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EXHIBIT 4.(II)(E)(5)
Contract No.
MA-13626
AUTHORIZATION AGREEMENT
Between
THE UNITED STATES OF AMERICA
represented by the Secretary of Transportation
and
BANK OF NEW YORK
as Indenture Trustee under the
Trust Indenture dated October 16, 2000
between it and
CAPE MAY LIGHT, L.L.C.
a Delaware limited liability company
Dated October 16, 2000
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AUTHORIZATION AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE BANK OF NEW YORK, INDENTURE TRUSTEE
(Under Title XI, Merchant Marine Act, 1936, as amended)
THIS AUTHORIZATION AGREEMENT, dated October 16, 2000 is entered into
between (i) the UNITED STATES OF America, represented by the SECRETARY OF
TRANSPORTATION, acting by and through the MARITIME ADMINISTRATOR (the
"Secretary"), and (ii) The Bank of New York, a New York banking corporation, as
the Indenture Trustee under the Trust Indenture dated the date hereof between
the Indenture Trustee and Cape May Light, L.L.C., a Delaware limited liability
company (the "Shipowner").
RECITALS
A. Under the provisions of Title XI of the Merchant Marine Act, 1936,
as amended (the "Act"), the Secretary has determined that the requirements of
the Act with respect to the Guarantees and the Obligations proposed to be issued
under the Indenture have been met; and
B. The Secretary and the Indenture Trustee have entered into this
Authorization Agreement in order (1) to authorize the Indenture Trustee to
endorse and execute by means of a facsimile signature of the Secretary and a
facsimile seal of the U.S. Department of Transportation and to authenticate on
each of the Obligations the Guarantee of the United States pursuant to the terms
of the Indenture, (2) to agree upon the procedures whereby the Indenture Trustee
or any Holder of any Outstanding Obligation, as agent and attorney-in-fact for
the Holders of all Outstanding Obligations, as provided in the Indenture, will
make demand upon the Secretary for payment of the Guarantees, and (3) to provide
for the payment of the Guarantees by the Secretary to the Indenture Trustee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
EXECUTION, AUTHENTICATION AND DELIVERY OF THE GUARANTEES
Section 1.01. Authorization to Imprint, Authenticate and Deliver.
(a) The Secretary hereby authorizes and directs the Indenture Trustee
to cause the Guarantees, the facsimile signature of the Maritime Administrator
or the Acting Maritime Administrator, and facsimile seal of the U.S. Department
of Transportation to be imprinted upon Obligations consisting of the Bonds,
attached to the Indenture as Exhibit 2 and issued in accordance with Article II
and Article III of the Indenture. The form of the Guarantee to be imprinted on
the Obligation is as follows:
"The United States of America, represented by the Secretary of
Transportation, acting by and through the Maritime Administrator,
pursuant to Title XI of the Merchant Marine Act, 1936, as amended,
hereby guarantees to the holder of the Obligation, annexed hereto, upon
demand of the holder or his agent, payment of the unpaid interest on,
and the unpaid balance of the principal of, such Obligation, including
interest accruing between the date of default under such Obligation,
and the payment in full of the Obligation under this Guarantee. The
full faith and credit of the United States of America is pledged to the
payment of this Guarantee. The validity of this Guarantee is
incontestable in the hands of any holder of such Obligation Payment of
this Guarantee will be made in accordance with the provisions of such
Obligation.
UNITED STATES OF AMERICA
SECRETARY OF TRANSPORTATION
(SEAL) By
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Maritime Administrator"
(b) The Secretary hereby authorizes and directs the Indenture Trustee
to authenticate the Obligations and Guarantees thereon, and to deliver such
Obligations and Guarantees in accordance with the Indenture and herewith.
(c) Once an Obligation has been imprinted with the Guarantees, the
requisite facsimile signatures and seals, authenticated by the Trustee and
delivered to the Holders, then that Obligation shall bind the United States
regardless of the fact that the individual signing as such Maritime
Administrator or Acting Maritime Administrator ceased to hold such office prior
to the authentication and delivery of the Obligation bearing such Guarantee, or
did not hold such office on the date of such Obligation.
Section 1.02. Issuance of Obligations. The Indenture Trustee is
authorized to execute, authenticate and deliver the Guarantees in the manner set
forth in Section 1.01 above, only in accordance with the Obligations issued
under Sections 2.01, 2.02, 2.07, 2.09 and 3.10 (b) of the Indenture.
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ARTICLE II
DEMAND FOR PAYMENT OF GUARANTEES
Section 2.01. Default under the Indenture.
(a) In the event of any Indenture Default, the Indenture Trustee or any
Holder of an Outstanding Obligation may demand, in accordance with the
provisions of Section 6.02 of the Indenture, on behalf of the Holders of all the
Obligations then Outstanding, payment by the Secretary of the unpaid principal
and interest to the date of payment on all Outstanding Obligations.
(b) Within 30 days from the date of any demand for payment made
pursuant to paragraph (a) of this Section, the Secretary shall pay to the
Indenture Trustee as agent and attorney-in-fact for the Holders of the
Outstanding Obligations, all the unpaid interest to the date of such payment on,
and the unpaid balance of the principal of, all Outstanding Obligations as
aforesaid in full, in cash; provided that, in the case of a demand made as a
result of a Payment Default, the Secretary shall not be required to make such
payment if (i) prior to such demand the Secretary shall have assumed the
Obligations pursuant to Section 6.09 of the Indenture or (ii) prior to the
expiration of such 30-day period subsequent to such demand and prior to any
payment of the Guarantees by the Secretary, he shall find there was no Payment
Default or that such Payment Default had been remedied prior to such demand, and
in any such case the Guarantees shall remain in full force and effect. The
Secretary shall give prompt written notice to the Shipowner and the Indenture
Trustee of each such finding.
Section 2.02. Payment of the Guarantees. The Secretary and the
Indenture Trustee confirm that, in accordance with the provisions of the
Obligations and the Indenture, the payment of the Guarantees as provided in
Section 2.01 by the Secretary to the Indenture Trustee, as agent and
attorney-in-fact for the Holders of all Outstanding Obligations, shall be made
by the Secretary to, and accepted by, the Indenture Trustee, solely for the
benefit of the Holders of Outstanding Obligations, as payment in full of the
Outstanding Obligations, and that such Obligations will thereupon cease to be
Obligations of the Shipowner.
ARTICLE III
REPRESENTATIONS AND COVENANTS OF THE INDENTURE TRUSTEE
Section 3.01. Consent of the Secretary. The Indenture Trustee covenants
that it will not, without the written consent of the Secretary, and then only
upon such conditions, if any, as may be specified in such consent, (a) take or
participate in the taking of any action which, by the terms of the Indenture,
may require the consent of the Secretary, or (b) enter into any amendment or
supplement to the Indenture, or waive any condition of the Indenture, except in
the case of any such waiver as the Indenture may expressly permit.
Section 3.02. Authorization, Execution and Delivery. The Indenture
Trustee represents and warrants that it has satisfied all requirements of law
for its due execution and delivery of this
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Authorization Agreement and upon execution and delivery hereof, this
Authorization Agreement will constitute a valid and legally binding obligation
of the Indenture Trustee, enforceable in accordance with its terms.
Section 3.03. Agreements of Indenture Trustee. The Indenture Trustee
agrees that it shall:
(a) Furnish to the Secretary a written statement of the principal
amount, interest rate, Stated Maturity and date of delivery of any (1)
Obligations that are authenticated and delivered in accordance with Sections
2.01 and 2.02 of the Indenture on the date hereof and on each subsequent date of
delivery of each tranche; and (2) Obligations that are authenticated and
delivered by the Indenture Trustee under Section 1.02 and 1.03 hereof within 15
Business Days after each such delivery.
(b) Permit the Secretary, at all reasonable times upon request, to make
such reasonable, material and pertinent examinations and audits of its records
and books of account and take such information as the Secretary deems reasonable
pertaining to the Indenture, the Obligations, the Guarantees and this
Authorization Agreement, and all matters related thereto; and
(c) Furnish to the Secretary, promptly upon request, such reasonable,
material and pertinent reports, evidence, proof or information, in addition to
that furnished under other provisions hereof, bearing on matters pertaining to
the Indenture, the Obligations, and the Guarantees, and acts performed by the
Indenture Trustee with respect thereto, as the Secretary may reasonably deem
necessary or appropriate.
ARTICLE IV
GENERAL PROVISIONS
Section 4.01. Definitions. For all purposes of this Authorization
Agreement, unless otherwise expressly provided or unless the context otherwise
requires, capitalized terms not specifically defined herein shall have the
respective meanings given in Schedule A to the Indenture.
Section 4.02. Secretary's Agreements. The Secretary agrees that:
(a) This Authorization Agreement and the Guarantees of the Obligations
are made and entered into pursuant to Title XI of the Act, and conclusively
evidence the eligibility of the Obligations for the Guarantees, and the validity
of the Guarantees shall be incontestable;
(b) The obligations of the United States to pay the Guarantees shall be
subject to no conditions whatsoever, express or implied, except that demand
shall have been made therefor by the Indenture Trustee or any Holder of an
Outstanding Obligation not later than 60 days from the date of an Indenture
Default that shall have occurred and be continuing, it being the intent of the
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United States that the Guarantees will be paid under any and all circumstances
upon demand duly made therefor; and
(c) In the event of an Indenture Default of which the Secretary has
actual knowledge, the Secretary will publish notice in the Authorized Newspaper
of the occurrence of such Indenture Default within 30 days from the date of such
Indenture Default, unless demand for payment under the Guarantees shall
previously have been made by the Indenture Trustee, but any failure to publish
such notice or any defect therein shall not affect in any way any rights of the
Indenture Trustee or any Holder of an Obligation with respect to such Indenture
Default, or in any way affect the rights of the Secretary.
Section 4.03. Benefits to Holders of Obligations. All authorizations
and directions to authenticate and deliver Obligations and Guarantees, and all
other agreements of the Secretary herein are made with the Indenture Trustee
for, and shall inure to, the benefit of all Holders of the Obligations. The
agreements of the Indenture Trustee herein are made with the Secretary for, and
shall inure to, the benefit of all Holders of the Obligations.
Section 4.04. Successor Indenture Trustee; Amendments and Supplements.
The authority and direction granted to the Indenture Trustee hereby, and all
rights of the Indenture Trustee hereunder, are granted to and shall accrue to
the benefit of any Person who from time to time acts as successor Indenture
Trustee, pursuant to the terms of Article VII of the Indenture; provided that,
such successor Indenture Trustee and the Secretary shall have entered into an
amendment hereto whereby such successor Indenture Trustee agrees to fulfill the
obligations of the Indenture Trustee hereunder. Except as provided in the
preceding sentence, this Authorization Agreement may not be amended or
supplemented in any regard whatever, nor may the rights or obligations of the
Indenture Trustee hereunder be assigned to any other Person, except by a writing
duly executed by the Indenture Trustee and the Secretary.
Section 4.05. Effective Period. This Authorization Agreement and the
authorization and direction to authenticate and deliver Guarantees granted to
the Indenture Trustee (or any successor Indenture Trustee) shall have effect
from the date hereof until termination upon, and only upon, the occurrence of
one or both of the following events:
(a) When the Indenture shall have been satisfied and discharged in
accordance with Section 12.01 thereto; or
(b) When the Guarantees of all the Outstanding Obligations shall have
been terminated in accordance with Section 6.04(a) of the Indenture.
Section 4.06. Payments, Notices or Other Communications. Except as
otherwise provided herein, all payments, notices or other communications
provided for herein may be made or delivered in person, or by registered or
certified mail, postage prepaid, addressed to the party at the address of such
party specified below, or at such other address as such party shall advise the
other party by written notice, and shall be effective upon mailing or delivery
in person.
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The addresses of the Secretary and the Indenture Trustee are as
follows:
SECRETARY OF TRANSPORTATION
c/o Maritime Administrator
Department of Transportation
400 Seventh Street, S.W.
Washington, D.C. 20590
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Administration
Section 4.07. Execution of Counterparts. This Authorization Agreement
may be executed in any number of counterparts. All such counterparts shall be
deemed to be originals, and shall together constitute but one and the same
instrument.
Section 4.08. Titles and Headings. The titles of the Articles and the
headings of the Sections are not a part of this Authorization Agreement, and
shall not be deemed to affect the meaning or construction of any of its
provisions.
Section 4.09. Conformity with Regulations. The Secretary hereby affirms
that, with respect to the rights of the Indenture Trustee and the Holders, this
Authorization Agreement conforms to its existing regulations governing the
issuance of commitments to guarantee and guarantees under Title XI of the Act.
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IN WITNESS WHEREOF, this Authorization Agreement has been duly executed
by the parties hereto as of the day and year first above written.
UNITED STATES OF AMERICA,
SECRETARY OF TRANSPORTATION
BY: MARITIME ADMINISTRATOR
/ s / Joel C. Richard
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Secretary
ATTEST:
/ S / SARAH J. WASHINGTON
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Assistant Secretary
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INDENTURE TRUSTEE: THE BANK OF NEW YORK
/ s / Mary LaGumina
By
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Name: Mary LaGumina
Title: Vice President
ATTEST:
/ s / Remo Reale
By
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