT
(Seal) By:_____________________________________
President, Board of Commissioners
By:_____________________________________
Secretary, Board of Commissioners
Certificate of Authentication
This bond is one of the Bonds described in the Indenture.
FIRST NATIONAL BANK OF COMMERCE,
New Orleans, Louisiana,
as Trustee
Date of Authentication:
By:
________________________________________,
Authorized Signatory
or
By: ________________________,
as agent of the Trustee
By:
______________________________________
Authorized Signatory
Assignment
For value received the undersigned sells, assigns and
transfers this bond to
_________________________________________________________
(Name and Address of Assignee)
_________________________________________________________
_________________________________________________________
Social Security or Other Identifying Number of Assignee
and irrevocably appoints________________________________,
attorney-in-fact, to transfer it on the books kept for
registration of the bond, with full power of
substitution.
Dated:
Signature Guaranteed:
_____________________________________________
Bank, Trust Company or Brokerage Firm
By: _____________________________________
Authorized Signatory
NOTICE: Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee and the Paying Agent, which requirements
include membership or participation in STAMP or such
other "signature guarantee program" as may be
determined by the Trustee or the Paying Agent in
addition to, or in substitution for, STAMP, all in
accordance with the Securities and Exchange Act of
1934, as amended.
The following abbreviations, when used in the inscription on
the face of this bond, shall be construed as though they were
written out in full according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety _______ Custodian _______
JT TEN - asjoint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act_______________________
(State)
Additional abbreviations may also be used though not set
forth in the list above.
(b) Details of the Bonds.
(i) General. The Bonds shall be signed on behalf of
the Issuer by the manual or facsimile signatures of the
President and Secretary of the Board and the corporate seal
of the Issuer or a facsimile thereof shall be engraved or
otherwise reproduced thereon. The Certificate of
Authentication of the Trustee shall be manually signed by
the Trustee or on behalf of the Trustee by its duly
authorized agent.
In case any officer whose manual or facsimile signature
shall appear on any Bond shall cease to be such officer
before the delivery thereof, such manual or facsimile
signature shall nevertheless be valid and sufficient for all
purposes as if he or she had remained in office until after
such delivery.
The Bonds shall be issued in fully registered form,
without interest coupons and shall be numbered from F-1
upwards for Bonds in the Flexible Mode, D-1 upwards for
Bonds in the Daily Mode, W-1 upwards for Bonds in the Weekly
Mode and M-1 upwards for Bonds in the Multiannual Mode in
the order of their issuance, or in any other manner deemed
appropriate by the Paying Agent and the Trustee. In
addition, the Remarketing Agent, upon direction of the
Company, may require the Paying Agent to place appropriate
series designations on the Bonds, which designations may be
in the form of a letter or letters of the alphabet, a number
or numbers, any combination thereof or any other appropriate
designation to reflect differences among the Bonds,
including differences in Mode, Rate Periods, redemption
provisions, etc. The series of Bonds shall be denoted
Series 1997 and the forms of the Bonds shall be completed
where appropriate with such series designation. The Bonds
shall be in Authorized Denominations. The Bonds shall be
dated November 1, 1997, interest shall accrue on the Bonds
from the date of original delivery thereof and the Bonds
shall mature on November 1, 2027. The interest on the Bonds
until they come due shall be payable on the interest payment
dates specified therein.
The Bonds are subject to redemption as described in
Section 3.08 and in the forms of Flexible Mode Bond, Daily
Mode Bond, Weekly Mode Bond and Multiannual Mode Bond. At
any time that Bonds shall be supported by a Credit Facility,
the Bonds shall be printed with appropriate insertions as
provided in the forms of Bonds in Section 3.01(a). The
Bonds initially issued hereunder shall be supported by a
Credit Facility. The Bonds shall have such other terms and
provisions as are provided in the forms of the Flexible Mode
Bond, Daily Mode Bond, Weekly Mode Bond and Multiannual Mode
Bond.
(ii) Book-Entry System. The Bonds may be issued or
subsequently registered in the name of a Securities
Depository or a nominee therefor, and held in the custody of
the Securities Depository. In such event, a single bond or
master note certificate will be issued and delivered to the
Securities Depository for the Bonds, and neither the actual
purchasers of such Bonds (the "Beneficial Owners") nor the
Paying Agent will receive physical delivery of Bond
certificates except as provided herein, all transfers of
beneficial ownership interests will be made by book-entry
only, and no investor or other party purchasing, selling or
otherwise transferring beneficial ownership of Bonds will
receive, hold or deliver any Bond certificate. The Issuer,
the Company, the Trustee and the Paying Agent will recognize
the Securities Depository or its nominee as the Bondholder
for all purposes, including notices and voting.
The Issuer and the Trustee covenant and agree, so long
as The Depository Trust Company or any other Securities
Depository serves as Securities Depository for the Bonds, to
meet the requirements of The Depository Trust Company or
such other Securities Depository with respect to required
notices and other provisions of the letter of
representations or agreement executed with respect to such
Bonds.
The Issuer, the Trustee, the Paying Agent and the
Remarketing Agent may rely conclusively upon (i) a
certificate of the Securities Depository as to the identity
of the Participants in the Book-Entry System with respect to
the Bonds and (ii) a certificate of any such Participant as
to the identity of, and the respective principal amount of
Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial
ownership thereof is determined through the books of the
Securities Depository, the requirements in this Indenture of
holding, delivering or transferring such Bonds shall be
deemed modified to require the appropriate person to meet
the requirements of the Securities Depository with respect
to such actions to produce the same effect. Any provisions
hereof permitting or requiring delivery of such Bonds shall,
while such Bonds are in a Book-Entry System, be satisfied by
the notation on the books of the Securities Depository in
accordance with applicable state law.
The Trustee and the Issuer, at the direction and
expense of the Company and with the consent of the
Remarketing Agent, may from time to time appoint a
Securities Depository or a successor thereto and enter into
a letter of representation or other agreement with such
Securities Depository to establish procedures with respect
to the Bonds. Any Securities Depository shall be a
"clearing agency" registered under Section 17A of the
Securities Exchange Act of 1934, as amended.
Neither the Issuer, the Company, the Trustee, the
Paying Agent nor the Remarketing Agent will have any
responsibility or obligation to any Securities Depository,
any Participants in the Book-Entry System or the Beneficial
Owners with respect to (i) the accuracy of any records
maintained by the Securities Depository or any Participant;
(ii) the payment by the Securities Depository or by any
Participant of any amount due to any Beneficial Owner in
respect of the principal amount or redemption or purchase
price of, or interest on, any Bonds; (iii) the delivery of
any notice by the Securities Depository or any Participant;
(iv) the selection of the Beneficial Owners to receive
payment in the event of any partial redemption of the Bonds;
or (v) any other action taken by the Securities Depository
or any Participant.
Bond certificates are required to be delivered and
registered in the name of the Beneficial Owner, under the
following circumstances:
(A) A Securities Depository determines to
discontinue providing its service with respect to the
Bonds and no successor Securities Depository is
appointed as described above; or
(B) The Company determines not to continue the
Book-Entry System through a Securities Depository.
If, at any time, the Securities Depository ceases to
hold the Bonds, thereafter all references herein to the
Securities Depository shall be of no further force or
effect.
None of the Issuer, the Company, the Paying Agent or
the Trustee will have any responsibility or obligation to
any Participant for the Book-Entry System or to the
Beneficial Owners with respect to the records delivered to
the Issuer and the Trustee in order to accomplish the
delivery and registration in the names of the Beneficial
Owners.
(c) Flexible Mode.
(i) Determination of Flexible Rates. The Remarketing
Agent shall determine the Flexible Rates as provided in the
form of Flexible Bonds and shall notify the Paying Agent
and the Company thereof by facsimile or by telephone not
later than 11:15 A.M. on the Effective Date, and, if by
telephone, promptly confirmed in writing (including by
facsimile). The Paying Agent shall give prompt notice of
the Flexible Rates to the Trustee. Each determination and
redetermination of the Flexible Rate shall be conclusive and
binding on the Issuer, the Trustee, the Paying Agent, the
Bank, the Company and the Bondholders. If for any reason
the Remarketing Agent fails to determine the Flexible Rate
or Rate Period for any Bond while in the Flexible Mode, or
if for any reason such manner of determination shall be
determined to be invalid or unenforceable, that Bond, until
changed as provided in the form of Flexible Bond in Section
3.01(a) hereof, shall be deemed to be in the Daily Mode and
the Daily Rate shall be equal to the lesser of (i) the BMA
Municipal Index or (ii) the Maximum Interest Rate.
In determining the Flexible Rate and remarketing Bonds
in the Flexible Mode, the Remarketing Agent shall, in
addition to the constraints set forth in Section 3.01(a),
(1) not offer Rate Periods greater than the maximum number
of days of interest coverage under the Credit Facility, if
any, at the Maximum Interest Rate less twenty (20) days and
not offer Rate Periods extending beyond the Stated
Expiration Date of the Credit Facility, if any, less five
(5) days, (2) not offer Rate Periods applicable to Bonds to
be converted extending beyond the day preceding any
scheduled conversion of the Bonds to any other Mode or the
final maturity of the Bonds, and (3) follow any written
directions of the Company Representative, not inconsistent
with the preceding clauses (1) and (2), as to the Rate
Periods and interest rates to be made available. The
Company and the Remarketing Agent shall cooperate to ensure
compliance with this requirement.
(ii) Conversions from the Flexible Mode. The Bonds in
the Flexible Mode or any portion of such Bonds may be
converted at the election of the Company from the Flexible
Mode to the Daily Mode, the Weekly Mode or the Multiannual
Mode as provided in the form of Flexible Bonds, so long as
no Default hereunder exists as certified to the Trustee in
writing by the Company Representative. If the Bonds that
are to be converted to a different Mode are to be supported
by a Credit Facility in such different Mode, no such
conversion shall be effective unless the Company shall have
delivered to the Paying Agent by 10:00 A.M. on the
Conversion Date a Credit Facility in the minimum required
face amount for the applicable Mode as provided in Section
3.15 and with a Stated Expiration Date not earlier than (i)
one year from the Conversion Date in the case of Bonds
converted to the Daily Mode or Weekly Mode and (ii) five (5)
Business Days after the end of the Rate Period in case of
Bonds in the Multiannual Mode. Written notice of a
conversion of Bonds from the Flexible Mode shall be given by
the Company to the Issuer, the Trustee, the Paying Agent,
the Bank, the Remarketing Agent and S&P not fewer than
twenty-five (25) nor more than one hundred and twenty (120)
days before the Conversion Date, which date shall be
specified by the Company in such notice and shall not be
earlier than the day following the expiration of the Rate
Period with the longest remaining term then in effect for
the Bonds to be converted. Such notice shall also include
the Company's election whether or not the converted Bonds
are to be supported by a Credit Facility.
Each notice required to be given under the preceding
paragraph to the Issuer of a conversion shall be given by
providing telephonic notice of such change to the Issuer
Representative. Unless the conversion is rejected by the
Issuer within one hour after such telephonic notice, such
change shall become effective as otherwise provided herein.
Notwithstanding the foregoing, if the conditions to
conversion to another Mode established by the preceding
paragraphs are not met by 10:00 A.M. on the Conversion Date,
the Paying Agent shall deem the proposed conversion to have
failed and shall immediately notify the Company, the Trustee
and the Remarketing Agent. In such event (i) if the Bonds
to be converted are not supported by a Credit Facility, the
Company shall by 3:00 P.M. on the proposed Conversion Date
deliver to the Paying Agent sufficient funds to pay the
Purchase Price on the Bonds which were to be converted and
(ii) if the Bonds to be converted are supported by a Credit
Facility, the Paying Agent, by 11:00 A.M. on the proposed
Conversion Date, shall draw on the Credit Facility an amount
which is sufficient to pay the Purchase Price on all such
Bonds which were to have been converted. In no event shall
the failure of Bonds to be converted to another Mode for any
reason be deemed to be, in and of itself, a Default or Event
of Default under this Indenture, so long as the Purchase
Price of all Bonds required to be purchased is made
available as provided above.
(iii) Mandatory Tender for Purchase. On each
Effective Date, Bonds in the Flexible Mode are subject to
mandatory tender for purchase and shall be purchased as
provided in the form of Flexible Bonds.
(d) Daily Mode.
(i) Determination of Daily Rates. The Remarketing
Agent shall determine the Daily Rate as provided in the form
of Daily Bonds and shall notify the Paying Agent and the
Company thereof by facsimile or by telephone not later than
9:00 A.M. on each Business Day, and, if by telephone,
promptly confirmed in writing (including by facsimile). The
Paying Agent shall give prompt notice of the Daily Rate to
the Trustee. Each determination and redetermination of the
Daily Rate shall be conclusive and binding on the Issuer,
the Trustee, the Paying Agent, the Bank, the Company and the
Bondholders. The Daily Rate for a date which is not a
Business Day shall be the Daily Rate in effect on the
Business Day preceding such date. If for any reason the
Remarketing Agent fails to determine the Daily Rate or if
for any reason such manner of determination shall be
determined to be invalid or unenforceable, the Daily Rate
shall be equal to the lesser of (i) the BMA Municipal Index
or (ii) the Maximum Interest Rate.
(ii) Conversions from Daily Mode. The Bonds in the
Daily Mode or any portion of such Bonds may be converted at
the election of the Company on any Business Day from the
Daily Mode to the Weekly Mode, the Flexible Mode or the
Multiannual Mode, as provided in the form of Daily Bonds,
so long as no Default hereunder exists as certified to the
Trustee in writing by a Company Representative. If the
Bonds that are to be converted to a different Mode are to be
supported by a Credit Facility in such different Mode, no
such conversion shall be effective unless the Company shall
have delivered to the Paying Agent by 10:00 A.M. on the
Conversion Date a Credit Facility in the minimum required
face amount for the applicable Mode as provided in Section
3.15 and with a Stated Expiration Date not earlier than (i)
one year from the Conversion Date in the case of Bonds
converted to the Flexible Mode or the Weekly Mode and (ii)
five (5) Business Days after the end of the Rate Period in
the case of Bonds in the Multiannual Mode. Written notice
of a conversion of Bonds from the Daily Mode shall be given
by the Company to the Issuer, the Trustee, the Bank, the
Paying Agent, the Remarketing Agent and S&P not fewer than
twenty-five (25) nor more than sixty (60) days before the
Conversion Date, which date shall be specified by the
Company in such notice. Such notice shall also include the
Company's election whether or not the converted Bonds are to
be supported by a Credit Facility. Notice of a conversion
of Bonds from the Daily Mode and, if applicable, the
mandatory tender of Bonds for purchase on such Conversion
Date shall be given to the owners of such Bonds as provided
in Section 3.01(d)(iv)(B) and the form of Daily Bonds.
Each notice required to be given under the preceding
paragraph to the Issuer of a conversion shall be given by
providing telephonic notice of such change to the Issuer
Representative. Unless the conversion is rejected by the
Issuer within one hour after such telephonic notice, such
change shall become effective as otherwise provided herein.
Notwithstanding the foregoing, if the conditions to
conversion to another Mode established by the preceding
paragraph are not met by 10:00 A.M. on the Conversion Date,
the Paying Agent shall deem the proposed conversion to have
failed and if the proposed conversion was to a Mode other
than the Weekly Mode, the Paying Agent shall immediately
notify the Company, the Trustee and the Remarketing Agent,
and the Bonds shall be subject to mandatory tender as
provided in Section 3.01(d)(iv)(B). In such event (i) if
the Bonds to be converted are not supported by a Credit
Facility, the Company shall by 3:00 P.M. on the proposed
Conversion Date deliver to the Paying Agent sufficient funds
to pay the Purchase Price on the Bonds which were to be
converted and (ii) if the Bonds to be converted are
supported by a Credit Facility, the Paying Agent, by 11:00
A.M. on the proposed Conversion Date, shall draw on the
Credit Facility an amount which is sufficient to pay the
Purchase Price on all such Bonds which were to have been
converted. In no event shall the failure of Bonds to be
converted to another Mode for any reason be deemed to be, in
and of itself, a Default or Event of Default under this
Indenture, so long as the Purchase Price of all Bonds
required to be purchased is made available as provided
above.
(iii) Bondholders' Option to Tender Bonds in Daily
Mode. Bonds in the Daily Mode are subject to tender, at
the election of the owner thereof, in the manner and subject
to the limitations described in the form of Daily Bonds.
The owners of Tendered Bonds shall receive on the Delivery
Date 100% of the principal amount of the Tendered Bonds plus
accrued interest to the Purchase Date, provided that if the
Purchase Date is an interest payment date, accrued interest
shall be paid separately to the registered owner of such
Bond as it appears on the registration books maintained by
the Paying Agent on the close of business on the record date
in respect of such interest payment date, and not as part of
the Purchase Price on such date. The purchase of Tendered
Bonds shall not extinguish the debt represented by such
Bonds which shall remain Outstanding and unpaid under this
Indenture.
The Paying Agent shall accept all Tendered Bonds
properly tendered to it for purchase as provided in the form
of Daily Bonds and in this Section 3.01(d)(iii); provided,
however, that, unless the Bonds are supported by a Credit
Facility, the Paying Agent shall not accept any Tendered
Bonds and the Purchase Price therefor shall not be paid if
at the time of tender or on the Purchase Date the principal
of the Bonds shall have been accelerated pursuant to Section
6.02 and such acceleration shall not have been annulled.
The Bondholder's Notice delivered to the Paying Agent
as provided in the form of Daily Bonds prior to the Purchase
Date of Tendered Bonds shall contain the information
specified in the form of Daily Bond.
As soon as practicable but not later than 10:00 A.M. on
the date of the receipt of a Bondholder Election Notice with
respect to an optional tender of Bonds, the Paying Agent
shall notify the Remarketing Agent, the Bank and the Trustee
by telephone, promptly confirmed in writing, of the amount
of Tendered Bonds and the specified Purchase Date.
(iv) Events Requiring Mandatory Tender of Daily Bonds.
(A) Expiration of Credit Facility. If Bonds in
the Daily Mode are supported by a Credit Facility, such
Bonds in the Daily Mode are subject to mandatory tender
for purchase as provided in the form of Daily Bonds in
connection with the expiration or termination
(including a substitution or replacement) of the Credit
Facility unless at least 25 days prior to the second
Business Day preceding the Expiration Date of the then
current Credit Facility, the Paying Agent has received
written notice that such Credit Facility has been
extended. At least fifteen (15) days prior to the
mandatory tender date, the Paying Agent shall give
notice to the Trustee and the Bondholders of the
mandatory tender of Bonds.
(B) Change in Mode. In the event that Bonds in
the Daily Mode are converted to another Mode other than
the Weekly Mode, such Bonds are subject to mandatory
tender for purchase upon not less than fifteen (15)
days' prior written notice from the Paying Agent to the
Bondholders as provided in the form of Daily Bonds,
which notice shall state that the Bonds are subject to
mandatory tender for purchase on the Conversion Date.
(C) Substitution or Replacement of Credit
Facility. If Bonds in the Daily Mode are supported by
a Credit Facility, such Bonds in the Daily Mode are
subject to mandatory tender for purchase on the date of
substitution or replacement of the then current Credit
Facility as provided in the form of Daily Bonds in
connection with the substitution or replacement of the
Credit Facility in accordance with Section 3.15(a). At
least fifteen (15) days prior to the mandatory tender
date, the Paying Agent shall give notice to the Trustee
and the Bondholders of the mandatory tender of Bonds.
(e) Weekly Mode.
(i) Determination of Weekly Rates. The Remarketing
Agent shall determine the Weekly Rate as provided in the
form of Weekly Bonds and shall notify the Paying Agent and
the Company thereof by facsimile or by telephone not later
than 2:00 P.M. on the Business Day preceding the Effective
Date, and, if by telephone, promptly confirmed in writing
(including by facsimile). The Paying Agent shall give
prompt notice of the Weekly Rate to the Trustee. Each
determination and redetermination of the Weekly Rate shall
be conclusive and binding on the Issuer, the Trustee, the
Paying Agent, the Bank, the Company and the Bondholders. If
for any reason the Remarketing Agent fails to determine the
Weekly Rate or if for any reason such manner of
determination shall be determined to be invalid or
unenforceable, the Rate Period for the Bonds shall be deemed
to be the Daily Rate Period and the Daily Rate shall be
equal to the lesser of (i) the BMA Municipal Index or (ii)
the Maximum Interest Rate.
(ii) Conversions from Weekly Mode. The Bonds in the
Weekly Mode or any portion of such Bonds may be converted at
the election of the Company on any Business Day from the
Weekly Mode to the Daily Mode, the Flexible Mode or the
Multiannual Mode as provided in the form of Weekly Bonds, so
long as no Default hereunder exists as certified to the
Trustee in writing by a Company Representative. If the
Bonds that are to be converted to a different Mode are to be
supported by a Credit Facility in such different Mode, no
such conversion shall be effective unless the Company shall
have delivered to the Paying Agent by 10:00 A.M. on the
Conversion Date a Credit Facility in the minimum required
face amount for the applicable Mode as provided in Section
3.15 and with a Stated Expiration Date not earlier than (i)
one year from the Conversion Date in the case of Bonds
converted to the Flexible Mode or the Daily Mode and (ii)
five (5) Business Days after the end of the Rate Period in
the case of Bonds in the Multiannual Mode. Written notice
of a conversion of Bonds from the Weekly Mode shall be given
by the Company to the Issuer, the Trustee, the Bank, the
Paying Agent, the Remarketing Agent and S&P not fewer than
twenty-five (25) nor more than sixty (60) days before the
Conversion Date, which date shall be specified by the
Company in such notice. Such notice shall also include the
Company's election whether or not the converted Bonds are to
be supported by a Credit Facility. Notice of a conversion
of Bonds from the Weekly Mode and, if applicable, the
mandatory tender of Bonds for purchase on such Conversion
Date, shall be given to the owners of such Bonds as provided
in Section 3.01(e)(iv)(B) and the form of Weekly Bonds.
Each notice required to be given under the preceding
paragraph to the Issuer of a conversion shall be given by
providing telephonic notice of such change to the Issuer
Representative. Unless the conversion is rejected by the
Issuer within one hour after such telephonic notice, such
change shall become effective as otherwise provided herein.
Notwithstanding the foregoing, if the conditions to
conversion to another Mode established by the preceding
paragraph are not met by 10:00 A.M. on the Conversion Date,
the Paying Agent shall deem the proposed conversion to have
failed and if the proposed conversion was to a Mode other
than the Daily Mode, the Paying Agent shall immediately
notify the Company, the Trustee and the Remarketing Agent,
and the Bonds shall be subject to mandatory tender as
provided in Section 3.01(e)(iv)(B). In such event (i) if
the Bonds to be converted are not supported by a Credit
Facility, the Company shall by 3:00 P.M. on the proposed
Conversion Date deliver to the Paying Agent sufficient funds
to pay the Purchase Price on the Bonds which were to be
converted and (ii) if the Bonds to be converted are
supported by a Credit Facility, the Paying Agent, by 11:00
A.M. on the proposed Conversion Date, shall draw on the
Credit Facility an amount which is sufficient to pay the
Purchase Price on all such Bonds which were to have been
converted. In no event shall the failure of Bonds to be
converted to another Mode for any reason be deemed to be, in
and of itself, a Default or Event of Default under this
Indenture, so long as the Purchase Price of all Bonds
required to be purchased is made available as provided
above.
(iii) Bondholders' Option to Tender Bonds in Weekly
Mode. Bonds in the Weekly Mode are subject to tender, at
the election of the owner thereof, in the manner and subject
to the limitations described in the form of Weekly Bonds.
The owners of Tendered Bonds shall receive on the Delivery
Date 100% of the principal amount of the Tendered Bonds plus
accrued interest to the Purchase Date, provided that if the
Purchase Date is an interest payment date, accrued interest
shall be paid separately to the registered owner of such
Bond as it appears on the registration books maintained by
the Paying Agent on the close of business on the record date
in respect of such interest payment date, and not as part of
the Purchase Price on such date. The purchase of Tendered
Bonds shall not extinguish the debt represented by such
Bonds which shall remain Outstanding and unpaid under this
Indenture.
The Paying Agent shall accept all Tendered Bonds
properly tendered to it for purchase as provided in the form
of Weekly Bonds and in this Section 3.01(e)(iii); provided,
however, that, unless the Bonds are supported by a Credit
Facility, the Paying Agent shall not accept any Tendered
Bonds and the Purchase Price therefor shall not be paid if
at the time of tender or on the Purchase Date the principal
of the Bonds shall have been accelerated pursuant to Section
6.02 and such acceleration shall not have been annulled.
The Bondholder's Notice delivered to the Paying Agent
as provided in the form of Weekly Bonds prior to the
Purchase Date of Tendered Bonds shall contain the
information specified in the form of Weekly Bond.
As soon as practicable after receipt of a Bondholder
Election Notice with respect to an optional tender of Bonds,
the Paying Agent shall notify the Remarketing Agent, the
Bank and the Trustee by telephone of the amount of Tendered
Bonds and the specified Purchase Date.
(iv) Events Requiring Mandatory Tender of Weekly Bonds.
(A) Expiration of Credit Facility. If Bonds in
the Weekly Mode are supported by a Credit Facility,
such Bonds in the Weekly Mode are subject to mandatory
tender for purchase as provided in the form of Weekly
Bonds in connection with the expiration or termination
(including a substitution or replacement) of the Credit
Facility unless at least 25 days prior to the second
Business Day preceding the Expiration Date of the then
current Credit Facility, the Paying Agent has received
written notice that such Credit Facility has been
extended. At least fifteen (15) days prior to the
mandatory tender date, the Paying Agent shall give
notice to the Trustee and the Bondholders of the
mandatory tender of Bonds.
(B) Change in Mode. In the event that Bonds in
the Weekly Mode are converted to another Mode other
than the Daily Mode, such Bonds are subject to
mandatory tender for purchase upon not less than
fifteen (15) days' prior written notice from the Paying
Agent to the Bondholders as provided in the form of
Weekly Bonds, which notice shall state that the Bonds
are subject to mandatory tender for purchase on the
Conversion Date.
(C) Substitution or Replacement of Credit
Facility. If Bonds in the Weekly Mode are supported by
a Credit Facility, such Bonds in the Weekly Mode are
subject to mandatory tender for purchase on the date of
substitution or replacement of the then current Credit
Facility as provided in the form of Weekly Bonds in
connection with the substitution or replacement of the
Credit Facility in accordance with Section 3.15(a). At
least fifteen (15) days prior to the mandatory tender
date, the Paying Agent shall give notice to the Trustee
and the Bondholders of the mandatory tender of Bonds.
(f) Multiannual Mode.
(i) Determination of Multiannual Rate. The
Remarketing Agent shall determine the Multiannual Rate as
provided in the form of Multiannual Bonds and shall notify
the Paying Agent and the Company thereof by facsimile or by
telephone not later than 1:00 P.M. two (2) Business Days
preceding the Effective Date, and, if by telephone, promptly
confirmed in writing (including by facsimile). The Paying
Agent shall give prompt notice of the Multiannual Rate to
the Trustee. Each determination and redetermination of the
Multiannual Rate shall be conclusive and binding on the
Issuer, the Trustee, the Paying Agent, the Bank, if
applicable, the Company and the Bondholders. If for any
reason the Remarketing Agent fails to determine the
Multiannual Rate or if for any reason such manner of
determination shall be determined to be invalid or
unenforceable, the Rate Period for the Bonds shall be deemed
to be the Daily Rate Period and the Daily Rate shall be
equal to the lesser of (i) the BMA Municipal Index or (ii)
the Maximum Interest Rate.
(ii) Conversions from Multiannual Mode and Changes of
Rate Period. The Bonds in the Multiannual Mode or any
portion of such Bonds may be converted at the election of
the Company on and only on the Purchase Date relating to
each such Bond from the Multiannual Mode to the Flexible
Mode, the Daily Mode or the Weekly Mode and may be converted
within the Multiannual Mode to a new Rate Period with the
same or a different length as provided in the form of
Multiannual Bonds, so long as no Default hereunder exists as
certified to the Trustee in writing by a Company
Representative. If the Bonds that are to be converted to a
different Mode or to another Rate Period within the
Multiannual Mode are to be supported by a Credit Facility in
such different Mode, no such conversion shall be effective
unless the Company shall have delivered to the Paying Agent
by 10:00 A.M. on the Conversion Date a Credit Facility in
the minimum required face amount for the applicable Mode as
provided in Section 3.15 and with a Stated Expiration Date
not earlier than (i) one year from the Conversion Date in
the case of Bonds converted to the Flexible Mode or the
Daily Mode and (ii) five (5) Business Days after the end of
the Rate Period in the case of Bonds in the Multiannual
Mode. Written notice of a change in Mode or Rate Period
within the Multiannual Mode shall be given by the Company to
the Issuer, the Trustee, the Paying Agent, the Remarketing
Agent, S&P and the Bank, if applicable, not fewer than
twenty-five (25) nor more than sixty (60) days before the
Conversion Date. Such notice shall also include the
Company's election whether or not the converted Bonds are to
be supported by a Credit Facility.
Each notice required to be given under the preceding
paragraph to the Issuer of a conversion shall be given by
providing telephonic notice of such change to the Issuer
Representative. Unless the conversion is rejected by the
Issuer within one hour after such telephonic notice, such
change shall become effective as otherwise provided herein.
Notwithstanding the foregoing, if the conditions to
conversion to another Mode or a new Rate Period within the
Multiannual Mode established by the preceding paragraphs are
not met by 10:00 A.M. on the Conversion Date, the Paying
Agent shall deem the proposed conversion to have failed and;
if the proposed conversion was to have been to a Mode other
than the Daily Mode, the Paying Agent shall immediately
notify the Company, the Trustee and the Remarketing Agent.
In such event, (i) if the Bonds to be converted are not
supported by a Credit Facility, the Company shall by 3:00
P.M. on the proposed Conversion Date deliver to the Paying
Agent sufficient funds to pay the Purchase Price on the
Bonds which were to be converted and (ii) if the Bonds to be
converted are supported by a Credit Facility, the Paying
Agent, by 12:00 noon on the proposed Conversion Date, shall
draw on the Credit Facility an amount which is sufficient to
pay the Purchase Price on all such Bonds which were to have
been converted. In no event shall the failure of Bonds to
be converted to another Mode for any reason be deemed to be,
in and of itself, a Default or Event of Default under this
Indenture, so long as the Purchase Price of all Bonds
required to be purchased is made available as provided
above.
(iii) Mandatory Tender for Purchase. On each
Effective Date, Bonds in the Multiannual Mode are subject to
mandatory tender for purchase and shall be purchased as
provided in the form of Multiannual Bond.
(iv) Specification of Redemption Periods and Prices.
The Company may, in its notice of conversion pursuant to
Sections 3.01(c)(ii), 3.01(d)(ii), 3.01(e)(ii) and
3.01(f)(ii), specify periods during which Bonds may be
redeemable and prices at which Bonds may be redeemed at the
option of the Company that differ from those set forth in
tabular form in the form of Multiannual Bond set forth in
Section 3.01(a)(v) and such alternative redemption periods
and prices shall take effect unless the Issuer rejects the
conversion or accepts the conversion but rejects the
alternative redemption periods and prices.
(g) Favorable Opinion of Tax Counsel Required for Certain
Conversions. Notwithstanding anything in this Indenture to the
contrary, the Company must deliver to the Issuer, the Trustee and
the Remarketing Agent an opinion of counsel of nationally
recognized standing in matters relating to the exclusion of
interest from gross income on obligations issued by or on behalf
of states and their political subdivisions whenever there is a
change from a period during which the interest rate on the Bonds
is set at intervals of 365 days or less to a period during which
the interest rate on the Bonds is set at intervals in excess of
365 days, or vice versa or to a Multiannual Period for which the
Company has specified redemption periods or prices pursuant to
Section 3.01(f)(iv). Such opinion must be to the effect that the
action proposed to be taken is permitted by the laws of the State
and by this Indenture and will not adversely affect any exclusion
from gross income for federal income tax purposes of interest on
the Bonds. The delivery of such opinion by the Company to the
Issuer, the Trustee and the Remarketing Agent shall constitute a
condition precedent to the change in the interest period, as
described above, except that the failure of the Company to so
deliver such opinion (after requesting such opinion from
qualified counsel) shall not prevent the conversion from any Mode
to the Daily Rate upon the failure to meet the conditions
precedent to a proposed conversion, as provided in the forms of
the Weekly Bonds, the Flexible Bonds and the Multiannual Bonds;
provided that in the absence of such opinion (when required as
provided in this Section 3.01(g)), Bonds so converted to the
Daily Rate shall not be remarketed by the Remarketing Agent
unless either (i) such opinion is subsequently delivered by the
Company prior to the remarketing or (ii) the Remarketing Agent
discloses in writing to the purchaser of such Bonds that the
Company has not so delivered such opinion.
(h) Partial Conversions. The Bonds may be converted in
whole or in part to the Flexible Mode, the Daily Mode, the Weekly
Mode or any Rate Period in the Multiannual Mode upon compliance
with the conditions set forth in this Indenture. In the event
the Bonds are in (or are to be converted to) more than one Mode,
the provisions of this Indenture relating to Bonds in a
particular Mode (or to be converted to a particular Mode) shall
apply only to the Bonds in (or to be converted to) such Mode and,
where necessary or appropriate, any reference in this Indenture
to the Bonds shall be construed to mean the Bonds in (or to be
converted to) such Mode and any reference to Credit Facility or
Bank shall be construed to mean the Credit Facility supporting
the Bonds in (or to be converted to) such Mode and the Bank
issuing that Credit Facility.
(i) Cancellation and Destruction of Bonds. All Bonds paid
or redeemed, either at or before maturity, shall be delivered to
the Paying Agent when such payment or redemption is made, and
such Bonds, together with all Bonds purchased by the Paying Agent
and all Bonds surrendered in any exchanges or transfers, shall
thereupon be promptly canceled. All Bonds acquired and owned by
the Company and delivered to the Paying Agent for cancellation
shall be deemed paid and shall be promptly canceled. Bonds so
canceled may at any time be cremated or otherwise disposed of at
the discretion of the Paying Agent, which, in any such event,
shall execute a certificate of cremation, destruction or other
disposition in duplicate by the signature of one of its
authorized signatories describing the Bonds so cremated,
otherwise destroyed or otherwise disposed of, and one such
executed certificate shall be filed with the Company and the
other such executed certificate shall be retained by the Paying
Agent. Under no circumstances shall the Paying Agent be required
to cremate or destroy any Bonds. The Paying Agent shall provide
written notice to the Trustee, S&P, if the Bonds are then rated
by S&P, of the final payment or redemption of any of the Bonds,
either at or before maturity, upon cancellation of any such
Bonds.
(j) Replacement of Bonds. Replacement Bonds shall be
issued pursuant to applicable law and the reasonable requirements
of the Paying Agent and Trustee as a result of the destruction,
theft, loss or mutilation of the Bonds provided that: (i) the
costs of a replacement shall be paid or reimbursed by the
applicant, who shall provide indemnification in an amount
satisfactory to the Issuer, the Trustee, the Paying Agent, the
Remarketing Agent and the Company against all liability and
expense in connection therewith, (ii) in the case of a mutilated
Bond the Bondholder shall surrender the Bond to the Paying Agent
for cancellation and (iii) in the case of a lost, stolen or
destroyed Bond, the Bondholder shall provide evidence,
satisfactory to the Paying Agent, of the ownership and the loss,
theft or destruction of the affected Bond.
Upon compliance with the foregoing, a new Bond of like
series designation, tenor and denomination, executed by the
Issuer, shall be authenticated by the Paying Agent and delivered
to the Bondholder, all at the expense of the Bondholder to whom
the substitute Bond is delivered. Notwithstanding the foregoing,
the Paying Agent shall not be required to authenticate and
deliver any substitute for a Bond which has been called for
redemption or which has matured or is about to mature and, in any
such case, the principal or redemption price then due or becoming
due shall be paid by the Paying Agent in accordance with the
terms of the mutilated, lost, stolen or destroyed Bond without
substitution therefor.
(k) Interest on Overdue Principal. Any overdue principal
of any Bond shall bear interest after its maturity or
acceleration at the last interest rate in effect on that Bond.
Section 3.02. Construction Fund; Payments from Construction
Fund.
(a) The Construction Fund, consisting of two accounts, one
of which is the "Bond Proceeds Account" and the other being the
"Facilities Construction Account," is hereby created. The Issuer
shall deposit all of the proceeds from the sale and delivery of
the Bonds into the Bond Proceeds Account. The amount of such
proceeds, if any, attributable to accrued interest on the Bonds
shall be transferred by the Trustee, upon written direction of
the Issuer, and deposited into the Debt Service Fund and shall be
disbursed by the Trustee upon written instruction as provided
herein to pay interest on the Bonds. Amounts on deposit in the
Bond Proceeds Account after the transfer, if any, required by the
immediately preceding sentence shall be drawn on by the Issuer by
written direction to the Trustee and used by the Issuer (1) to
make the initial payment from the Bond Proceeds Account to the
Company to reimburse it for moneys previously expended as
provided in the Facilities Agreement and Section 3.02(c) hereof,
and (2) to pay the Costs of Issuance of the Bonds (but not costs
of issuance, including underwriters' discount, if any, in excess
of two percent of the proceeds from the sale of the Bonds) when
due and payable. The remainder of the funds on deposit in the
Bond Proceeds Account after application as provided for in the
immediately preceding sentence shall be transferred by the
Trustee, upon written direction of the Issuer, and deposited into
the Facilities Construction Account. Upon receiving written
instructions from the Company or the Issuer as provided herein,
the Trustee on behalf of the Issuer shall disburse funds from the
Facilities Construction Account to the Company for payment of the
cost of acquisition of the Facilities.
(b) The Issuer hereby gives its express written authority
to the Company to direct the investment of moneys on deposit in
the Construction Fund by the Trustee as hereinafter provided.
The Issuer hereby finds and determines that the investment of any
money held as part of the Construction Fund in obligations
hereinafter permitted will yield the highest possible rate of
return while providing necessary protection of the principal
consistent with the needs for such moneys under this Indenture
and the Facilities Agreement. Any moneys held as part of the
Construction Fund shall be invested or reinvested by the Trustee
in the same manner as provided in this Indenture with respect to
moneys held as part of the Debt Service Fund. The proceeds of
any investments made with moneys in the respective accounts
within the Construction Fund shall be credited to each such
account.
(c) Concurrently with, or as soon as practicable after, the
delivery to the Trustee by the Issuer of the proceeds from the
sale and delivery of the Bonds, the Trustee shall make an initial
disbursement, if requested by the Company in the manner described
below for disbursements from the Construction Fund, to reimburse
the Company for any cost of acquisition, construction and
improvement of the Facilities, as defined and provided in this
Indenture, paid by, or provided to the Issuer by, the Company
prior to such date of delivery. The Trustee shall make such
initial disbursement, if requested, and shall make any subsequent
disbursements, from the Facilities Construction Account of the
Construction Fund for any Cost of Construction as defined and
provided in this Indenture, from time to time upon receipt by the
Trustee of a request of the Company signed by the Company
Representative, in the form attached hereto as Exhibit A, a copy
of which shall concurrently be delivered to the Issuer. Such
request shall be accompanied by a bill or statement of account
for such obligation.
(d) The Trustee and the Issuer shall rely fully on any such
request and certificate delivered pursuant to this Section and
shall not be required to make any investigation in connection
therewith; provided, however, that within a reasonable time after
the submission of any such request and certificate and before or
after disbursement of the amounts requested, the duly authorized
representatives of the Issuer may inspect the invoices and
statements which are the basis for disbursement requested by the
Company. The Issuer may conduct a final audit prior to closing
out the Construction Fund or disposing of any surplus therein as
provided in Subsection (f) hereof. Such audit shall be conducted
by the Issuer's auditors or accountants, and the payment of
expense of any such audit shall be paid from a disbursement by
the Trustee from the Construction Fund. Such audit shall contain
a detailed statement concerning the receipt and disposition of
all money deposited into the Construction Fund, and an asset
statement or balance sheet for the Construction Fund. A copy of
such audit shall be filed with the Issuer, the Trustee and the
Company. If amounts disbursed by the Trustee with respect to any
portion of the Facilities exceed the cost thereof, the Company
shall promptly repay such over disbursement into the Construction
Fund.
(e) As directed in writing by the Issuer and subject to the
written approval of the Company Representative, the Trustee shall
disburse to the Issuer out of the Bond Proceeds Account of the
Construction Fund all of the Issuer's actual expenses and Costs
of Issuance of such Bonds, including, without limitation,
printing and engraving expenses, the fees and expenses of
accountants, financial advisors and attorneys, and, to the
Trustee, the initial fees and expenses of the Trustee. The
reasonable costs and expenses related to the investment of the
Construction Fund shall be paid from the Construction Fund.
(f) If, upon the completion of the Facilities (as evidenced
by a completion certificate signed by the Company and delivered
to the Trustee), there shall be any surplus funds remaining in
the Construction Fund not required to provide for the payment of
the costs of acquisition, construction and improvements of the
Facilities, such funds shall, upon the written request of the
Company Representative, either (1) be used by the Trustee to
purchase Bonds at any reasonable price as determined by the
Company Representative, which price, however, shall not exceed
the principal amount thereof plus accrued interest thereon; (2)
be applied toward the costs of acquisition, construction and
improvement of additional dock and wharf facilities in the
Issuer; (3) be used for any combination of (1) and (2) above; or
(4) if the Bonds are then subject to redemption, any of such
funds not to be used in a manner set forth in (1) or (2) above
shall be applied to redeem Bonds in the largest principal amount
then subject to redemption that does not exceed the amount of
such funds (whether or not the Trustee shall have received any
direction from the Company with respect thereto); provided that
prior to any such application under (2) above the Issuer and the
Trustee shall have been furnished with an unqualified opinion of
Bond Counsel, to the effect that the acquisition or construction
of such dock and wharf facilities will constitute proper
corporate purposes of the Issuer under the Act, that such
facility or facilities constitute a facility which the Issuer is
authorized to finance through the issuance of its revenue bonds
under the Act and this Indenture, and that the Facilities
Agreement is amended, if and as necessary, to add such project to
the definition of the term "Facilities" as used in the Facilities
Agreement and that the acquisition and construction of such dock
and wharf facilities will not adversely affect the tax-exempt
status of the Bonds. Any of such surplus funds in the
Construction Fund not to be applied for the purposes set forth in
(1), (2) or (3) above or which may not be applied to redeem Bonds
in accordance with clause (4) above shall be deposited in an
escrow account (outside the Debt Service Fund) and moneys on
deposit in such escrow account shall be applied to pay the
principal of Bonds upon redemption thereof on the earliest
possible redemption date. Notwithstanding the foregoing, no
surplus funds shall be used to purchase or redeem Bonds secured
by a Credit Facility unless and until such funds constitute
Eligible Funds.
(g) If the principal of the Bonds and the interest accrued
thereon shall become immediately due and payable as the result of
an Event of Default specified in this Indenture, or if the Bonds
shall be redeemed as a whole in accordance with their terms or if
the Facilities Agreement is terminated in accordance with Section
2.2 of the Facilities Agreement prior to the completion of the
Facilities, any proceeds of the Bonds remaining in the
Construction Fund (not otherwise required to be deposited to the
Rebate Fund by Section 4.02 (g) hereof) shall be promptly
deposited into the Debt Service Fund and used by the Trustee
either for the purpose of paying principal of, premium, if any,
and interest on the Bonds when due or, if a Credit Facility is in
effect for any Bond, for the purpose of reimbursing the Bank for
the amount of any drawing under a Credit Facility in respect of
such Bond. In connection with release of this Indenture under
the terms hereof, any proceeds of the Bonds remaining in the
Construction Fund shall be either (1) promptly deposited by the
Trustee into the Debt Service Fund and shall be applied to reduce
the amount of the next succeeding payment or payments of the
Facilities Payments by the Company or (2) upon the written
request of the Company, applied to the purchase, at a price not
in excess of the principal amount thereof, of Bonds in the open
market, which Bonds shall thereupon be canceled; provided,
however, that if a Credit Facility is in effect with respect to
any Bond, no amount will be paid in respect of principal of,
interest on or purchase price of such Bond unless such amount
constitutes Eligible Funds. The Trustee shall have the right to
take appropriate action by judicial proceedings or otherwise to
enforce this Section.
Section 3.03. [Reserved Section]
Section 3.04. Debt Service Fund.
(a) Establishment and Purpose. A Debt Service Fund is
hereby established with the Trustee and moneys shall be deposited
therein as provided in this Indenture. The Issuer hereby grants
to the Trustee for the benefit of the Bondholders and the Bank,
to the extent provided below, a security interest in all deposits
in the Debt Service Fund. The Trustee acknowledges that it holds
the Debt Service Fund as agent for the Bondholders and the Bank,
as their interests may appear. The moneys in the Debt Service
Fund and any investments held as part of such Debt Service Fund
shall be held in trust and, except as otherwise provided in this
Indenture, shall be applied solely to pay principal of, premium,
if any, and interest on, the Bonds. The Trustee may keep
separate subaccounts of funds in any account of the Debt Service
Fund as is deemed necessary by the Trustee for the proper and
efficient management of the Debt Service Fund (and shall keep
separate accounts if the Bonds are secured by a Credit Facility),
including a subaccount kept in regards to any of such funds as
shall from time to time be deposited in an account (a "Paying
Agent Subaccount") in respect of the Bonds, as shall have been
established by the Trustee with the Paying Agent, at any time
when the Trustee is not also the Paying Agent. Any Paying Agent
Subaccount shall be established and maintained in the name of the
Trustee, as Trustee under this Indenture, and shall specify the
designation of the Bonds. As between the Trustee and the Paying
Agent, the Trustee shall be the sole and absolute owner of the
Paying Agent Subaccount, and the Paying Agent shall have no
rights thereto or in any of the moneys deposited therein, other
than the right to make withdrawals therefrom pursuant to Section
3.06(d). When moneys in the Debt Service Fund are to be applied
to the payment of the Bonds, the Trustee shall transfer such
moneys to the Paying Agent on the payment date therefor in
immediately available funds, less the amount of any such moneys
as shall be withdrawn by the Paying Agent from the Paying Agent
Subaccount pursuant to Section 3.06(d). Proceeds of drawings
under a Credit Facility shall not be deposited in the Debt
Service Fund, but shall be held by the Paying Agent pursuant to
Section 3.11 in trust and applied as provided in this Indenture.
(b) Excess in Debt Service Fund. If at any time the amount
of funds in any account of the Debt Service Fund exceeds the
amount necessary to pay the principal of, premium, if any, and
interest on the Bonds to which the account pertains in full and
all amounts owing or to be owing under this Indenture to the
Issuer, the Trustee and the Paying Agent, then the Trustee,
without further instructions, may disburse such excess first to
the Bank, if any, in fulfillment of any obligations owed to it
under the Reimbursement Agreement, as certified by the Bank,
second, to the Trustee in fulfillment of any obligations owed to
it under this Indenture, and third, if any balance remains, to
the Company.
(c) Unclaimed Moneys. Except as may otherwise be required
by the unclaimed property laws of the State of Louisiana, in case
any moneys deposited with the Paying Agent for the payment of the
Purchase Price or principal of, premium, if any, or interest on
any Bond remain unclaimed for two years after such Purchase
Price, principal, premium or interest has been paid or has become
due and payable, the Paying Agent or the Trustee may, and upon
receipt of a written request by a Company Representative shall,
pay over to the Company the amount so deposited and thereupon the
Trustee, the Paying Agent and the Issuer shall be released from
any further liability with respect to the payment of such
Purchase Price or principal, premium or interest and the owner of
such Bond shall be entitled (subject to any applicable statute of
limitations) to look only to the Company as an unsecured creditor
for the payment thereof.
Section 3.05. Application of Moneys. If available moneys
in any account of the Debt Service Fund are not sufficient on any
day to pay all principal, premium, if any, and interest on the
Outstanding Bonds then due or overdue, such moneys shall, after
payment of all amounts owing to the Trustee and the Paying Agent
under this Indenture, be applied first to the payment of
interest, including interest on overdue principal, in the order
in which the same became due (pro rata with respect to interest
which became due at the same time) and second to the payment of
principal and redemption premiums, if any, without regard to the
order in which the same became due in each case pro rata among
Bondholders; provided, however, that amounts drawn on a Credit
Facility (if any) shall be applied exclusively to pay interest,
premium, if any, and principal on Bonds supported by the Credit
Facility in accordance with the Credit Facility prior to the
application of any other moneys then available to the Trustee or
the Paying Agent. In the event there exist Company Bonds on the
date of any application of moneys under this Section, moneys
otherwise to be paid to the Company pursuant to this Section
shall be applied (subject to Section 3.06(c)(iii)) as follows:
first, so long as all payments due on Bonds supported by a Credit
Facility have been made, pro rata to all Bondholders other than
the Company, otherwise first, pro rata to all Bondholders other
than the Bank and the Company, second (and irrespective of which
clause first applies), if any balance remains, to the Bank in
fulfillment of any obligations owed to it under the Reimbursement
Agreement or any Pledged Bonds (to the extent not satisfied
pursuant to clause first), and third, if any further balance
remains, to the Company in respect of any Company Bonds.
Whenever moneys are to be applied pursuant to this Section, such
moneys shall be applied at such times, and from time to time, as
the Trustee in its discretion shall determine, having due regard
to the amount of such moneys becoming available for such
application and the likelihood of additional moneys becoming
available for such application in the future. The Trustee shall
incur no liability whatsoever to the Issuer, to the Bondholder or
any other person for any delay in applying any such moneys so
long as the Trustee acts with reasonable diligence, having due
regard for the circumstances, and ultimately applies the same in
accordance with the provisions of this Indenture as may be
applicable at the time of the application by the Trustee.
Whenever the Trustee shall exercise such discretion it shall fix
the date (which shall be the first day of a month unless the
Trustee shall deem another date more suitable) upon which such
application is to be made, and upon such date interest on the
amounts of principal paid on such date shall cease to accrue.
Whenever overdue interest is to be paid on the Bonds, the Trustee
may establish a special record date as provided in the forms of
Bonds. The Trustee shall notify the Paying Agent of any special
record date at least 20 days prior to the special record date and
give such other notice as it may deem appropriate of the fixing
of any special record date. When interest or a portion of the
principal is to be paid on an overdue Bond, the Trustee or the
Paying Agent may require presentation of the Bond for endorsement
of the payment.
Section 3.06. Payments by the Company and Letter of Credit
Drawings.
(a) Facilities Payments by the Company. The Company shall
make Facilities Payments in immediately available funds to the
Trustee for deposit in the Debt Service Fund on the date on which
such payment of principal (including principal called for
redemption) of, premium, if any, or interest on Bonds shall
become due in an amount equal to the payment then coming due on
such Bonds less the amounts, if any, (i) then held in the Debt
Service Fund and available to pay the same and (ii) amounts
received by the Paying Agent to pay the same from a draw under a
Credit Facility; provided, however, that the obligation of the
Company to make an Facilities Payment to the Trustee shall be
deemed satisfied to the extent of the amount of any moneys
therefor that on or before such date are deposited by the Company
into the Paying Agent Subaccount.
(b) Additional Payments.
(i) The Company shall pay when due the Issuer's
issuance costs and other expenses as provided in Section
3.02(d).
(ii) Within thirty (30) days after notice from the
Trustee, the Company shall pay to the Trustee the reasonable
fees and expenses of the Trustee as set forth in Section
7.03.
(iii) Within thirty (30) days after notice from the
Paying Agent, the Company shall pay to the Paying Agent its
reasonable fees and expenses as set forth in Section 3.11.
(c) Drawings on the Credit Facility.
(i) Debt Service. If a Credit Facility is available
for any portion of the Bonds, the Paying Agent shall not
later than 1:00 P.M. on the Business Day next preceding any
date on which payments of the principal of, premium, if any,
or interest on such Bonds are due, whether at maturity, by
acceleration, redemption, or upon a scheduled interest
payment date, draw on the Credit Facility an amount
sufficient to pay in full the principal, premium, if any,
and interest then coming due on such Bonds without regard to
any other moneys then available to the Trustee or the Paying
Agent. The Paying Agent shall immediately notify the Company
and the Trustee by telephone promptly confirmed in writing
if it has not been paid (or to the extent that it has not
been paid) by the Bank for such a draw on the Credit
Facility by 10:00 A.M. on the date such payment on the Bonds
is due. Neither the Trustee nor the Paying Agent may require
indemnification prior to making a required draw on the
Credit Facility, and no moneys derived from a draw shall be
used to reimburse or pay any expenses or fees of any Person,
including the Issuer, the Trustee, the Paying Agent and the
Remarketing Agent.
(ii) Tenders for Purchase. Except as provided in
Section 3.06(c)(i), drawings on the Credit Facility for the
purchase of Bonds tendered for mandatory purchase pursuant
to Sections 3.01(c)(iii), 3.01(d)(iv), 3.01(e)(iv) and
3.01(f)(iii) or for Bonds tendered for purchase at the
Bondholder's election pursuant to Sections 3.01(d)(iii) and
3.01(e)(iii) shall be made pursuant to Section 3.09(a).
(iii) Use of Credit Facility. All amounts received
by the Paying Agent under any Credit Facility shall be held
pursuant to Section 3.11 uninvested and used solely to pay
the Purchase Price or principal of, premium, if any, and
interest on the Bonds for which the Credit Facility is
available. Purchase Price, principal of, premium, if any,
and interest on Company Bonds, Pledged Bonds and Bonds not
supported by a Credit Facility shall not be paid from
amounts drawn on a Credit Facility.
(d) Payment of Debt Service. Upon written request of the
Paying Agent, the Trustee shall disburse Eligible Funds, and to
the extent necessary other funds, from the appropriate account of
the Debt Service Fund to the Paying Agent for the payment of
principal, premium, if any, and interest payable on the Bonds, as
provided in Section 3.04(a) to the extent amounts drawn on a
Credit Facility, if any, are insufficient to pay the same, and in
conjunction therewith shall give the Paying Agent written notice
of the amount of Eligible Funds being transferred; provided,
however, that, until such time, if any, as the Paying Agent shall
receive written notice from the Trustee to the contrary or an
Event of Default shall have occurred and be continuing, the
Paying Agent shall withdraw from the Paying Agent Subaccount, on
each due date and for the purposes of such payment, immediately
available funds in an amount equal to the amount necessary to
make such payment, which funds, except as specified in the last
sentence of this subsection (d), shall be Eligible Funds. The
Paying Agent shall apply such disbursements received from the
Trustee, the Company and amounts drawn on the Credit Facility to
the payment of such obligations, in the following order, (i)
moneys drawn on the Credit Facility, (ii) Eligible Funds, if any,
on deposit in the Paying Agent Subaccount of the Debt Service
Fund, which, in accordance with Section 3.04(a), do not include
any moneys received from draws on the Credit Facility, (iii)
Eligible Funds on deposit in the Debt Service Fund, which, in
accordance with Section 3.04(a), do not include any moneys
received from draws on the Credit Facility, and (iv) any other
moneys in the Debt Service Fund or the Paying Agent Subaccount of
the Debt Service Fund; provided, however, that except as
specified in the next sentence, in no event shall the Paying
Agent use any moneys other than Eligible Funds to pay principal
of, premium, if any, or interest on Bonds supported by a Credit
Facility. If and to the extent that sufficient Eligible Funds,
including moneys drawn on the Credit Facility pursuant to this
Section and Section 6.05, are not available to pay in full the
principal of, premium, if any, and interest on the Bonds
supported by a Credit Facility, then other available moneys shall
be so used.
(e) Company's Purchase of Bonds. If the amount drawn on a
Credit Facility, and deposited with the Paying Agent, together
with all other amounts (including remarketing proceeds of the
Bonds but excluding remarketing proceeds received from purchasers
of such Bonds who are Company Affiliates) received by the Paying
Agent for the purchase of Bonds supported by a Credit Facility
and tendered pursuant to Sections 3.01(c)(iii); 3.01(d)(iii),
3.01(d)(iv), 3.01(e)(iii), 3.01(e)(iv) or 3.01(f)(iii), is not
sufficient to pay the Purchase Price of such Bonds on the
Purchase Date, the Paying Agent shall before 1:30 P.M. on such
Purchase Date, notify the Company, the Remarketing Agent and the
Trustee of such deficiency by telephone promptly confirmed in
writing (which may be by facsimile). The Company shall pay to
the Paying Agent in immediately available funds by 3:00 P.M. on
the Purchase Date an amount equal to the Purchase Price of such
Bonds less the amount, if any, available to pay the Purchase
Price in accordance with Section 3.09 from the proceeds of the
remarketing of such Bonds or from drawings on a Credit Facility,
if any, as reported by the Paying Agent. The portion of Bonds so
purchased with moneys furnished by the Company (subject to
Authorized Denominations) shall be Company Bonds.
Section 3.07. Unconditional Obligation. Pursuant to the
Facilities Agreement, the obligation of the Company to make
payments required by this Indenture is absolute and
unconditional.
Section 3.08. Redemption of Bonds.
(a) General. The Bonds are redeemable prior to maturity by
the Issuer in accordance with the written direction of the
Company to the Issuer, the Paying Agent and the Trustee. Such
redemption of Bonds shall be in accordance with the terms of such
Bonds at the redemption prices plus accrued interest to the
redemption date as described in the forms of Flexible Mode Bond,
Daily Mode Bond, Weekly Mode Bond and Multiannual Mode Bond in
Section 3.01(a). If less than all the Outstanding Bonds shall be
called for redemption, the Company shall designate (to the extent
not otherwise prohibited) the amount of Bonds and Mode to be
redeemed, and if less than all of the Outstanding Bonds of any
Mode shall be called for redemption, the Bonds to be so redeemed
and the Mode shall be selected by the Paying Agent by lottery
provided that any Pledged Bonds shall be redeemed prior to the
redemption of any other Bonds. In conducting such lottery, the
Paying Agent shall treat each Bond as consisting of the quotient
of the amount of the principal value of such Bond divided by
$1,000, provided that no Bond shall be redeemed which would
result in the unredeemed portion thereof aggregating less than an
Authorized Denomination. For purposes of this Section 3.08(a),
references to the term Mode shall be deemed to include different
Rate Periods within the Multiannual Mode.
(b) Notice by the Company. The Company shall exercise its
option to have Bonds redeemed under Section 3.08(a) by giving
notice to the Trustee, the Issuer, the Paying Agent and the
Remarketing Agent at least forty-five (45) days before the
redemption date.
(c) Payment of Redemption Price and Accrued Interest.
Whenever Bonds are called for redemption, the accrued interest
thereon shall become due on the redemption date. If the Bonds to
be redeemed are supported by a Credit Facility, amounts
sufficient to pay the redemption price and accrued interest shall
be drawn under the Credit Facility. If the Bonds to be redeemed
are not supported by a Credit Facility, the Company may deposit
with the Trustee for deposit into the appropriate account of the
Debt Service Fund prior to the redemption date a sufficient sum
in immediately available funds to pay the redemption price of and
accrued interest on the Bonds to be redeemed. In each case, if
such sum is deposited, the Paying Agent shall redeem such Bonds
on the date selected for redemption.
(d) Prerequisites to Optional Redemption; Notice of
Redemption. No optional redemptions of Bonds shall occur unless
either (i) the Paying Agent has received written evidence from
S&P to the effect that such redemption will not result in a
withdrawal, suspension or reduction of the S&P ratings with
respect to the Bonds, if the Bonds to be redeemed are then rated
by S&P, or (ii) an opinion is obtained by the Company and filed
with the Paying Agent and S&P from a firm of nationally
recognized counsel experienced in bankruptcy matters selected by
the Company and satisfactory to the Issuer to the effect that the
payment of the Bonds as a result of the optional redemption
thereof would not be subject to avoidance as a preference under
the United States Bankruptcy Code upon the occurrence of an Event
of Bankruptcy. For purposes of clarification, the payment and
retirement of a Bond upon mandatory or optional tender shall not
be considered a redemption hereunder; provided, however, that
moneys deposited with the Paying Agent for final payment of any
Bond upon mandatory or optional tender or upon optional
redemption shall, if invested, be invested in Government
Obligations. When Bonds are to be redeemed, the Paying Agent
shall give notice to the affected Bondholders in the name of the
Issuer, which notice shall be given and shall be in the form
required by the forms of the Flexible Mode Bond, Daily Mode Bond,
Weekly Mode Bond and the Multiannual Mode Bond in Section 3.01(a)
hereof.
Section 3.09. Purchase of Bonds Tendered.
(a) Procedure.
(i) Notice. The Remarketing Agent shall give notice
to the Paying Agent by facsimile or by telephone, and, if by
telephone, promptly confirmed in writing (including by
facsimile) for timely receipt by the Paying Agent,
specifying the principal amount of Tendered Bonds as to
which the Remarketing Agent has found purchasers who are not
Company Affiliates, and the amounts the Remarketing Agent
has received for the purchase of Tendered Bonds from such
Persons, and shall give like notice to the Paying Agent and
the Company of any deficiency in amounts so available to pay
the Purchase Price of Tendered Bonds at or before (A) 10:30
A.M. on each Purchase Date for Tendered Bonds that are to be
in the Flexible Mode, the Daily Mode or the Weekly Mode
immediately after the Purchase Date, or (B) 1:00 P.M. two
(2) Business Days before the Purchase Date for Tendered
Bonds that are to be in the Multiannual Mode immediately
after the Purchase Date. Notwithstanding the instructions
to the Paying Agent set forth in Section 3.09(a)(ii)
concerning the amount to be drawn under the Credit Facility,
if the Paying Agent has not received a notice from the
Remarketing Agent by the appropriate time specified in the
immediately preceding sentence, the Paying Agent shall draw
on the Credit Facility in an amount sufficient to purchase
all the Bonds supported by a Credit Facility to be tendered
on the Purchase Date. The Remarketing Agent shall give
notice to the Paying Agent by facsimile or by telephone,
and, if by telephone, promptly confirmed in writing
(including by facsimile) of the names, addresses and
taxpayer identification numbers of the purchasers and the
number and denominations of Bonds to be delivered to each
purchaser, and the current rate and the next scheduled
Purchase Date of each such Bond successfully remarketed at
or before (A) 11:15 A.M. on each Purchase Date for Tendered
Bonds that are to be in the Flexible Mode, the Daily Mode or
the Weekly Mode immediately after the Purchase Date, or (B)
1:00 P.M. two (2) Business Days before the Purchase Date for
Tendered Bonds to be in the Multiannual Mode immediately
after the Purchase Date.
(ii) Sources of Payment. If the Tendered Bonds are
supported by a Credit Facility, the Paying Agent, on or
before 12:00 Noon on any Purchase Date for such Tendered
Bonds, shall draw upon the Credit Facility the amount
necessary to purchase such Tendered Bonds for which the
Remarketing Agent has not received the Purchase Price
thereof, as indicated in a notice given to the Paying Agent
pursuant to in Section 3.09(a)(i). In determining the
amount necessary to purchase such Tendered Bonds, the Paying
Agent shall take into account any amounts drawn under the
Credit Facility pursuant to Section 3.06(c)(i) to pay
interest on such Bonds on the Tender Date. If the Tendered
Bonds are not supported by a Credit Facility, the Paying
Agent shall not later than (A) 12:30 P.M. on the Purchase
Date for Tendered Bonds that are to be in the Flexible Mode
or the Daily Mode immediately after the Purchase Date, or
(B) 3:00 P.M. one (1) Business Day before the Purchase Date
for Tendered Bonds that are to be in the Weekly Mode or the
Multiannual Mode immediately after the Purchase Date, notify
the Company of the amount necessary to purchase the Tendered
Bonds for which the Remarketing Agent has not received the
Purchase Price thereof, and the Company shall pay the Paying
Agent such amount at the time required by Section 3.06(e)
hereof. The Remarketing Agent shall deliver to the Paying
Agent all amounts received by the Remarketing Agent as
proceeds of the remarketing of Bonds at or before (A) 1:30
P.M. on the Purchase Date for Tendered Bonds that are to be
in the Flexible Mode, the Daily Mode or the Weekly Mode
immediately after the Purchase Date,or (B) 1:00 P.M. on the
Purchase Date for Tendered Bonds that are to be in the
Multiannual Mode immediately after the Purchase Date. If
Bonds are supported by a Credit Facility and the Remarketing
Agent does not deliver to the Paying Agent proceeds of
remarketing sufficient, together with amounts received from
draws under the Credit Facility, to pay in full the Purchase
Price of all such Bonds due on the Purchase Date, the Paying
Agent shall make an additional draw on the Credit Facility
and thereafter the Company shall be liable for the
shortfall.
(b) Payments by the Paying Agent. At or before the close
of business on the Delivery Date and upon receipt by the Paying
Agent of the Purchase Price of the Tendered Bonds that are
delivered to it, the Paying Agent shall pay the Purchase Price of
the Bonds to the registered owners thereof as provided in the
applicable form of Bonds. The Paying Agent shall apply in order,
first, moneys paid to it by the Remarketing Agent from proceeds
of the remarketing of such Bonds by the Remarketing Agent to
Persons who are not Company Affiliates, second, but only with
respect to Bonds supported by the Credit Facility, moneys drawn
on the Credit Facility for the purpose of purchasing Tendered
Bonds (including amounts drawn on the Credit Facility to pay
accrued interest on the Tendered Bonds) and third, moneys paid to
it by the Company and remarketing proceeds received by the
Remarketing Agent from Company Affiliates. If sufficient funds
are not available for the purchase of all Bonds tendered on any
Delivery Date, no purchase shall be consummated.
Section 3.10. Remarketing of Bonds Tendered.
(a) General. Subject to the provisions of Section 3.01(g)
and clause (v) in the first paragraph of Section 3.12(a), the
Remarketing Agent shall solicit offers to purchase and use its
best efforts to find a purchaser for Tendered Bonds, Pledged
Bonds and Company Bonds. Any such purchase shall be made by
payment of the Purchase Price in immediately available funds (for
Bonds to be in the Flexible, Daily or Weekly Mode) or in
clearinghouse funds (for Bonds to be in the Multiannual Mode) to
the Paying Agent at the time specified in Section 3.09(a)(ii).
By (i) 1:15 P.M., in the case of Bonds that are to be in the
Flexible Mode or the Daily Mode immediately after the Purchase
Date, or (ii) 1:00 P.M., in the case of Bonds that are to be in
the Weekly or Multiannual Mode immediately after the Purchase
Date, Bonds remarketed under this Section shall be made available
on the Purchase Date by the Paying Agent to the purchasers
thereof (in the case of Bonds in the Flexible Mode or the Daily
Mode, delivered by the Paying Agent to the Remarketing Agent) and
shall be registered in the manner directed by the recipient
thereof, provided that such Bonds shall not be delivered unless
and until the Paying Agent has received the Purchase Price
therefor, except that Bonds in the Flexible Mode or the Daily
Mode may be delivered against a window receipt of the Remarketing
Agent guaranteeing same day payment in immediately available
funds. Bonds not remarketed shall be held by the Paying Agent.
Bonds previously purchased with moneys drawn under the Credit
Facility shall not be delivered upon remarketing unless the
Paying Agent has received written verification from the Bank that
the Credit Facility has been fully reinstated to the stated
amount of the Credit Facility.
Bonds the Purchase Price of which is paid for with funds
drawn on a Credit Facility pursuant to Section 3.09(a)(ii) shall
be registered to the Bank, or its designee, as pledgee, by the
Paying Agent (whether or not such Bonds are delivered by the
tendering Bondholder) as security for the reimbursement of the
Bank for moneys drawn under the Credit Facility and shall be
"Pledged Bonds." Bonds the Purchase Price of which is paid for
with funds provided by the Company pursuant to Section 3.06(e) or
Section 3.09(a)(ii) shall be registered in the name of the
Company by the Paying Agent and shall be "Company Bonds".
Company Bonds shall be held by the Paying Agent for the account
of the Company until transferred pursuant to this Section 3.10 or
canceled pursuant to instructions of the Company. Upon receipt
by the Paying Agent of notice from the Remarketing Agent that a
purchaser has been found for Pledged Bonds or Company Bonds held
by the Paying Agent, the Paying Agent shall register and deliver
such Bonds to such purchaser (at which time such Bonds shall
cease to be Pledged Bonds or Company Bonds) upon receipt by the
Paying Agent of the Purchase Price of such Bonds; provided,
however, that no Pledged Bond or Company Bond shall be so
registered and delivered unless the Paying Agent has received
from the Bank a written notice of reinstatement of the full
principal and interest component of the Credit Facility. If the
Paying Agent has not received from the Bank a written notice of
reinstatement of the full principal and interest component of the
Credit Facility with respect to Bonds in the Flexible Mode, the
Daily Mode or the Weekly Mode, the Paying Agent will not resume
the registration and delivery of Bonds. The Paying Agent shall
give notice to the Bank if and to the extent that the Paying
Agent has received the proceeds of remarketing of any Pledged
Bonds promptly of the receipt thereof. The Paying Agent shall
immediately notify the Remarketing Agent whenever (i) it is
prohibited from registering and delivering Bonds pursuant to this
Indenture and (ii) if the Paying Agent has been so prohibited,
upon the restoration of its power hereunder to register and
deliver Bonds. Bonds purchased with moneys drawn under the
Credit Facility and registered to the Bank or its designee
pursuant to the Reimbursement Agreement shall be delivered to and
held by the Paying Agent as custodian for the Bank and shall not
be subsequently transferred or assigned by the Bank except as
provided in this Section 3.10 and Section 3.11(a)(iv). No Bonds
that are automatically converted to the Daily Mode after failure
of an optional conversion from one Mode to another (or from one
Rate Period to another in the Multiannual Mode) shall be
remarketed until the Paying Agent notifies the Remarketing Agent
that such Bonds are supported by a Credit Facility meeting the
requirements of Section 3.15(b).
(b) Remarketing of Bonds Between Notice and Redemption or
Conversion Date. No Bonds scheduled to be redeemed or converted
to a different Mode may be remarketed under Section 3.10(a) after
receipt by the Remarketing Agent of notice of redemption or
conversion of such Bonds to a specified Mode from the Company
unless the Remarketing Agent, on or before the redemption date or
Purchase Date, gives notice to the purchaser that such purchaser
will be required to surrender its Bonds for payment on the
applicable redemption date or to tender its Bonds for mandatory
purchase on the applicable Conversion Date, as the case may be.
Section 3.11. Paying Agent.
(a) Appointment and Responsibilities. The initial Paying
Agent for the Bonds shall be First National Bank of Commerce, New
Orleans, Louisiana. If at any time the Bonds are not subject to
a Book-Entry System of registration and transfer, the Paying
Agent shall have a duly appointed agent or be a financial
institution having offices to effect transfers and receive
tenders of Bonds in the City of New York, and it shall be a
prerequisite to the discontinuation of the Book-Entry System that
a financial institution with such offices in the City of New
York, and meeting all other requirements to serve as Paying Agent
hereunder, shall be appointed. The Paying Agent shall be
entitled to the advice of counsel (who may be counsel for any
party) and shall not be liable for any action taken or omitted to
be taken in good faith in reliance on such advice. The Paying
Agent may rely conclusively on any telephone call or written
(including facsimile) notice, certificate or other document
furnished to it under this Indenture and reasonably believed by
it to be genuine. The Paying Agent shall not be liable for any
action taken or omitted to be taken by it in good faith and
reasonably believed by it to be within the discretion or power
conferred upon it, or taken by it pursuant to any direction or
instruction by which it is governed under this Indenture or
omitted to be taken by it by reason of the lack of direction or
instruction required for such action, or be responsible for the
consequences of any error of judgment reasonably made by it.
When any action (other than payment of principal of, premium, if
any, and interest on the Bonds) by the Paying Agent is called for
by this Indenture, it may defer such action pending receipt of
such evidence, if any, as it may reasonably require in support
thereof. The duties of the Paying Agent are only those expressly
set forth in this Indenture, and no additional duties shall be
implied. A permissive right or power to act shall not be
construed as a requirement to act. The Paying Agent shall not in
any event be liable for the application or misapplication of
funds, or for other acts or defaults, by any person, firm or
corporation, except, subject to this Section 3.11, by its
respective directors, officers, agents and employees. Nothing
contained in this Indenture shall in any way obligate the Paying
Agent to expend its own funds in making any payments required to
be made by it in performing its duties and obligations hereunder.
No recourse shall be had by the Company, the Issuer, the Trustee
or any Bondholder for any claim based on this Indenture or the
Bonds against any director, officer, agent or employee of the
Paying Agent unless such claim is based upon the bad faith,
fraud, deceit or willful misconduct of such person. For the
purposes of this Indenture matters shall not be considered to be
known to the Paying Agent unless they are known to an officer in
its corporate trust trustee administration department; provided
that the Paying Agent shall not be required to take notice, and
shall not be deemed to have notice or knowledge, of any Default
or Event of Default hereunder, except Events of Default described
in paragraph (i) of subsection (a) of Section 6.01 hereof, unless
the Paying Agent shall be notified specifically of the Default or
Event of Default in a written instrument or document delivered to
it by the Issuer, the Company, the Bank or by the holders of at
least 25 percent of the aggregate principal amount of Bonds then
Outstanding, and, in the absence of delivery of a notice
satisfying those requirements, the Paying Agent may assume
conclusively that there is no Default or Event of Default. The
Paying Agent shall not require indemnification either prior to
making a draw under a Credit Facility pursuant to Section
3.06(c), or prior to making any payment when due of principal,
premium or interest on any Bond to be made by the Paying Agent to
any Bondholder, except and unless such drawing or payment is
prohibited by or violates applicable law or any outstanding or
pending court or governmental order or decree.
The Company shall pay to the Paying Agent reasonable
compensation for its services and pay or reimburse the Paying
Agent for its reasonable expenses and disbursements, including
reasonable attorneys' fees hereunder and fees for reasonable
extraordinary services provided hereunder. The Company shall
indemnify and save the Paying Agent, its officers, directors,
employees and agents harmless against any losses, liabilities and
reasonable expenses which it or any of them may incur in
connection with or arising out of the acceptance or exercise of
its duties hereunder and which are not due to its gross
negligence, willful misconduct or bad faith, including the costs
and expenses of defending itself against or investigating any
claim or liability in connection therewith. Any fees, expenses,
reimbursements or other charges which the Paying Agent may be
entitled to receive from the Company hereunder shall be due and
payable 30 days after a request for payment has been made by the
Paying Agent to the Company, and any such fees, expenses,
reimbursements or other charges not paid when due shall bear
interest at the "commercial lending rate" of the Trustee as
announced from time to time (or, if none, the nearest
equivalent). The indemnification provisions of this paragraph
shall survive the satisfaction and discharge of the Bonds.
The Paying Agent shall act as such and, as agent of and on
behalf of the Issuer, as Bond registrar and transfer agent,
provided that at all times a copy of the registration books shall
be kept in the State of Louisiana at the offices of the Company
or such other place within the State as may be designated by the
Issuer. Bonds may be transferred and exchanged as provided in
the forms of the Flexible Mode Bond, Daily Mode Bond, Weekly Mode
Bond and Multiannual Mode Bond. The Trustee shall be entitled to
receive from time to time upon request therefor made to the
Paying Agent and may conclusively rely upon a list of the
registered holders of the Bonds certified by the Paying Agent to
be true and complete as of a given date. The Paying Agent, which
may act by means of agents, shall signify its acceptance of the
duties and obligations imposed upon it hereunder by its written
instrument of acceptance under which the Paying Agent will agree
to:
(i) (a) promptly deposit into the applicable Paying
Agent Subaccount any sums delivered to it for such purpose
pursuant to Section 3.06(a) or otherwise, and give notice
to the Trustee of any such delivery and deposit, (b) until
so deposited, hold all such sums segregated from other
moneys of any Company Affiliate, uninvested and in trust for
the benefit of the Bondholders; (c) acknowledge and agree
that all such sums and any Paying Agent Subaccount, and any
moneys deposited therein, are owned and held by the Trustee,
as trustee under this Indenture, and that the Paying Agent
relinquishes and waives any and all claims to any thereof;
whether at law or in equity, by reason of rights of set-off
(including statutory rights) or otherwise; and (d) at any
time when a Credit Facility for the Bonds is not in place,
report to the Trustee, on the date that any payment of
principal (including principal of any Bonds called for
redemption) or, premium, if any, or interest on any Bonds is
required to be made to any Bondholder, if the Company has
not, on such date, delivered to the Paying Agent for deposit
into the applicable Paying Agent Subaccount immediately
available funds in an amount equal to the total amount of
all such payments required to be made on such date;
(ii) hold all sums delivered to it by the Trustee from
the Debt Service Fund for the payment of principal of,
premium, if any, and interest on the Bonds, or withdrawn for
such purposes by the Paying Agent from a Paying Agent
Subaccount pursuant to Section 3.06(d), segregated from
other moneys of any Company Affiliate, uninvested and in
trust for the benefit of the Bondholders until such sums
shall be paid to the Bondholders or otherwise disposed of as
herein provided;
(iii) hold all moneys delivered to it hereunder for
the purchase of Bonds (including amounts drawn on a Credit
Facility, amounts received from the Company and remarketing
proceeds), segregated from other moneys of any Company
Affiliate, uninvested and in trust for the benefit of the
Person that shall have so delivered such moneys until the
Bonds purchased with such moneys shall have been delivered
to or for the account of such Person;
(iv) hold all Pledged Bonds in trust for the benefit
of the Bank until such Pledged Bonds have been remarketed by
the Remarketing Agent, purchased by the Company or redeemed,
and pay to the Bank, in accordance with the Reimbursement
Agreement, moneys tendered to it upon a remarketing of Bonds
secured by a Credit Facility, to the extent that the
Purchase Price of such Bonds was paid from moneys drawn
under the Credit Facility;
(v) hold all Company Bonds in trust for the benefit of
the Company until such Company Bonds have been remarketed by
the Remarketing Agent, redeemed, or canceled;
(vi) keep such books and records as shall be consistent
with industry practice and make such books and records,
including the books of registration for the Bonds, available
for inspection by the parties hereto and the Remarketing
Agent at all reasonable times;
(vii) promptly report to the Trustee all authentica
tions of Bonds transferred, exchanged or remarketed and any
information received by it concerning the names and
addresses of Bondholders and promptly report to the
Remarketing Agent the principal amount of Bonds tendered to
it upon each optional and mandatory redemption and the date
of purchase of Bonds so tendered to it;
(viii) give all notices required of it in this
Indenture at the times and in the manner required by this
Indenture and send to the Remarketing Agent copies of all
such notices;
(ix) act as agent of the Trustee for the purpose of
executing the Certificate of Authentication on the Bonds;
and
(x) take all other actions and perform all other
duties and obligations as may be required of it as Paying
Agent under this Indenture.
Except as may otherwise be expressly agreed by the Paying Agent,
the Paying Agent shall have no responsibility with respect to the
enforcement of any Credit Facility obtained in accordance
herewith.
(b) Removal or Resignation of Paying Agent. The Company
may discharge the Paying Agent from time to time and appoint a
successor approved by the Trustee, the Bank, the Remarketing
Agent and the Issuer, which approval shall not be unreasonably
withheld. The Company shall also designate a successor Paying
Agent for the Bonds, subject to the approval of the Trustee, the
Bank, the Remarketing Agent and the Issuer, which approval shall
not be unreasonably withheld, if the Paying Agent resigns or
becomes ineligible. The Paying Agent may resign by giving at
least sixty (60) days' written notice to the parties hereto, the
Company, the Bank and the Remarketing Agent. The Paying Agent's
rights of indemnity under this Section 3.11 shall survive any
removal or resignation of such Paying Agent. Each successor
Paying Agent shall be a commercial bank with trust powers or a
trust company having a capital and surplus of not less than
$50,000,000, shall at the time of the appointment be rated at
least Baa3/P-3 by Moody's, shall be registered as a transfer
agent with the Securities and Exchange Commission, shall have the
power to authenticate bonds and shall be capable of performing
the duties prescribed for it herein. The Paying Agent may but
need not be the same person as the Trustee. The Trustee shall
give notice of the appointment of a successor Paying Agent in
writing to each affected Bondholder at its address as it appears
on the registration books maintained by the Paying Agent. The
Trustee will promptly certify to the Company that it has mailed
such notice to all affected Bondholders, and such certificate
will be conclusive evidence that such notice was given in the
manner required hereby.
(c) Successors. Any corporation, association, partnership
or firm which succeeds to the corporate trust business of the
Paying Agent as a whole or substantially as a whole, whether by
sale, merger, consolidation or otherwise, shall thereby become
vested with all the property, rights and powers of the Paying
Agent under this Indenture and shall be subject to all the duties
and obligations of the Paying Agent under this Indenture.
In the event that the Paying Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the
Paying Agent shall be taken under the control of any state or
federal court or administrative body because of bankruptcy or
insolvency, or for any other reason, and the Company shall not
have appointed its successor within thirty (30) days, the Trustee
shall appoint a successor. In the event of the resignation or
removal of the Paying Agent, the Paying Agent shall pay over,
assign, transfer and deliver the Credit Facility and any moneys
and Bonds, including Pledged Bonds and unauthenticated Bonds,
held by it and the books of registry maintained by it in such
capacity to its successor. No resignation or removal of the
Paying Agent shall be effective until a successor has been
appointed and has accepted its appointment.
The Paying Agent shall send or cause to be sent notice to
affected Bondholders of a change of address for the delivery of
Bonds or notices or the payment of principal or purchase price of
Bonds.
Section 3.12. Remarketing Agent.
(a) Qualifications and Responsibilities. The Company shall
appoint, with the consent of the Issuer, and, if a Credit
Facility is in effect with respect to Bonds, the Bank, one or
more Remarketing Agents for the Bonds. The Remarketing Agent
shall be authorized by law to perform all of the duties imposed
upon it by this Indenture. In addition, the Remarketing Agent
shall either (i) have a capitalization of at least $10,000,000
and outstanding securities rated at least Baa3 (or a
substantially equivalent rating) by Moody's or (ii) have a
capitalization of at least $15,000,000. The Remarketing Agent,
which may act by means of agents, shall signify its acceptance of
the duties and obligations imposed upon it hereunder by a written
agreement with the Company under which the Remarketing Agent will
agree, among other things, to:
(i) determine the Flexible, Daily, Weekly or
Multiannual Rate pursuant to and in accordance with Sections
3.01(c)(i), (d)(i), (e)(i) and (f)(i), respectively, and the
forms of Flexible, Daily, Weekly and Multiannual Bonds;
(ii) give all notices to the Trustee, the Paying Agent
and the Company regarding the determination of interest
rates on the respective Bonds and regarding Tendered Bonds
as are required of the Remarketing Agent in this Indenture;
(iii) hold, uninvested, all moneys received
hereunder from the remarketing of Tendered Bonds for the
benefit of the Person which shall have delivered such moneys
until the Remarketing Agent shall have transferred such
moneys to the Paying Agent as provided in this Indenture;
(iv) keep such books and records with respect to its
duties as Remarketing Agent as shall be consistent with
prudent industry practice and make such books and records
available for inspection by the parties hereto and the
Paying Agent at all reasonable times; and
(v) unless otherwise instructed by the Company, use
its best efforts to remarket Bonds in accordance with this
Indenture and any remarketing agreement entered into by the
Remarketing Agent and the Company.
The Remarketing Agent may enter into custodial agreements
with one or more banking or similar institutions for the deposit
and holding of the Bonds in order to facilitate the tendering and
remarketing of Bonds as provided in this Indenture, provided,
however, that in no event shall the Issuer, the Company, the
Trustee or the Paying Agent be responsible or held liable for any
action taken or not taken under any such custodial agreement and
in no way shall any such custodial agreement relieve or otherwise
alter the obligations and responsibilities of the Remarketing
Agent set forth in this Indenture. The Remarketing Agent may use
an on-line issuing and reporting system in the discharge of its
duties.
(b) Removal or Resignation of Remarketing Agent. With the
written approval of the Bank delivered to the Company, if a
Credit Facility is then in effect, the Trustee and the Paying
Agent, the Company may (i) remove the Remarketing Agent at any
time by written notice to the Remarketing Agent, the Bank and the
parties hereto and appoint a successor which meets the
qualifications set forth in Section 3.12(a), and (ii) appoint a
successor with similar qualifications if the Remarketing Agent
resigns or becomes ineligible. The Company shall give the
Issuer, the Bank, the Paying Agent and the Trustee at least two
(2) days' notice prior to the appointment of a successor
Remarketing Agent. The Remarketing Agent may at any time resign
and be discharged of the duties and obligations created by this
Indenture by giving at least thirty (30) days' written notice to
the Issuer, the Trustee, the Bank, the Company and the Paying
Agent. The Trustee shall give written notice to the holders of
the Bonds of any such removal or resignation of the Remarketing
Agent or such appointment of a successor Remarketing Agent.
(c) Successors. Any corporation, association, partnership
or firm which succeeds to the business of the Remarketing Agent
as a whole or substantially as a whole, whether by sale, merger,
consolidation or otherwise, shall thereby become vested with all
the property, rights and powers of the Remarketing Agent under
this Indenture and shall be subject to all the duties and
obligations of the Remarketing Agent under this Indenture. In
the event that the Remarketing Agent shall resign or be removed,
or be dissolved, or if the property or affairs of the Remarketing
Agent shall be taken under the control of any state or federal
court or administrative body because of bankruptcy or insolvency,
or for any other reason, and the Company shall not have appointed
its successor within thirty (30) days, the Trustee shall apply to
a court of competent jurisdiction for such appointment.
Section 3.13. Investments.
(a) Pending their use under this Indenture, moneys in the
Debt Service Fund (other than moneys deposited thereto for the
purpose of an optional redemption, which moneys shall, if
invested, be invested in Government Obligations) may be invested
by the Trustee in Permitted Investments (as defined below)
maturing or redeemable at the option of the holder thereof at or
before the time when such moneys are expected to be needed and
shall be so invested pursuant to written direction of the Company
if no Default known to the Trustee then exists under this
Indenture. Any investments pursuant to this subsection shall be
held by the Trustee as a part of the appropriate account of the
Debt Service Fund and, upon receipt by the Paying Agent of
written instructions from the Company, shall be sold or redeemed
in accordance with such instructions to the extent necessary to
make payments or transfers or anticipated payments or transfers
from such account.
(b) Any interest realized on investments in the Debt
Service Fund and any profit realized upon the sale or other
disposition thereof shall be credited to the appropriate account
of the Debt Service Fund and any loss shall be charged thereto.
The Trustee shall not be liable or responsible for any loss or
penalty resulting from any such investment. The Trustee shall
not be liable or responsible for the Bonds becoming "arbitrage
bonds" within the meaning of the Code as a result of investments
it makes pursuant to instructions from the Company. The Trustee
may make any and all investments through its own bond or
securities department or the bond or securities department of any
affiliate of the Trustee.
(c) The term "Permitted Investments" means any of the
following obligations or securities on which neither the Company
nor any of its subsidiaries is the obligor: (a) direct United
States Treasury obligations, the principal and interest of which
are fully guaranteed by the government of the United States;
(b)(i) bonds, debentures, notes, or other evidence of
indebtedness issued or guaranteed by federal agencies and
provided such obligations are backed by the full faith and credit
of the United States of America, which obligations include but
are not limited to: (aa) U.S. Export-Import Bank, (bb) Farmers
Home Administration, (cc) Federal Financing Bank, (dd) Federal
Housing Administration Debentures, (ee) General Services
Administration, (ff) Government National Mortgage
Association_guaranteed mortgage-backed bonds and guaranteed pass-
through obligations, (gg) U.S. Maritime Administration_guaranteed
Title XI financing, (hh) U.S. Department of Housing and Urban
Development, (ii) bonds, debentures, notes, or other evidence of
indebtedness issued or guaranteed by U.S. government
instrumentalities, which are federally sponsored, and such
obligations include but are not limited to: (aa) Federal Home
Loan Bank System, (bb) Federal Home Loan Mortgage Corporation,
(cc) Federal National Mortgage Association, (dd) Student Loan
Marketing Association and (ee) Resolution Funding Corporation;
(c) direct security repurchase agreements (which means an
agreement under which securities are purchased, held for a
specified time, and then sold back) of any federal book entry
only securities enumerated in clauses (a) and (b); (d) time
certificates of deposit of state banks organized under the laws
of Louisiana, or national banks having their principal offices in
the State of Louisiana, savings accounts or shares of savings and
loan associations and savings banks, as defined by R.S. 6:703
(15) and (16), or share accounts and share certificate accounts
of federally or state chartered credit unions issuing time
certificates of deposit; and (e) mutual or trust fund
institutions which are registered with the Securities and
Exchange Commission under the Securities Act of 1933 and the
Investment Act of 1940 and which have underlying investments
consisting solely of and limited to securities of the United
States government or its agencies. The commercial banks and
banking institutions referred to in clauses (c) and (d) above may
include the entities acting as Trustee and Paying Agent hereunder
if such entities shall otherwise satisfy the requirements
thereof. The Trustee is specifically authorized to implement its
automated cash investment system to assure that cash on hand is
invested and to charge its normal cash investment fees, which may
be deducted from income earned on investments.
Funds invested as provided in clause (d) above shall not
exceed at any time the amount insured by the Federal Deposit
Insurance Corporation in any one banking institution, or in any
one savings and loan association, or National Credit Union
Administration, unless the uninsured portion is collateralized by
the pledge of securities in the manner provided in R.S. 39:1221
and the rate of interest paid by the banks shall be established
by contract between the bank and the Issuer; provided however,
that the interest rate at the time of investment shall be a rate
not less than fifty basis points below the prevailing market
interest rate on direct obligations of the United States Treasury
with a similar length of maturity.
Notwithstanding the foregoing list of investments, in no
instance shall funds held hereunder be invested in obligations
described in clause (b) above which are collateralized mortgage
obligations that have been stripped into interest only or
principal only obligations, inverse floaters, or structured notes
(which means securities of U.S. government agencies,
instrumentalities, or government sponsored enterprises which have
been restructured, modified, and/or reissued by private
entities).
Section 3.14. Reduction of Credit Facility on Change in
Mode. If Bonds are converted from one Mode to another Mode for
which the Paying Agent is required to be entitled to draw funds
under the Credit Facility for a reduced number of days' interest,
as described in Section 3.15(b)(ii), the Paying Agent may reduce
the amount available to be drawn under the Credit Facility upon
such conversion in accordance with the Credit Facility.
If no Credit Facility is to be in effect for the Bonds as
converted to any Mode, the Trustee (or the Paying Agent at the
request of the Trustee) shall reduce (or if all the Bonds are so
converted, release) the Credit Facility upon such conversion so
that the Credit Facility, if any, in effect satisfies the
requirements described in Section 3.15(b)(ii).
In no event shall any reduction in or release of the Credit
Facility pursuant to this Section 3.14 take effect until five (5)
Business Days after the conversion.
Section 3.15. Credit Facilities.
(a) Substitution or Replacement. Upon satisfaction of the
requirements set forth in this Section 3.15 and subject to the
last two sentences of this Section 3.15(a), the Company may
replace a Credit Facility then in effect with a substitute Credit
Facility; provided, however, that (1) the Credit Facility being
replaced shall in no event be terminated or released (1) until
the Company has given not less than forty-five (45) days' written
notice to the Trustee, the Paying Agent and the Remarketing
Agent, and the Paying Agent has received the proceeds of all
outstanding drawings on the Credit Facility being replaced, and
(2) if any Bonds supported by the Credit Facility being replaced
are in the Daily Mode or the Weekly Mode, until the Paying Agent
has given not less than fifteen (15) days' written notice of the
mandatory tender of such Bonds, as required by the terms thereof,
and (3) if any of the Bonds supported by the Credit Facility
being replaced are in the Flexible Mode or the Multiannual Mode,
the Credit Facility shall in no event be terminated or released
earlier than on an Effective Date for all such Bonds supported by
the Credit Agreement. Neither the Paying Agent nor the Trustee
shall release the Credit Facility or accept a substitute Credit
Facility during the period between the giving of the notice of
mandatory tender, required by the form of the Daily Mode Bond or
the Weekly Mode Bond, and the Purchase Date.
Prior to the replacement of any Credit Facility, the Company
shall have delivered to the Trustee and the Paying Agent: (i) an
opinion of counsel for the issuer of the substitute Credit
Facility to the effect that it constitutes a legal, valid and
binding obligation of the issuer enforceable in accordance with
its terms; (ii) an opinion of Bond Counsel, counsel for the
issuer of the substitute Credit Facility, counsel for the Company
or the Trustee to the effect that the substitute Credit Facility
meets the requirements of this Section 3.15; (iii) a certificate
of the Bank that all amounts due under the Reimbursement
Agreement have been paid and that the Company has fulfilled all
its obligations arising out of such Agreement; and (iv) written
evidence from S&P, if such Bonds are then rated by S&P, that the
replacement of the Credit Facility will not in itself result in
the suspension, reduction or withdrawal of the rating on the
Bonds. Notice of the substitution or replacement of a Credit
Facility shall be sent by the Trustee to S&P.
(b) Requirements. Notwithstanding anything to the contrary
contained herein, each Credit Facility must:
(i) be an irrevocable, unconditional obligation of a
financial institution;
(ii) be on terms no less favorable to the Paying Agent
than the Letter of Credit, and entitle the Paying Agent to
draw upon or demand payment and receive in immediately
available funds an amount equal to the sum of the principal
amount of the Bonds supported by the Credit Facility, any
premium applicable thereto, and (A) forty-five (45) days'
accrued interest at the Maximum Interest Rate on the
principal amount of Bonds then Outstanding in the Daily Mode
or the Weekly Mode, (B) a number of days' accrued interest
at the Maximum Interest Rate on Bonds in the Flexible Mode
that equals the number of days established by a Credit
Facility as the maximum length of a Rate Period (which shall
not exceed 270 days) for the Bonds in the Flexible Mode,
plus twenty (20) days or (C) two hundred (200) days' accrued
interest at the Maximum Interest Rate on the principal
amount of Bonds then Outstanding in the Multiannual Mode
plus an amount equal to any applicable premium which may be
paid on the Bonds in the Multiannual Mode;
(iii) provide for a term which may not expire in
less than one year and which may not expire or be terminated
prior to the fifth Business Day after the mandatory tender
for purchase as provided in Sections 3.01(c)(iii),
3.01(d)(iv), 3.01(e)(iv) or 3.01(f)(iii). The Paying Agent
and the Trustee shall not agree to any amendment of a Credit
Facility which in any way limits the obligation of the Bank
to provide funds under the Credit Facility without the prior
written consent of holders of 100% of the principal amount
of the Bonds Outstanding and entitled to the benefit
thereof;
(iv) secure all Bonds; and
(v) be accompanied by written evidence from S&P, if
such Bonds are then rated by S&P, that the use of the Credit
Facility will not in itself result in the suspension,
reduction or withdrawal of the rating on the Bonds. Notice
of the use of a Credit Facility shall be sent by the Trustee
to S&P.
ARTICLE IV: TAX-EXEMPT STATUS
Section 4.01. Exemption from Federal Income Taxation. The
Issuer and the Trustee will not knowingly take any action, or
omit to take any action, which action or omission will adversely
affect the exclusion from gross income for federal income tax
purposes of interest on the Bonds, and in the event of such
action or omission will promptly, upon receiving knowledge
thereof, take all lawful actions, based on advice of Bond Counsel
and at the expense of the Company, as may rescind or otherwise
negate such action or omission.
Section 4.02. Covenants Regarding Rebate.
(a) A special Rebate Fund is hereby established by the
Issuer. The Rebate Fund shall be for the sole benefit of the
United States of America and shall not be subject to the claim of
any other person, including without limitation, the Bondholders.
The Rebate Fund is established for the purpose of complying with
section 148 of the Code and the Treasury Regulations promulgated
pursuant thereto. The money deposited in the Rebate Fund,
together with all investments thereof and investment income
therefrom, shall be held in trust and applied solely as provided
in this section. The Rebate Fund is not a portion of the Trust
Estate and is not subject to the lien of this Indenture.
Notwithstanding the foregoing, the Trustee with respect to the
Rebate Fund is afforded all the rights, protections and
immunities otherwise accorded to it hereunder.
(b) Within ten days after the close of each "Bond Year,"
the Trustee shall receive from the Company a computation in the
form of a certificate of an authorized officer of the Company of
the amount of "Excess Earnings," if any, for the period beginning
on the date of delivery of the Bonds and ending at the close of
such "Bond Year" and the Company shall pay to the Trustee for
deposit into the Rebate Fund an amount equal to the difference,
if any, between the amount then in the Rebate Fund and the Excess
Earnings so computed. The term "Bond Year" means with respect to
the Bonds each one-year period ending on the anniversary of the
date of delivery of the Bonds or such other period as may be
elected by the Issuer in accordance with the Regulations and
notice of which election has been given to the Trustee. If, at
the close of any Bond Year, the amount in the Rebate Fund exceeds
the amount that would be required to be paid to the United States
of America under paragraph (d) below if the Bonds had been paid
in full, such excess may be transferred from the Rebate Fund and
paid to the Company, and the Company shall use for such purposes
for which, or to be redeposited to such fund from which, such
amounts were originally derived.
(c) In general, "Excess Earnings" for any period of time
means the sum of
(i) the excess of --
(A) the aggregate amount earned during such
period of time on all "Nonpurpose Investments"
(including gains on the disposition of such
Obligations) in which "Gross Proceeds" of the issue are
invested (other than amounts attributable to an excess
described in this subparagraph (c)(i), over
(B) the amount that would have been earned
during such period of time if the "Yield" on such
Nonpurpose Investments (other than amounts attributable
to an excess described in this subparagraph (c)(i)) had
been equal to the yield on the issue, plus
(ii) any income during such period of time attributable
to the excess described in subparagraph (c)(i) above.
The term Nonpurpose Investments, Gross Proceeds, and Yield
shall have the meanings given to such terms in section 148 of the
Code and the Regulations promulgated pursuant to such section.
(d) The Trustee shall pay to the United States of America
at least once every five years, to the extent that funds are
available in the Rebate Fund or otherwise provided by the
Company, an amount that ensures that at least 90 percent of the
Excess Earnings from the date of delivery of the Bonds to the
close of the period for which the payment is being made will have
been paid. The Trustee shall pay to the United States of America
not later than 60 days after the Bonds have been paid in full, to
the extent that funds are available in the Rebate Fund or
otherwise provided by the Company, 100 percent of the amount then
required to be paid under section 148(f) of the Code as a result
of Excess Earnings.
(e) The amounts to be computed, paid, deposited or
disbursed under this section shall be determined by the Company
acting on behalf of the Issuer within ten days after each Bond
Year after the date of issuance of each issue or series of Bonds
unless the Trustee shall have been provided a Favorable Opinion
with respect to the noncompliance with such requirements. By
such date, the Company shall also notify, in writing, the Trustee
and the Issuer of the determinations the Company has made and the
payment to be made pursuant to the provisions of this section.
Upon written request of any registered owner of Bonds, the
Company shall furnish to such registered owner of Bonds a
certificate showing compliance with this section and other
applicable provisions of section 148 of the Code.
(f) The Trustee shall maintain a record of the periodic
determinations by the Company of the Excess Earnings for a period
beginning on the first anniversary date of the issuance of the
Bonds and ending on the date six years after the final retirement
of the Bonds. Such records shall state each such anniversary
date and summarize the manner in which the Excess Earnings, if
any, was determined.
(g) If the Trustee shall declare the principal of the Bonds
and the interest accrued thereon immediately due and payable as
the result of an Event of Default specified in the Indenture, or
if the Bonds are optionally or mandatorily prepaid or redeemed
prior to maturity as a whole in accordance with their terms, any
amount remaining in any of the funds, other than amounts in the
Credit Facility Account or the Bond Purchase Fund, shall be
transferred to the Rebate Fund to the extent that the amount
therein is less than the Excess Earnings computed by the Company
as of the date of such acceleration or redemption, and the
balance of such amount shall be used immediately by the Trustee
for the purpose of paying principal of, redemption premium, if
any, and interest on the Bonds when due. In furtherance of such
intention, the Issuer hereby authorizes and directs its President
to execute any documents, certificates or reports required by the
Code and to make such elections, on behalf of the Issuer, which
may be permitted by the Code as are consistent with the purpose
for the issuance of the Bonds.
ARTICLE V: THE FACILITIES
Section 5.01. Facilities. The Company has agreed in the
Facilities Agreement to comply with certain requirements in the
acquisition, construction and improvement of the Facilities.
ARTICLE VI: DEFAULT AND REMEDIES
Section 6.01. Default and Waiver.
(a) Events of Default; Default. "Event of Default" in this
Indenture means any one of the events set forth below with
respect to the Bonds and "Default" means any event with respect
to the Bonds which with the lapse of time or notice or both would
be an Event of Default.
(i) Debt Service on Bonds; Required Purchase. Any
principal of or interest on any Bond shall not be paid when
due, whether at maturity or otherwise, or any Purchase Price
for Bonds shall not be paid as provided in Sections 3.01,
3.06, 3.08 or 3.09, except that it shall not be an Event of
Default if interest on any Bond not supported by a Credit
Facility is paid within sixty (60) days after it becomes
due.
(ii) Other Obligations. The Issuer shall fail to
observe or perform any of its other covenants or agreements
contained herein and such failure shall continue for a
period of sixty (60) days after written notice given to the
Issuer by the Trustee or the Bondholders of at least 25% in
principal amount of the Bonds Outstanding; provided,
however, that if such Default cannot be cured by the Issuer
within such sixty (60) day period, it shall not constitute
an Event of Default if curative action is instituted by the
Issuer within such sixty (60) day period and thereafter is
diligently pursued until such Default is cured.
(iii) Events of Bankruptcy. (a) The entry by a
court having jurisdiction in the premises of (1) a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition by one
or more Persons other than the Company seeking reorgani
zation, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state
law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official
for the Company or for any substantial part of its property,
or ordering the winding up or liquidation of its affairs,
and any such decree or order for relief or any such other
decree or order shall have remained unstayed and in effect
for a period of 90 consecutive days; or (b) the commencement
by the Company of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief
in respect of the Company in a case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorga
nization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or
state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as
they become due, or the authorization of such action by the
Board of Directors of the Company.
(iv) Reimbursement Agreement. The Trustee or the Paying
Agent shall have received written notice from the Bank of
the occurrence of an event of default under a Reimbursement
Agreement and directing that the Bonds become immediately
due and payable.
(v) Non-Reinstatement under the Credit Facility. If
the Paying Agent shall receive written notice from the Bank
within fourteen (14) calendar days after a drawing under the
Credit Facility to pay interest on the Bonds that the Bank
has not reinstated the amount so drawn.
In the event of an occurrence of a Default under Section
6.01(a)(iv) or (v), and the receipt of notice thereof from the
Bank by either the Trustee or Paying Agent, each party shall
promptly confirm to the other the receipt of such notice. In
addition, the Company agrees to notify the Issuer, the Bank, the
Remarketing Agent, the Paying Agent and the Trustee promptly in
writing of the occurrence of any Default or Event of Default of
which it has knowledge. Within seven (7) days after being
notified of a Default or an Event of Default as provided in
Section 7.02(e), the Trustee (or the Paying Agent at the request
of the Trustee) will give notice thereof to the Bank and to
holders of Bonds not secured by a Credit Facility and, with
respect to holders of Bonds secured by a Credit
Facility, the Trustee (or the Paying Agent at the request of the
Trustee) will promptly give notice of such an Event of Default,
provided that such notice to holders of Bonds secured by a Credit
Facility shall be given only with respect to Events of Default
under Sections (iii), (iv) or (v) above.
(b) Waiver. At any time before an acceleration pursuant to
Section 6.02(a)(i), the Trustee may waive a Default (other than
a Default in the payment of the Purchase Price, principal of,
premium, if any, or interest on Bonds) and its consequences with
respect to Bonds subject to acceleration pursuant to Section
6.02(a), by written notice to the Company, and in the absence of
inconsistent instructions from Bondholders pursuant to Sections
6.05 or 9.01 shall do so upon written instruction of the owners
of at least twenty-five per cent (25%) in principal amount of
such Bonds Outstanding. No waiver under this Section shall
affect the right of the Trustee, the Paying Agent or the Issuer
to enforce the payment of any amounts owing to it. The Trustee
shall not waive any Event of Default under Sections 6.01(a)(i),
6.01(a)(iv) or 6.01(a)(v).
Section 6.02. Acceleration.
(a) Bonds Not Supported by a Credit Facility. If an Event
of Default described in Section 6.01(a)(i) hereof occurs and is
continuing, the Trustee may, and upon the written request of the
Bondholders of at least 25% in principal amount of the
Outstanding Bonds (other than Bonds that are supported by a
Credit Facility, Pledged Bonds and Company Bonds) shall, by
written notice to the Company, the Issuer, the Paying Agent and
the Remarketing Agent, declare immediately due and payable the
principal of the Outstanding Bonds (other than Bonds that are
supported by a Credit Facility and Pledged Bonds, but including
Company Bonds) and the accrued interest thereon, whereupon the
same shall become immediately due and payable without any further
action or notice. If within 15 days after such declaration, all
amounts payable to the Issuer and the Trustee hereunder and on
Bonds (except principal of and interest on Bonds which are due
solely by reason of such acceleration) shall have been paid or
provided for by deposit with the Trustee and all existing Events
of Default or Defaults with respect to the Bonds shall have been
cured or waived, then the Bondholders representing a majority in
principal amount of the Bonds subject to acceleration under this
Section 6.02(a) may annul such acceleration and its consequences
by written notice to the Issuer, the Trustee and the Company.
Such annulment shall be binding upon the Issuer, the Trustee and
all of the Bondholders, but no such annulment shall extend to or
affect any subsequent Events of Default or Default or impair any
right or remedy consequent thereto.
(b) Bonds Supported by a Credit Facility. If the Event of
Default is one described in Section 6.01(a)(i), (iv) or (v), the
principal of the Bonds that are supported by a Credit Facility
and Pledged Bonds and accrued interest thereon shall
automatically become immediately due and payable, on the date of
such Event of Default, without any further notice or action in
accordance with Section 6.05. Notwithstanding the foregoing, if
an Event of Default described in Section 6.01(a)(i) occurs due to
the failure of the Paying Agent to receive sufficient funds for
the payment of the Purchase Price of all Bonds supported by a
Credit Facility tendered for purchase on any Purchase Date, the
Paying Agent shall immediately draw under the Credit Facility an
amount equal to such deficiency (except to the extent that one or
more drawings have been made previously in respect of the same
deficiency), plus one day's accrued interest on such Bonds, and
only if such Event of Default is not cured by the close of
business on the next Business Day shall there be such an
automatic acceleration of the payment of principal of and accrued
interest on such Bonds.
Section 6.03. Court Proceedings. The Trustee may enforce
the provisions of this Indenture by appropriate legal proceedings
for the specific performance of any covenant, obligation or
agreement contained herein whether or not a Default or an Event
of Default exists, or for the enforcement of any other appro
priate legal or equitable remedy, and may recover damages caused
by any breach by the Company of the provisions of this Indenture,
including (to the extent this Indenture may lawfully provide)
court costs, reasonable attorney's fees and other costs and
expenses incurred in enforcing the obligations of the Company
under the Facilities Agreement. The Issuer may likewise enforce
obligations owed to it hereunder which it has not assigned to the
Trustee. All rights under this Indenture and the Bonds may be
enforced by the Trustee without the possession of any Bonds or
the production thereof at the trial or other proceedings relative
thereto, and any proceeding instituted by the Trustee shall be
brought in its name for the ratable benefit of the Bondholders.
Section 6.04. Revenues after Default. After the occurrence
of an Event of Default, any funds pledged as security hereunder
for the Bonds and any other moneys received by the Trustee for
the Bonds (other than amounts irrevocably set aside to pay
particular Bonds) shall be applied to amounts due under Section
3.06 (without regard to any grace periods), which amounts shall
be applied in the order specified in Section 3.05.
Section 6.05. The Credit Facility; Acceleration. Upon
acceleration of Bonds on the date of the Event of Default in
accordance with Section 6.02(b) prior to expiration of a Credit
Facility, the Trustee shall instruct the Paying Agent to draw
immediately on the Credit Facility in an amount equal to the
aggregate unpaid principal of and interest on the Bonds supported
by the Credit Facility to the date on which interest will cease
to accrue (which shall be the date, with respect to a default
under Section 6.01(a)(i), that a principal or interest payment
which was not made was due, or, with respect to a default under
Section 6.01(a) (iv) or 6.01(a)(v), the date the Paying Agent or
Trustee receives notice of a Default from the Bank). Upon payment
of principal and interest on Bonds from amounts drawn on a Credit
Facility upon acceleration, no further amounts with respect to
the Bonds shall be payable to the Bondholders, but such payment
shall not reduce or satisfy any Facilities Payment obligation of
the Company unless the Bank shall have been fully reimbursed for
amounts advanced under a Credit Facility. The Trustee shall not
require indemnification for any instruction required by Section
6.02 or this Section 6.05 to be given by the Trustee to the
Paying Agent to draw on the Credit Facility, prior to the time
such instruction is given, except and unless such instruction is
prohibited by or violates applicable law or any outstanding or
pending court or governmental order or decree.
Section 6.06. Rights of Bondholders. If an Event of
Default occurs and is continuing, and if the Bondholders
representing not less than 25% in principal amount of the
Outstanding Bonds shall have requested the Trustee in writing to
exercise one or more of the rights and remedies provided
hereunder and offered it indemnity as provided in Section
7.02(e), the Trustee shall be required to exercise such one or
more of the rights and remedies hereunder as the Trustee shall
determine to be in the best interest of the Bondholders and not
inconsistent with any directions given in accordance with Section
9.01. The Trustee may refuse to follow any direction that
conflicts with law or would involve the Trustee in personal
liability. No Bondholder shall have any right to institute an
action in law or equity or to pursue any other remedy hereunder
with respect to any Bond unless (i) an Event of Default of which
the Trustee has been notified has occurred and Bondholders
representing not less than 25% in principal amount of the
Outstanding Bonds shall have requested the Trustee in writing to
exercise its rights and remedies with respect thereto and shall
have offered the Trustee reasonable opportunity to do so and
indemnity as provided in Section 7.02(e), (ii) the Trustee shall
within 60 days thereafter fail to exercise any of such rights or
remedies, and (iii) during which 60 day period, the holders of a
majority principal amount of the Outstanding Bonds do not give
the Trustee a direction inconsistent with the request. No
Bondholder shall have any right to institute any action or pursue
any other remedy if and to the extent that the surrender,
impairment, waiver, or loss of the lien of this Indenture would,
under applicable law, result. Notwithstanding the foregoing,
each Bondholder shall have a right of action to enforce payment
of the principal of (and premium, if any) and (subject to the
rights of Bondholders of record on any special record date
established in respect of interest in default) interest on the
Bonds at and after the due dates thereof at the place, from the
sources and in the manner expressed in the Bonds.
Section 6.07. Performance of Company's Obligations. If the
Company shall fail to observe or perform any of its agreements or
obligations under the Facilities Agreement, the Issuer or the
Trustee may but shall not be obligated to perform the same in its
own name or in the Company's name and each is hereby irrevocably
appointed the Company's attorney-in-fact for such purpose.
Unless an Event of Default exists, the Issuer or the Trustee, as
the case may be, shall give at least five (5) days' notice to the
Company before taking action under this section, except that in
case of emergency as reasonably determined by the acting party,
it may act on lesser notice or give the notice promptly after
rather than before taking the action. The reasonable cost of any
such action performed by the Trustee or the Issuer shall be paid
or reimbursed by the Company within thirty (30) days after the
Trustee or the Issuer notifies the Company of such cost.
Section 6.08. Remedies Cumulative; No Waiver. The rights
and remedies under this Indenture shall be cumulative and shall
not exclude any other rights and remedies allowed by law,
provided there is no duplication of recovery. Neither the
failure to insist upon a strict performance of any of the
obligations of the Issuer or the Company nor the failure to
exercise any remedy for any violation thereof, shall be taken as
a waiver for the future of the right to insist upon strict
performance of the obligation or of the right to exercise any
remedy for the violation.
Section 6.09. Undertaking for Costs. The Trustee and the
Issuer agree, and each Bondholder by his acceptance of a Bond
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard for
the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.09 shall not
apply to any suit instituted by the Trustee, to any suit
instituted by any Bondholder, or group of Bondholders, holding
more than 25% in principal amount of the Outstanding Bonds, or to
any suit instituted by any Bondholder for the
enforcement of the payment of the principal of, or premium, if
any, or interest on any Bond on or after the maturity thereof
expressed in such Bond (or, in the case of redemption, on or
after the redemption date).
Section 6.10. Trustee May File Proofs of Claim. The
Trustee may file such proof of claim and other papers and
documents as may be necessary or advisable in order to have the
claim of the Trustee and the Bondholders allowed in any judicial
proceeding relating to the Company, its creditors or its
property.
ARTICLE VII: THE TRUSTEE
Section 7.01. Corporate Organization, Authorization and
Capacity. The Trustee represents and warrants that it is a
national banking association with fiduciary power and duly
licensed or qualified to do business in Louisiana, with the
capacity to exercise the powers and duties of the Trustee
hereunder, and that by proper corporate action it has duly
authorized the execution and delivery of this Indenture.
Section 7.02. Rights and Duties of the Trustee.
(a) Moneys to be Held in Trust. All moneys deposited with
the Trustee under this Indenture (other than amounts received for
its own use) shall be held by the Trustee in trust and applied
subject to the provisions of this Indenture, but need not be
segregated from other funds except as required herein or by law.
The Trustee shall have no liability in any respect whatsoever in
regards to any moneys deposited in the Paying Agent Subaccount.
(b) Accounts. The Trustee shall keep proper accounts of
its transactions hereunder (separate from its other accounts),
which shall be open to inspection at reasonable times by the
Issuer, the Company and the Bondholders and their representatives
duly authorized in writing.
(c) Performance of the Issuer's Obligations. If the Issuer
shall fail to observe or perform any agreement or obligation
contained in this Indenture, the Trustee may institute whatever
legal proceedings, and take any lawful actions, as may be
required to compel full performance by the Issuer of its
obligations, and in addition, the Trustee may, but shall not be
required, to whatever extent it deems appropriate for the
protection of the Bondholders, itself or the Company, perform any
such obligation in the name of the Issuer and on its behalf.
(d) Responsibility.
(i) Except during the continuance of an Event of
Default, (A) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth herein,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and (B) in the absence
of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and correctness of the
opinions expressed therein upon notices, certificates,
opinions, or other documents furnished to the Trustee and
conforming to the requirements of this Indenture; provided,
however, in the case of any such notices, certificates,
opinions, or other documents which by any provision hereof
are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Indenture.
(ii) In case an Event of Default has occurred and is
continuing, 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
person would exercise under the circumstances in the conduct
of such person's own affairs.
(iii) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its
willful misconduct, except that:
(A) the Trustee shall not be liable for any error
in judgment made in good faith, unless it be
proved that the Trustee was grossly negligent
in ascertaining the pertinent facts;
(B) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by
it in good faith in accordance with the
direction of the Bondholders as provided
herein relating to any of the matters in
respect of which the Bondholders may direct
the Trustee as referred to in Section 6.01,
Section 6.02, Section 6.06 or Section 9.01,
or elsewhere in this Indenture relating to
the time, method, and place of conducting any
proceeding for any remedy available to the
Trustee, or exercising any trust power
conferred upon the Trustee, under this
Indenture; and
(C) regardless of whether there is a Default or
an Event of Default, no provision of this
Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any
financial liability in the performance of its
duties hereunder, or in the exercise of any
of its right or powers, if it believes in
good faith that repayment of such funds or
adequate indemnity satisfactory to it is not
reasonably assured to it.
(iv) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or
affecting the liability or affording protection to the
Trustee shall be subject to the provisions of this Section
7.02(d).
(v) The Trustee shall be entitled to the advice of
counsel (who may be the Trustee's counsel, counsel for the
Issuer, the Company, or any Bondholder) and shall be wholly
protected as to any action taken or omitted to be taken in
good faith and reliance upon such advice. The Trustee may
execute any of the trusts or powers or perform any duties
hereunder, either directly or by or through agents,
attorneys, accountants, experts, or other professionals, and
may in all cases pay such reasonable compensation as it
shall deem proper to all persons as reasonably may be
required and employed in connection with the trusts hereof.
The Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney,
accountant, expert, or professional selected by it with
reasonable care. Notwithstanding Sections 6.07 and 7.02(c)
hereof, it shall not be the duty of the Trustee to see that
any duties or obligations herein imposed upon the Issuer,
the Company, or other Persons are performed, and the Trustee
shall not be liable or responsible for the failure of the
Issuer, the Company, or such other Person to perform any act
required of them by this Indenture or the Facilities
Agreement. The Trustee shall not be liable for any action
taken by it in good faith and reasonably believed by it to
be within the discretion or powers conferred upon it, in
good faith omitted to be taken by it and reasonably believed
to be beyond the discretion or powers conferred upon it,
taken by it pursuant to any direction or instruction by
which it is governed hereunder, or omitted to be taken by it
by reason of the lack of such direction or instruction or
other action by it as is called for hereby, in which case it
may defer such action pending receipt of such evidence, if
any, as it may reasonably require in support thereof and
shall be fully protected in relying upon any such evidence.
The Trustee shall in no event be liable for the application
or misapplication of funds, or for other acts or defaults by
any Person, except its own directors, officers, and
employees. No recourse shall be had by the Company, the
Issuer, the Bank, the Remarketing Agent or any Bondholder
for any claim based on this Indenture or any Bond against
any director, officer, employee, or agent of the Trustee
alleging personal liability on the part of such Person
except on account of bad faith, fraud, deceit or intentional
misapplication of funds. The recitals contained herein and
in the Bonds, except the Trustee's Certificate of
Authentication, shall be taken as the statements of the
Issuer or the Company, as the case may be, and the Trustee
assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or the Bonds or the validity
or sufficiency of the security therefor. The Trustee shall
not be held accountable for the use or application by the
Issuer or the Company of the Bonds or proceeds thereof. The
Trustee is not a party to, is not responsible for, and makes
no representations with respect to, matters set forth in any
Offering Circular or similar document prepared and
distributed in connection with the sale of the Bonds.
Neither the Trustee nor the Paying Agent shall be obligated
to pay interest on any money received by it except as they
may expressly agree. The Trustee shall not be responsible
for the preparation or filing of any financing statements,
amendments thereto, continuation statements or any
instruments of further assurance or collateral assignment.
(e) Limitations on Actions. The Trustee shall not be
required to monitor the financial condition of the Company or the
physical condition of the Facilities and, unless otherwise
expressly provided herein, shall not have any responsibility with
respect to notices, certificates or other documents filed with it
hereunder, except to make them available for inspection by the
Bondholders. The Trustee shall not be deemed to have knowledge
of and shall not be required to take notice of any Default or
Event of Default unless the Trustee shall be specifically
notified in writing at its principal corporate trust office by
the Company, the Issuer, the Bank or Bondholders representing not
less than 25% in principal amount of the Outstanding Bonds, or,
in the case of a Default or an Event of Default under Section
6.01(a)(i) relating to the payment of principal, premium, if any,
and interest on the Bonds, the Trustee shall be notified in
writing by the Paying Agent, and in the absence of such notices
so delivered, the Trustee may conclusively assume no Default or
Event of Default exists, and wherever in this Indenture a
provision exists that requires the Trustee to give a notice of
Default or of an Event of Default, the Trustee shall not be
required to give any such notice unless it has been notified of
such Default or Event of Default as in this Section 7.02(e)
provided. The Trustee shall not be required to take any remedial
action (other than the giving of notice) unless indemnity
reasonably satisfactory to it is furnished for any reasonable
expense or liability to be incurred therein, other than liability
for failure to meet the standards set forth in this section. The
Trustee shall be entitled to reimbursement from the Company for
its expenses reasonably incurred and extraordinary expenses
reasonably incurred or advances reasonably made, which
reimbursement shall be due and payable thirty (30) days after
notifying the Company of such expenses or advances, in the
exercise of its rights or the performance of its obligations
hereunder, whether or not it acts without previously obtaining
indemnity. Except as may otherwise be agreed by the Trustee, the
Trustee shall have no responsibility with respect to the
enforcement of any Credit Facility obtained in accordance
herewith.
A permissive right or power to act granted to the Trustee
herein shall not be construed as a requirement for the Trustee to
so act. Upon receipt of written notice, direction, instruction,
and indemnity as provided above and, after making such
investigation, if any, as it deems appropriate to verify the
occurrence of any Default of which it is notified by the
Bondholders, the Trustee shall pursue such remedies hereunder
(not contrary to such direction) as it deems appropriate for the
protection of the Bondholders.
(f) Financial Obligations. Nothing contained in this
Indenture shall in any way obligate the Trustee to pay any debt
or meet any financial obligations to any Person in relation to
the Facilities except from moneys received under the provisions
of this Indenture (including from the exercise of its rights and
remedies hereunder) other than moneys received for its own
purposes.
(g) Ownership of Bonds. The Trustee or any affiliate of
the Trustee may be or become the owner of Bonds with the same
rights as if it were not Trustee.
(h) No Surety Bond. The Trustee shall not be required to
furnish any bond or surety.
(i) Requests by the Company. Upon any request by the
Company to the Trustee to take any action under this Indenture
(including, but not limited to, any proposed amendment pursuant
to Section 10.01) the Trustee shall be entitled to receive from
the Company prior to taking such action, and to rely upon, a
certificate of a Company Representative and an opinion of counsel
reasonably satisfactory to the Trustee (who may be counsel to the
Company), and, if applicable in the reasonable judgment of the
Trustee, a certificate of an accountant satisfactory to the
Company (who may be an employee of the Company), each to the
effect that in the signer's opinion all conditions precedent
applicable to such action under this Indenture, if any, have been
satisfied (and, in the case of the certificate of the Company
Representative, including but not limited to the absence of any
Default or Event of Default) and such action is permitted by this
Indenture.
(j) Authentication of Bonds. The Trustee shall act as
authenticating agent for the Bonds. The Trustee may either sign
the Certificate of Authentication in its own name or may appoint
one or more agents to sign the Certificate of Authentication on
the Trustee's behalf. So long as Bonds are in the Flexible Mode,
the Daily Mode or the Weekly Mode, the Trustee shall use its best
efforts to have the ability to cause the Certificate of
Authentication to be executed at a location satisfactory to the
Paying Agent. The Trustee shall have no liability for the
negligence or wrongful conduct (in each case whether by act or
omission) of any such agent appointed with reasonable care. The
Trustee shall have no liability if, after its best efforts, it
finds that it does not have the ability (either directly or
through an agent) to cause the Certificate of Authentication to
be executed and delivered on a timely basis when Bonds are in the
Flexible Mode, the Daily Mode or the Weekly Mode. The Trustee or
any such authenticating agent appointed by it hereunder shall
authenticate and deliver any Bond or Bonds in substitution for
any Bond or Bonds entitled under any of the provisions of this
Indenture to be exchanged, transferred, or replaced on account of
destruction, theft, loss or mutilation, or otherwise.
Section 7.03. Fees and Expenses of the Trustee. The
Company shall pay to the Trustee reasonable compensation for its
services and pay or reimburse the Trustee for its reasonable
expenses and disbursements, including reasonable attorneys' fees
hereunder and fees for reasonable extraordinary services provided
hereunder and shall indemnify the Trustee to the extent required
by the Facilities Agreement. As security for the performance of
the obligations of the Company under this Section, the Trustee
shall have a lien prior to the Bonds upon all property and funds
held or collected by the Trustee as such, except funds held in
trust for the payment of principal of (and premium, if any) or
interest on the Bonds.
Section 7.04. Resignation or Removal of Trustee. The
Trustee may resign on not less than sixty (60) days' notice given
in writing to the Issuer, the Bondholders and the Company, but
such resignation shall not take effect until a successor has been
appointed and has assumed the duties hereunder. If the Trustee
has given notice of its resignation, the Trustee may petition a
court of competent jurisdiction for the appointment of a
temporary Trustee to serve as Trustee until a successor Trustee
has been duly appointed. The Trustee will promptly certify to
the other parties that it has mailed such notice to all
Bondholders and such certificate shall be conclusive evidence
that such notice was given in the manner required hereby. The
Trustee may be removed by written notice to the Issuer, the
Company and the Trustee from the Bondholders representing a
majority in principal amount of the Bonds Outstanding, but no
such resignation or removal shall take effect until a successor
has been appointed and assumed the duties hereunder. The
Trustee's rights of indemnity under Section ___ of the Facilities
Agreement and amounts due and payable to it shall survive any
such removal. A petition in a court of competent jurisdiction
for removal of the Trustee and the appointment of a successor may
be filed by the Bondholders representing not less than 25% in
principal amount of the Bonds Outstanding.
Section 7.05. Successor Trustee. Any corporation or
association which succeeds to the corporate trust business of the
Trustee as a whole, or substantially as a whole, whether by sale,
merger, consolidation or otherwise, shall become vested with all
the property, rights and powers of the Trustee hereunder, without
any further act or conveyance.
In case the Trustee resigns or is removed without giving
notice as required by Section 7.04, or becomes incapable of
acting, or becomes bankrupt or insolvent, or if a receiver,
liquidator or conservator of the Trustee or of its property is
appointed, or if a public officer takes charge or control of the
Trustee, or of its property or affairs, a successor shall be
appointed by the Company with the consent of the Issuer, which
consent shall not be unreasonably withheld upon written notice
from the Company to the Issuer. The Company shall notify or
cause to be notified the Bondholders of the appointment in
writing within twenty (20) days from the appointment. The
Company will promptly certify to the successor Trustee that it
has mailed such notice to all Bondholders and such certificate
will be conclusive evidence that such notice was given in the
manner required hereby. If no appointment of a successor is made
within twenty (20) days after the giving of written notice in
accordance with Section 7.04 or after the occurrence of any other
event requiring or authorizing such appointment, the outgoing
Trustee or any Bondholder may apply to any court of competent
jurisdiction for the appointment of such a successor, and such
court may thereupon, after such notice, if any, as such court may
deem proper, appoint such successor. Any successor Trustee
appointed under this Section shall be a trust company or a bank
having the powers of a trust company, shall have a capital and
surplus of not less than $50,000,000 and shall at the time of the
appointment be rated not less than Baa3/P-3 by Moody's. Any
such successor Trustee shall notify the Issuer and the Company of
its acceptance of the appointment and, upon giving such notice,
shall become Trustee, vested with all the property, rights and
powers of the Trustee hereunder, without any further act or
conveyance. Such successor Trustee shall, after payment of all
sums then owing to the Trustee hereunder, execute, deliver,
record and file such instruments as are required to confirm or
perfect its succession hereunder and any predecessor Trustee
shall from time to time execute, deliver, record and file such
instruments as the incumbent Trustee may reasonably require to
confirm or perfect any succession hereunder. Notwithstanding
anything else contained in this Indenture, any corporation into
which any Trustee hereunder may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which any Trustee hereunder shall be party, or
any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee shall be the successor
trustee under this Indenture, without the execution or filing of
any paper or any further act on the part of the parties hereto,
provided that such successor corporation continuing to act as the
Trustee shall meet the requirements of this Section 7.05, and if
such corporation does not meet said requirements, a successor
trustee shall be appointed pursuant to this Section 7.05.
ARTICLE VIII: THE ISSUER
Section 8.01. Limited Obligation. Under no circumstances
shall the Issuer be obligated directly or indirectly to pay
Costs of Issuance, principal of or premium, if any, and interest
on the Bonds, or expenses of operation, maintenance and upkeep of
the Facilities, except from Bond proceeds or from funds received
under this Indenture which may, in accordance herewith, be used
for such purposes, exclusive of funds received hereunder by the
Issuer for its own use. The obligation to pay the principal of,
premium, if any, and interest on the Bonds from the sources
described herein is solely and exclusively a special obligation
of the Issuer. No other entity, including the State of
Louisiana, any political subdivision thereof other than the
Issuer, or any other public body, is obligated, directly,
indirectly, contingently or in any other manner, to pay such
principal, premium or interest from any source whatsoever. The
Bonds shall not be considered general obligations of the Board of
Commissioners of the Issuer, the Issuer or the State of
Louisiana. The Bondholders shall never have the right to demand
payment of the Bonds out of any funds raised or to be raised by
taxation, or from any other funds except the sources described
herein. No physical property is encumbered by any lien or
security interest for the benefit of the registered owners of the
Bonds.
Section 8.02. Rights and Duties of the Issuer.
(a) Remedies of the Issuer. Notwithstanding any contrary
provision in this Indenture, the Issuer shall have the right to
take any action or make any decision with respect to proceedings
for indemnity against the liability of the Issuer and for
collection or reimbursement from sources other than moneys or
property held under this Indenture or subject to the lien hereof.
The Issuer may enforce its rights under this Indenture which have
not been assigned to the Trustee by legal proceedings for the
specific performance of any obligation contained herein or for
the enforcement of any other appropriate legal or equitable
remedy, and may recover damages caused by any breach by the
Company of its obligations to the Issuer under this Indenture,
including court costs, reasonable attorney's fees and other costs
and expenses incurred in enforcing such obligations.
(b) Limitations on Actions. The Issuer shall not be
required to monitor the financial condition of the Company or the
physical condition of the Facilities and, unless otherwise
expressly provided, shall not have any responsibility with
respect to notices, certificates or other documents filed with it
hereunder. The Issuer shall not be required to take notice of
any breach or default except when given notice thereof by the
Trustee. The Issuer shall not be required to take any action
unless indemnity reasonably satisfactory to it is furnished for
expenses or liability to be incurred therein (other than the
giving of notice). The Issuer, upon written request of the
Bondholders, the Bank, if any, or the Trustee, and upon receipt
of reasonable indemnity for expenses or liability, shall
cooperate to the extent reasonably necessary to enable the
Trustee to exercise any power granted to the Trustee by this
Indenture. The Issuer shall be entitled to reimbursement
pursuant to Section 8.03 to the extent that it acts without
previously obtaining full indemnity.
(c) Responsibility. The Issuer shall be entitled to the
advice of counsel (who may be counsel for any party, for the
Paying Agent or the Remarketing Agent, or for any Bondholder) and
shall be wholly protected as to any action taken or omitted to be
taken in good faith in reliance on such advice. The Issuer may
rely conclusively on any notice, certificate or other document
furnished to it under this Indenture and reasonably believed by
it to be genuine. The Issuer shall not be liable for any action
taken by it in good faith and reasonably believed by it to be
within the discretion or power conferred upon it, or in good
faith omitted to be taken by it and reasonably believed to be
beyond such discretion or power, or taken by it pursuant to any
direction or instruction by which it is governed under this
Indenture or omitted to be taken by it by reason of the lack of
direction or instruction required for such action under this
Indenture, unless such actions were taken or omitted to be taken
as a result of the Issuer's willful misconduct or gross
negligence, and the Issuer shall not be responsible for the
consequences of any error of judgment reasonably made by it.
When any payment, consent or other action by the Issuer is called
for by this Indenture, the Issuer may defer such action pending
such investigation or inquiry or receipt of such evidence, if
any, as it may require in support thereof. A permissive right or
power to act shall not be construed as a requirement to act, and
no delay in the exercise of a right or power shall affect the
subsequent exercise thereof. The Issuer shall in no event be
liable for the application or misapplication of funds, or for
other acts or defaults by any person or entity except by its own
directors, officers and employees. No recourse shall be had by
the Company, the Trustee or any Bondholder for any claim based on
this Indenture or the Bonds against any director, officer,
employee or agent of the Issuer unless such claim is based upon
the wilful misconduct, bad faith, fraud or deceit of such person.
No covenant, obligation or agreement of the Issuer contained in
this Indenture shall be deemed to be a covenant, obligation or
agreement of any present or future director, officer, employee or
agent of the Issuer in his individual capacity, and no person
executing a Bond shall be liable personally thereon or be subject
to any personal liability or accountability by reason of the
issuance thereof.
Section 8.03. Expenses of the Issuer. The Company shall
pay when due the Issuer's issuance fee and shall prepay or
reimburse the Issuer within thirty (30) days after notice for all
expenses (including reasonable attorney's fees) incurred by the
Issuer in connection with the remarketing of the Bonds and all
expenses reasonably incurred or advances reasonably made in the
exercise of the Issuer's rights or their performance of its
obligations hereunder. Any fees, expenses, reimbursements or
other charges which the Issuer may be entitled to receive from
the Company hereunder, if not paid when due, shall bear interest
at 10% per annum.
Section 8.04. Matters to be Considered by Issuer. In
approving, concurring in or consenting to action or in exercising
any discretion or in making any determination under this
Indenture, the Issuer may consider the interests of the public,
which shall include the anticipated effect of any transaction on
revenues and employment, as well as the interests of the other
parties hereto and the Bondholders; provided, however, nothing
herein shall be construed as conferring on any person other than
the other parties and the Bondholders any right to notice,
hearing or participation in the Issuer's consideration, and
nothing in this section shall be construed as conferring on any
of them any right additional to those conferred elsewhere herein.
Subject to the foregoing, the Issuer will not unreasonably
withhold any approval or consent to be given by it hereunder.
Section 8.05. Actions by Issuer. Any action which may be
taken by the Issuer hereunder shall be deemed sufficiently taken
if taken on its behalf by its President, its Vice President, its
General Manager, the Issuer Representative or by any other
director, officer or agent whom it may designate from time to
time.
ARTICLE IX: THE BONDHOLDERS
Section 9.01. Action by Bondholders. Subject to Section
6.02 and Section 10.01 (as to the waivers and consents granted
thereby), Bondholders representing a majority in principal amount
of the Outstanding Bonds shall have the right at any time, by
written notice to the Trustee and upon offering it indemnity as
provided in Section 7.02(e), to direct the Trustee (i) in the
granting of any consents, waivers or similar actions pertaining
to the Bonds, (ii) in the time, method and place of conducting
all proceedings, (iii) in the exercise of any rights or remedies
available to the Trustee hereunder, or (iv) in the exercise of
any other right or power conferred upon the Trustee for the
protection of the Bondholders, provided that such direction shall
be in accordance with the provisions of law and this Indenture,
and the Trustee may take any other action determined proper by
the Trustee which is not inconsistent with such direction.
Any request, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by Bondholders may be contained in and evidenced by one or
more writings of substantially the same tenor signed by the
Bondholders of the requisite percentage of principal amount of
Outstanding Bonds or their attorneys duly appointed in writing.
Proof of the execution of any such instrument, or of any
instrument appointing any such attorney, shall be sufficient for
any purpose of this Indenture (except as otherwise herein
expressly provided) if made in the following manner, but the
Issuer or the Trustee may nevertheless in its discretion require
further or other proof in cases where it deems the same
desirable:
The fact and date of the execution by any Bondholder or his
or her attorney of such instrument may be proved by the
certificate, which need not be acknowledged or verified, of an
officer of a bank or trust company satisfactory to the Issuer or
to the Trustee or of any notary public or other officer
authorized to take acknowledgements of the deeds to be recorded
in the state in which he purports to act, that the person signing
such request or other instrument acknowledged to him or her the
execution thereof, or by an affidavit of a witness of such
execution, duly sworn to before such notary public or other
officer. The authority of the person or persons executing any
such instrument on behalf of a corporate Bondholder may be
established without further proof if such instrument is signed by
a person purporting to be the president or a vice president of
such corporation with a corporate seal affixed and attested by a
person purporting to be its clerk or secretary or an assistant
clerk or assistant secretary.
The ownership of Bonds and the amount, numbers and other
identification, and date of holding the same shall be proved by
the registry books for the Bonds maintained by the Trustee.
Any request, consent or vote of the owner of any Bond shall
bind all future owners of such Bond. Bonds owned or held by or
for the account of the Issuer, the Company, or any related person
to the Company within the meaning of Section 147(a) of the Code
shall not be deemed Outstanding Bonds for the purpose of any
consent or other action by Bondholders except that for such
purposes Pledged Bonds shall be treated as Outstanding and shall
be deemed to be owned by the Bank. So long as no Default exists
under Section 6.01(a)(i) with respect to any Bonds supported by a
Credit Facility, the Bank and not the Bondholder shall be treated
as the owner of all Bonds entitled to the benefits of such Credit
Facility for the purposes of any consent or other action by
Bondholders.
ARTICLE X: MISCELLANEOUS
Section 10.01. Amendments.
(a) Without Bondholders' Consent. Subject to the approval
of the Company, the Trustee and the Issuer may from time to time,
without the consent of any Bondholder, except as otherwise
required by Section 10.01(b), amend or supplement this Indenture
in order to (i) cure any ambiguity, defect or omission in this
Indenture that does not materially adversely affect the interests
of the Bondholders, (ii) grant additional rights or security to
the Trustee for the benefit of the Bondholders, (iii) provide for
the benefit of some or all of the Bonds one or more Credit
Facilities, which may change the provisions for payment, remedies
and other matters in a way which affects the holders of Bonds
both covered and not covered by such Credit Facility, (iv) add
additional Events of Default as shall not be inconsistent with
the provisions of this Indenture and which shall not materially
adversely affect the interests of the Bondholders, (v) qualify
this Indenture under the Trust Indenture Act of 1939, as amended,
or corresponding provisions of federal laws from time to time in
effect, (vi) provide for the establishment of, or changes in, a
book entry system of registration for the Bonds through a
securities depository, (vii) effective upon any Conversion Date
to a new Mode, make any amendment affecting only the Bonds being
converted or (viii) make such other provisions in regard to
matters or questions arising under this Indenture as shall not be
inconsistent with the provisions of this Indenture and which
shall not in the opinion of Bond Counsel materially adversely
affect the interests of the Bondholders.
(b) With Bondholders' Consent. Subject to the approval of
the Company, except as set forth in Section 10.01(a), the Trustee
and the Issuer may from time to time amend this Indenture with
the consent of the owners of more than 50% in aggregate principal
amount of the Bonds Outstanding; provided, that no amendment
permitted by Section 10.01 (a) or (b) shall be made which
adversely affects the rights of some but less than all the Bonds
Outstanding without the consent of the owners of more than 50% in
aggregate principal amount of the Bonds so affected; and provided
further, that no amendment of this Indenture shall be effective
to (i) change the principal, premium or interest on any Bonds,
(ii) change the interest payment dates, maturity dates or
purchase or redemption provisions of any Bonds, (iii) reduce the
percentage of Bondholders whose consent is required for the
amendment of this Indenture or (iv) modify the lien upon or
pledge of the payments and other revenues assigned and pledged
hereunder, without the consent, in each case, of the owner of
each Bond which would be affected by the action proposed to be
taken.
(c) General. When the Trustee determines that the
requisite number of consents have been obtained for an amendment
which requires Bondholder consents, it shall, within ninety (90)
days, file a certificate to that effect in its records and mail
notice to the Company and the Bondholders. No action or
proceeding to invalidate the amendment shall be instituted or
maintained unless it is commenced within sixty (60) days after
such mailing. The Trustee will promptly certify to the Issuer
and the Company that it has mailed such notice to all Bondholders
and such certificate will be conclusive evidence that such notice
was given in the manner required hereby. A consent to an
amendment may be revoked by a notice given by the Bondholder and
received by the Trustee prior to the Trustee's certification that
the requisite consents have been obtained.
Any amendment of this Indenture shall be accompanied by an
opinion of Bond Counsel reasonably satisfactory to the Issuer and
the Trustee to the effect that the amendment is permitted by this
Indenture. The Trustee may, but shall not be required to,
execute any amendment to this Indenture which affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise. So long as a Credit Facility supports any of the
Bonds and the Bank is not in default thereunder, no amendment to
this Indenture shall be made without the consent of the Bank.
Notice of any amendment of this Indenture, or any material
change to the Reimbursement Agreement, the Credit Facility, the
Facilities Agreement or any remarketing agreement entered into by
the Remarketing Agent and the Company and notice of a change in
the identity of the entity serving as Trustee or Paying Agent
shall be sent by the Company to S&P.
Section 10.02. Notices.
(a) General. Unless otherwise expressly provided herein or
in the forms of the Bonds, all notices to the Issuer, the
Trustee, the Paying Agent, the Remarketing Agent, the Bank and
the Company shall be given either (i) in writing and shall be
deemed sufficiently given if sent by registered or certified
mail, postage prepaid, or delivered during a Business Day or (ii)
by telephone, provided that any notice given by telephone shall
be promptly followed by written notice delivered in accordance
with clause (i) of this sentence or by facsimile. Notices given
to the Issuer, the Trustee, the Paying Agent, the Company, the
Remarketing Agent and S&P may be given as follows:
(i) to the Issuer at: 150 Marine Street
Lake Charles, Louisiana 70609
Attention: Executive Director
Telephone (318) 493-3502
Facsimile (318) 439-3661;
(ii) to the Trustee or the
Paying Agent at: First National
Bank of Commerce
210 Baronne Street, 3rd Floor
New Orleans, Louisiana 70160
Attention: Corporate Trust Trustee
Administration
Telephone (504) 623-1519
Facsimile (504) 623-1432;
(iii) to the Company at: P.O. Box 31936
Lafayette, Louisiana
Attention: Chief Financial Officer
Telephone (318) 989-5819
Facsimile (318) 989-5752;
(v) to the Bank at:
Attention:
Telephone
Facsimile
(v) to S&P at: 25 Broadway
New York, New York 10004;
(vi) to the Remarketing Agent at Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10036
Attention: Short-term Municipal Desk
Telephone (212) 761-8688
Facsimile (212) 761-0585;
or, as to all of the foregoing, to such additional or other
address or addresses (including telephone and facsimile numbers)
as the addressee shall have indicated by prior written notice to
the one giving notice. Notice may be given to any future
Remarketing Agent in the manner set forth above in this Section
10.02(a) at the address specified in the applicable Remarketing
Agreement. All notices to a Bondholder shall be in writing and
shall be deemed sufficiently given if sent by first class mail,
postage prepaid, to the Bondholder at the address shown on the
registration books for the Bonds maintained by the Paying Agent.
A Bondholder may direct the Paying Agent to change its address as
shown on the registration books by written notice to the Paying
Agent. All notices to Bondholders shall identify the Bonds by
name, CUSIP number, date of original issuance, maturity date, and
such other descriptive information as may be needed to identify
accurately the Bonds.
All notices sent to Bondholders by the Trustee or Paying
Agent shall simultaneously be sent by registered or certified
mail, postage prepaid, to S&P, at least two (2) national
information services that publish or disseminate notices of
redemption of obligations such as the Bonds, such as S&P's Called
Bond Service and Kenney Information Systems Notification Service,
and all registered securities depositories that are registered
owners of the Bonds, provided that the failure to give such
notice shall not affect the validity of any notice given to the
Bondholders. The selection of the national information services
to receive any notice shall be at the sole discretion of the
Trustee or the Paying Agent, as the case may be.
Notice hereunder may be waived prospectively or retro
spectively by the person entitled to the notice, but no waiver
shall affect any notice requirement as to other persons.
(b) Rating Agencies. Notwithstanding anything herein to
the contrary, the Trustee shall give notice to S&P of any of the
following events which pertains to the Bonds then rated by S&P:
(i) the expiration or other termination, extension or
substitution of any Credit Facility, (ii) the redemption or
purchase of all Outstanding Bonds; (iii) the conversion of Bonds
to a new Mode; (iv) any modification of this Indenture, the
Facilities Agreement, a Credit Facility and (v) any change in the
entity serving as Remarketing Agent, Trustee or Paying Agent;
provided, however, that the Trustee makes this covenant as a
matter of courtesy and accommodation only and shall not be liable
to any Person for any failure to comply therewith.
Section 10.03. Time. All references to times of day in
this Indenture are references to prevailing Central time in the
State of Louisiana.
Section 10.04. Indenture Not for the Benefit of Other
Parties. This Indenture is not intended for the benefit of and
shall not be construed to create rights in parties other than the
Company, the Issuer, the Trustee, the Paying Agent, the Bank and
the Bondholders.
Section 10.05. Severability. In the event that any
provision of this Indenture shall be held to be invalid in any
circumstance, such invalidity shall not affect any other
provisions or circumstances.
Section 10.06. Counterparts. This Indenture may be
executed and delivered in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts
together shall constitute one and the same instrument.
Section 10.07. Captions. The captions and table of
contents of this Indenture are for convenience only and shall not
affect the construction hereof.
Section 10.08. Governing Law. This instrument shall be
governed by the laws of the State of Louisiana.
Section 10.09. Legal Holidays. In any case where the date
of maturity of interest on or principal of the Bonds or the date
fixed for purchase or redemption of any Bond shall not be a
Business Day, then payment of principal, purchase price, premium,
if any, or interest may not be made on such date but may be made
on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for
purchase or redemption, and, in the case of such payment, no
interest shall accrue from the period from and after such date.
IN WITNESS WHEREOF, the Issuer, acting through its Board of
Commissioners, has caused this Indenture to be executed in its
name, and for and on its behalf, by the President of the Issuer
and attested by the Secretary of the Issuer, and its corporate
seal to be hereunto affixed; and the Trustee, to evidence its
acceptance of the trusts hereby created and vested in it, has
caused this Indenture to be executed in its name, and for and on
its behalf by a Vice President, and its corporate seal to be
hereunto affixed, all as of the date first above written.
LAKE CHARLES HARBOR AND TERMINAL
DISTRICT
(SEAL)
By:__________________________________
President
ATTEST:
______________________________________
Secretary
(SEAL)
ATTEST FIRST NATIONAL BANK OF
COMMERCE
By:___________________________
Vice President
By:____________________________________
Asst. Vice President
(SEAL)
Exhibit A
Form of Request for Construction Account Draws
First National Bank of Commerce, as Trustee
210 Baronne Street, 3rd Floor
New Orleans, Louisiana 70160
Attention: Corporate Trust Trustee Administration
This request is made by an authorized representative of
Global Industries, Ltd. (the "Company") in accordance with
Section 3.02 of that certain Trust Indenture dated as of November
1, 1997 (the "Indenture") by and between Lake Charles Harbor and
Terminal District (the "Issuer") and First National Bank of
Commerce, as Trustee (the "Trustee"), pursuant to which the
Issuer has issued its Port Improvement Revenue Bonds (Global
Industries, Ltd. Project) Series 1997 (the "Bonds").
The Company hereby requests the Trustee to forward to the
Company from amounts on deposit in the Facilities Construction
Account established under Section 3.02 of the Indenture the
amount of $_________. The Company hereby certifies to the
Trustee and the Issuer as follows:
(i) the name and address of each person, firm or
corporation to whom payment is to be made from such
disbursement, or has been made, are as set forth on Schedule
A hereto;
(ii) the expenditures in summary form for which payment or
reimbursement is requested are set forth on Schedule B
hereto;
(iii) the amount requested to be disbursed is for costs
and expenses that have been properly incurred and is for
necessary and appropriate services or materials for the
acquisition, construction or improvement of the Facilities
(as such term is defined in the Indenture), and to the best
of the undersigned's knowledge, the fair value of such
services or materials is not exceeded by the amount the
Company is hereby requesting to be disbursed;
(iv) no part of the several amounts hereby requested to be
disbursed has been or is the basis for the payment of any
money in any previous or presently pending request;
(v) the payment of the amount requested will not result in
a breach of the covenants of the Company contained in the
Agreement (as such term is defined in the Indenture); and
(vi) at least 95 percent of the proceeds of the Bonds
excluding proceeds used to pay Costs of Issuance (as such
term is defined in the Indenture) will be used to provide
dock and wharf facilities described in Section 142(a)(2) of
the Internal Revenue Code of 1986.
The Company hereby requests that such funds be disbursed to
the Company by wire transfer to the account and pursuant to the
instructions specified on Schedule C hereto.
Respectfully submitted this ____ day of _____________, 199__,
Global Industries, Ltd.
___________________________
Printed Name:
___________________________
Title:
TRUST INDENTURE
TABLE OF CONTENTS
ARTICLE I: INTRODUCTION AND DEFINITION
Section 1.01. Description of the Indenture and the
Parties 1
Section 1.02. Definitions 2
(a) Words 2
(b) Number and Gender 10
(c) Use of Examples 10
(d) Reerences to Time 10
ARTICLE II: ISSUANCE OF BONDS; THE ASSIGNMENT AND PLEDGE;
DEFEASANCE OF THE INDENTURE
Section 2.01. Issuance of Bonds 10
Section 2.02. Assignment and Pledge of the Issuer 10
Section 2.03. Further Assurances 11
Section 2.04. Defeasance 11
(a) Payment, Advance Funding and Defeasance 11
(b) Notice of Redemption 12
(c) Use of Moneys and Government Obligations
Set Aside 12
(d) No Amendment 12
Section 2.05. Release of Indenture 12
ARTICLE III: THE BONDS
Section 3.01. The Bonds 13
(a) Forms of Bonds 13
(i) Form of Flexible Bond 13
(ii)nn [Reserved Section.]
(iii) Form of Daily Bond 24
(v)orm of Weekly Bond 27
(b) Details of the Bonds 62
(i) General 62
(ii) Book-Entry System 63
(c) Flexible Mode 65
(i) Determination of Flexible Rates 65
(ii) Conversions from the Flexible Mode 65
(iii)Mandatory Tender for Purchase 66
(d) Daily Mode 66
(i) Determination of Daily Rates 66
(ii) Conversions from Daily Mode 67
(iii)Bondholders' Option to Tender
Bonds in Daily Mode 68
(iv) Events Requiring Mandatory
Tender ofDaily Bonds 69
(A) Expiration of Credit Facility 69
(B) Change in Mode 69
(C) Substitution or Replacement of
Credit Facility 69
(e) Weekly Mode 69
(i) Determination of Weekly Rates 69
(ii) Conversions from Weekly Mode 70
(iii)Bondholders' Option to Tender
Bonds in Weekly Mode 71
(iv) Events Requiring Mandatory Tender of
Weekly Bonds 71
(A) 71
(B) Change in Mode 72
(C) Substitution or Replacement of
Credit Facility 72
(f) Multiannual Mode 72
(i) Determination of Multiannual Rate 72
(ii) Conversions from Multiannual Mode and
Changes of Rate Period 72
(iii)Mandatory Tender for Purchase 74
(iv) Specification of Redemption Periods and
Prices 74
(g) Favorable Opinion of Tax Counsel
Required for Certain Conversions. 74
(h) Partial Conversions 74
(i) Cancellation and Destruction of Bonds 75
(j) Replacement of Bonds 75
(k) Interest on Overdue Principal 76
Section 3.02. Construction Fund; Payments from Construction
Fund 76
Section 3.03. [Reserved Section] 79
Section 3.04 Debt Service Fund 79
(a) Establishment and Purpose 79
(b) Excess in Debt Service Fund 79
(c) Unclaimed Moneys 79
Section 3.05. Application of Moneys 80
Section 3.06. Payments by the Company 81
(a) Facilities Payments by the Company 81
(b) Additional Payments 81
(c) Drawings on the Credit Facility 81
(i) Debt Service 81
(ii) Tenders for Purchase 82
(iii)Use of Credit Facility 82
(d) Payment of Debt Service 82
(e) Company's Purchase of Bonds 83
Section 3.07. Unconditional Obligation 83
Section 3.08. Redemption of Bonds 83
(a) General 83
(b) Notice by the Company 84
(c) Payment of Redemption Price and
Accrued Interest 84
(d) Prerequisites to Optional Redemption;
Notice of Redemption 84
Section 3.09. Purchase of Bonds Tendered 84
(a) Procedure 85
(i) Notice 85
(ii)Sources of Payment 85
(b) Payments by the Paying Agent 86
Section 3.10. Remarketing of Bonds Tendered 86
(a) General 86
(b) Remarketing of Bonds Between Notice and
Redemption or Conversion Date 88
Section 3.11. Paying Agent 88
(a) Appointment and Responsibilities 88
(b) Removal or Resignation of
Paying Agent 91
(c) Successors 92
Section 3.12. Remarketing Agent 92
(a) Qualifications and
Responsibilities 92
(b) Removal or Resignation of
Remarketing Agent 93
(c) Successors 94
Section 3.13. Investments 94
Section 3.14. Reduction of Credit Facility on Change in
Mode 96
Section 3.15. Credit Facilities 96
(a) Substitution or Replacement 96
(b) Requirements 97
ARTICLE IV: TAX-EXEMPT STATUS
Section 4.01. Exemption from Federal Income Taxation 98
Section 4.02. Covenants Regarding Rebate 98
ARTICLE V: THE FACILITIES
Section 5.01. Facilities 100
ARTICLE VI: DEFAULT AND REMEDIES
Section 6.01. Default and Waiver 100
(a) Events of Default; Default 100
(i) Debt Service on Bonds;
Required Purchase 100
(ii) Other Obligations 101
(iii)Events of Bankruptcy 101
(iv) Reimbursement Agreement 101
(v) Non-Reinstatement under the
Credit Facility 102
(b) Waiver 102
Section 6.02. Acceleration 102
(a) Bonds Not Supported by a
Credit Facility 102
(b) Bonds Supported by a
Credit Facility 103
Section 6.03. Court Proceedings 103
Section 6.04. Revenues after Default 103
Section 6.05. The Credit Facility; Acceleration 104
Section 6.06. Rights of Bondholders 104
Section 6.07. Performance of Company's Obligations 104
Section 6.08. Remedies Cumulative; No Waiver 105
Section 6.09. Undertaking for Costs 105
Section 6.10. Trustee May File Proofs of Claim 105
ARTICLE VII: THE TRUSTEE
Section 7.01. Corporate Organization, Authorization and
Capacity 105
Section 7.02. Rights and Duties of the Trustee 106
(a) Moneys to be Held in Trust 106
(b) Accounts 106
(c) Performance of the Issuer's
Obligations 106
(d) Responsibility 106
(e) Limitations on Actions 108
(f) Financial Obligations 109
(g) Ownership of Bond 109
(h) No Surety Bond 109
(i) Requests by the Company 109
(j) Authentication of Bonds 110
Section 7.03. Fees and Expenses of the Trustee 110
Section 7.04. Resignation or Removal of Trustee 110
Section 7.05. Successor Trustee 111
ARTICLE VIII: THE ISSUER
Section 8.01. Limited Obligation 112
Section 8.02. Rights and Duties of the Issuer 112
(a) Remedies of the Issuer 112
(b) Limitations on Actions 112
(c) Responsibility 113
Section 8.03. Expenses of the Issuer 113
Section 8.04. Matters to be Considered by Issuer 113
Section 8.05. Actions by Issuer 114
ARTICLE IX: THE BONDHOLDERS
Section 9.01. Action by Bondholders 114
ARTICLE X: MISCELLANEOUS
Section 10.01. Amendments 115
(a) Without Bondholders' Consent 115
(b) With Bondholders' Consent 116
(c) General 116
Section 10.02. Notices 117
(a) General 117
(b) Rating Agencies 118
Section 10.03. Time 118
Section 10.04. Indenture Not for the Benefit of Other
Parties 118
Section 10.05. Severability 119
Section 10.06. Counterparts 119
Section 10.07. Captions 119
Section 10.08. Governing Law 119
Section 10.09. Legal Holidays 119
Exhibit 10.5
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT, dated as of November 1,
1997, is from Global Industries, Ltd., a Louisiana corporation
("Pledgor"), and Bank One, Louisiana, National Association, a
national banking association (the "Bank").
RECITALS
The Pledgor acknowledges the following:
A. The Lake Charles Harbor and Terminal District (the
"Issuer"), will issue $28,000,000.00 in aggregate principal
amount of its Port Improvement Revenue Bonds, Series 1997 (the
"Bonds"), pursuant to a Trust Indenture dated as of November 1,
1997 (as amended and supplemented from time to time, the
"Indenture") between the Issuer and First National Bank of
Commerce, as Trustee (the "Trustee").
B. Pursuant to a Reimbursement Agreement dated as of
November 1, 1997 between the Pledgor and the Bank (the
"Reimbursement Agreement"), the Bank will issue its irrevocable
letter of credit (the "Letter of Credit") in favor of the
Trustee.
C. The Indenture requires the Trustee to purchase Bonds or
Beneficial Ownership Interests (as defined in the Letter of
Credit) from the Beneficial Owners (as defined in the Letter of
Credit) thereof on such terms and conditions as are set forth in
the Indenture and to register such purchased Bonds or Beneficial
Ownership Interests (to the extent the purchase price for such
purchase is obtained by a drawing under the Letter of Credit)
(the "Pledged Bonds") as directed by the Bank.
D. It is a condition precedent to the issuance of the
Letter of Credit by the Bank and to the execution of the
Reimbursement Agreement by the Bank that the Pledgor shall have
executed and delivered this Pledge and Security Agreement to the
Bank.
AGREEMENTS
In consideration of the Recitals and to induce the Bank to
enter into the Reimbursement Agreement and issue the Letter of
Credit, the Pledgor hereby agrees as follows for the benefit of
the Bank:
1. Defined Terms. Capitalized terms not otherwise defined
herein shall have the meanings assigned in the Reimbursement
Agreement.
2. Pledge. The Pledgor hereby pledges, assigns,
hypothecates, transfers and delivers to the Bank all of the
Pledgor's right, title and interest in and to the Pledged Bonds
and hereby grants to the Bank a first lien on, and security
interest in, such Pledgor's right, title and interest in and to
the Pledged Bonds, the interest thereon and all proceeds thereof
(collectively, the "Collateral"), as security for the prompt and
complete payment when due of all obligations of the Pledgor set
forth in the Reimbursement Agreement, the Borrower Documents, and
all documents executed by either Pledgor in connection therewith
(the "Obligations").
3. Interest on the Bonds. If, while this Pledge and
Security Agreement is in effect, either Pledgor shall become
entitled to receive or shall receive any interest payment in
respect of the Pledged Bonds, the receiving Pledgor agrees to
accept the same as the Bank's agent and to hold the same in trust
on behalf of the Bank and to deliver the same forthwith to the
Bank. All such interest payments received by the Bank shall be
credited against the obligation of the Pledgor to pay interest to
the Bank with respect to the Pledged Bonds as set forth in the
Reimbursement Agreement.
4. Release of Pledged Bonds. The Bank agrees to release
the Pledged Bonds from the lien of this Pledge and Security
Agreement and deliver the Pledged Bonds to the Remarketing Agent
in accordance with Section 6 of the Reimbursement Agreement.
5. Rights of the Bank. The Bank shall not be liable for
failure to collect or realize upon the Collateral, or any part
thereof, or for any delay in so doing, nor shall it be under any
obligation to take any action whatsoever with regard thereto. If
an Event of Default has occurred and is continuing, the Bank may,
without notice, exercise all rights, privileges or options
pertaining to any Pledged Bonds as if it were the absolute owner
thereof, upon such terms and conditions as it may determine, all
without liability except to account for property actually
received by the Bank, but the Bank shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not
be responsible for any failure to do so or delay in so doing.
6. Representations Warranties and Covenants of the
Pledgor. The Pledgor represents and warrants that (a) on the
date of delivery to the Bank of any Pledged Bonds, neither the
Issuer nor the Trustee will have any right, title or interest in
and to the Pledged Bonds; (b) it has, and on the date of delivery
to the Bank of any Pledged Bonds will have, full power, authority
and legal right to pledge all of its right, title and interest in
and to the Pledged Bonds pursuant to this Pledge and Security
Agreement; and (c) the pledge, assignment and delivery of such
Pledged Bonds pursuant to this Pledge and Security Agreement will
create a valid first priority security interest in, all right,
title or interest of each Pledgor in or to such Pledged Bonds,
and the proceeds thereof, subject to no prior pledge, lien,
mortgage, hypothecation, security interest, charge, option or
encumbrance or to any agreement purporting to grant to any third
party a security interest in the property or assets of Pledgor
which would include the Pledged Bonds. The Pledgor covenants and
agrees that such Pledgor will defend the Bank's right, title and
security interest in and to the Collateral against the claims and
demands of all persons whomsoever.
7. No Dispositions, etc. Without the prior written
consent of the Bank, the Pledgor agrees to not sell, assign,
transfer, exchange or otherwise dispose of, or grant any option
with respect to, the Collateral, nor to create, incur or permit
to exist any pledge, lien, mortgage, hypothecation, security
interest, charge, option or any other encumbrance with respect to
any of the Collateral, or any interest therein, or any proceeds
thereof, except for the lien and security interest provided for
by this Pledge and Security Agreement.
8. Further Assurances. The Pledgor agrees that, at any
time and from time to time upon the written request of the Bank,
Pledgor will execute and deliver such further documents and do
such further acts and things as the Bank may reasonably request
in order to effect the purposes of this Pledge and Security
Agreement.
9. Severability. Any provision of this Pledge and
Security Agreement which is prohibited or unenforceable in any
jurisdiction shall as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10. No Waiver; Cumulative Remedies. The Bank shall not, by
any act, delay, omission or otherwise be deemed to have waived
any of its rights or remedies hereunder and no waiver shall be
valid unless in writing, signed by the Bank, and then only to the
extent therein set forth. A waiver by the Bank of any right or
remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Bank would otherwise have on
any future occasion. No failure to exercise nor any delay in
exercising on the part the Bank, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
11. Binding Effect. This Pledge and Security Agreement and
all obligations of the Pledgor hereunder shall be binding upon
the successors, assigns, heirs, and personal representatives of
the Pledgor, and shall, together with the rights and remedies of
the Bank hereunder, inure to the benefit of the Bank and its
successors and assigns. This Pledge and Security Agreement shall
be governed by, and construed and interpreted in accordance with,
the laws of the State of Louisiana.
GLOBAL INDUSTRIES, LTD.
By:
Name:
Title:
BANK ONE, LOUISIANA, NATIONAL ASSOCIATION
By:
Rose M. Miller, Vice President