EXHIBIT 4.16
TRUSTEE AGREEMENT
This TRUSTEE AGREEMENT (this "Trustee Agreement") is dated as of the 26th
day of August, 2004, between AVONDALE ▇▇▇▇▇, INC., an Alabama corporation (the
"Company"), AVONDALE INCORPORATED, a Georgia corporation, and WACHOVIA BANK
NATIONAL ASSOCATION, a national banking association (the "Trustee"), as Trustee.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the form of Floating Rate Senior Note of the Company attached
hereto as Exhibit A.
WHEREAS, the Company has issued $32,702,500.00 principal amount of its
Floating Rate Senior Notes due July 1, 2012 (together with additional Floating
Rate Senior Notes that may from time to time be added to this agreement, the
"New Notes") pursuant to Exchange Agreements dated as of August 26, 2004 (the
"Exchange Agreement"); and
WHEREAS, the Company wishes to engage the Trustee to act, and the Trustee
is willing to act, as Trustee, Registrar and Paying Agent with respect to the
New Notes;
NOW THEREFORE, for valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
Section 1 Paying Agency.
(a) There is hereby created a Payment Fund with the Trustee into which the
Company shall deposit from time to time amounts necessary to fund its
obligations under the New Notes.
(b) On or prior to each due date of the principal and interest on the New
Notes, the Company shall deposit with the Trustee a sum sufficient to pay such
principal and interest when so becoming due.
(c) On or prior to each due date of the principal and interest on the New
Notes, the Company will also provide the Trustee with a calculation of amounts
owing per $1,000 principal amount of New Notes and an instruction as to the date
payment is to be made on the Notes. On such date for payment of amounts owing on
the New Notes, the Trustee will wire the appropriate payments to the holders of
Notes, as shown on the register as of the corresponding record date.
(d) The Trustee shall not be obligated to make any payment hereunder
unless (i) on or prior to the date and time of such payment, sufficient funds
have been deposited into the Payment Fund and (ii) any indemnification then due
and payable to the Trustee by the Company has been paid.
Section 2 Registrar.
(a) On the date hereof, the Company has delivered to the Trustee, a
register of the New Notes subject to this Trustee Agreement.
(b) The Trustee hereby agrees that it will hereafter keep a register of
the New Notes and of their transfer and exchange.
(c) The Trustee acknowledges that, in addition to the New Notes made
subject to this Trustee Agreement on the date hereof, additional Floating Rate
Senior Notes of the Company are currently outstanding or may be issued by the
Company from time to time, and the Company may, from time to time, inform the
Trustee as to additional New Notes that are to be added to the register of New
Notes and become subject to the terms of this Trustee Agreement.
(d) The Trustee shall retain copies of all letters, notices and other
written communications received from the holders of the New Notes. The Company
shall have the right to inspect and make copies of all such letters, notices or
other written communications at any reasonable time upon the giving of
reasonable written notice to the Trustee.
(e) The Company shall promptly deliver to the Trustee copies of any
notices or waivers received by the Company from any holder of the New Notes that
(a) were issued prior to August __, 2004 and (b) are not included in the
register of the New Notes.
Section 3 Defaults and Remedies. An "Event of Default" occurs if:
(a) the Company defaults in any payment of interest on the New Notes when
the same becomes due and payable, and such default continues for a period of 30
days;
(b) the Company (i) defaults in the payment of the principal of the New
Notes when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or otherwise or
(ii) fails to redeem or purchase the New Notes when required pursuant to the
terms hereof;
(c) the Company or the Guarantor fails to comply with Section 4 of the New
Notes;
(d) the Company fails to comply with Section 3 of the New Notes and such
failure continues for 30 days after the notice specified below;
(e) the Company or the Guarantor fails to comply with any of its
agreements set forth in the New Notes (other than those referred to in clause
(a), (b), (c) or (d) above) and such failure continues for 60 days after the
notice specified below;
(f) Indebtedness of the Company, the Guarantor or any Significant
Subsidiary is not paid within any applicable grace period after final maturity
or is accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10,000,000 or its
foreign currency equivalent;
(g) the Company, the Guarantor or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
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(1) commences a voluntary case;
(2) consents to the entry of an order for relief against it in
an involuntary case;
(3) consents to the appointment of a Custodian of it or for
any substantial part of its property; or
(4) makes a general assignment for the benefit of its
creditors; or
(5) takes any comparable action under any foreign laws
relating to insolvency;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against the Company, the Guarantor or any
Significant Subsidiary in an involuntary case;
(2) appoints a Custodian of the Company, the Guarantor or any
Significant Subsidiary or for any substantial part of its property;
(3) orders the winding up or liquidation of the Company, the
Guarantor or any Significant Subsidiary; or
(4) any similar relief is granted under any foreign laws and
the order or decree remains unstayed and in effect for 60 days;
(i) any judgment or decree for the payment of money in excess of
$10,000,000 or its foreign currency equivalent at the time is entered
against the Company, the Guarantor or any Significant Subsidiary, remains
outstanding for a period of 60 days following the entry of such judgment
or decree and is not discharged, waived or the execution thereof stayed
within 10 days after the notice specified below; or
(j) the Guaranty ceases to be in full force and effect (other than
in accordance with the terms of the Guaranty) or the Guarantor denies or
disaffirms its obligations under the Guaranty.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clauses (d), (e) or (i) is not an Event of Default until
the Trustee or holders of at least 25% in principal amount of the outstanding
New Notes at the time of such Default notify the Company of the Default and the
Company does not cure such Default within the time specified after receipt of
such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default."
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The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (f) or (j) and any event which with the giving
of notice or the lapse of time would become an Event of Default under clause
(d), (e) or (i), its status and what action the Company is taking or proposes to
take with respect thereto.
Section 4 Acceleration, Waivers of Past Defaults, Waiver of Stay or
Extension Laws, Right to Receive Payment.
(a) Acceleration. If an Event of Default occurs and is continuing
(other than an Event of Default specified in Section 11(g) or (h) of the
New Notes with respect to the Company or the Guarantor), the Trustee by
written notice to the Company, or the holders of at least 25% in principal
amount of the New Notes by written notice to the Company and the Trustee,
may declare the principal of and accrued but unpaid interest on the New
Notes to be due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default
specified in Section 11(g) or (h) with respect to the Company or the
Guarantor occurs, all principal of and interest on the New Notes shall
ipso facto become and be immediately due and payable without any
declaration or other act on the part of the holder. The holders of a
majority in principal amount of the New Notes may by notice to the Company
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that
has become due solely because of acceleration. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
(b) Waiver of Past Defaults. The holders of a majority in principal
amount of the New Notes by notice to the Company may waive an existing
Default and its consequences except (i) a Default in the payment of the
principal of or interest on a New Note or (ii) a Default in respect of a
provision that under Section 10(b) of the New Notes cannot be amended
without the consent of each holder of New Notes affected. A Default in
respect of a provision that requires the consent of 75% of the outstanding
aggregate principal amount of the New Notes to any amendment may only be
waived by the holders of 75% of the outstanding aggregate principal amount
of the New Notes. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right.
(c) Right to Receive Payment. Notwithstanding any other provision of
the New Notes, the right of a holder of the New Notes to receive payment
of principal of and interest on the New Notes, on or after the respective
due dates expressed in the New Notes, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the holder
(d) Waiver of Stay or Extension Laws. The Company (to the extent it
may lawfully do so) shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance under the New Notes; and
the Company (to the extent that it may lawfully do so) hereby
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expressly waives all benefit or advantage of any such law, and shall not
hinder, delay or impede the execution of any power granted to a holder by
the New Notes, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
(e) When New Notes Disregarded; Registered Securities. In
determining whether the holders of the required principal amount of New
Notes have concurred in any direction, waiver or consent, New Notes owned
by the Company or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding. Also, subject to
the foregoing, only New Notes outstanding at the time shall be considered
in any such determination. For all purposes for the New Notes, any New
Notes sold pursuant to a Registration Rights Agreement shall be considered
the same class or series as the New Notes.
Section 5 Control by Majority.
The holders of a majority in principal amount of the New Notes may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or the New Notes or that the Trustee determines is unduly prejudicial to the
rights of other holders of the New Notes or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
Section 6 Limitation on Suits. A holder of New Notes may not pursue
any remedy with respect to the New Notes unless:
(a) the holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(b) the holders of at least 25% in principal amount of the New Notes
make a written request to the Trustee to pursue the remedy;
(c) such holder or holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(e) the holders of a majority in principal amount of the New Notes
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A holder of New Notes may not use its Note to prejudice the rights of
another holder of New Notes or to obtain a preference or priority over another
holder of New Notes.
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Section 7 Rights of Holders to Receive Payment.
The right of a holder of New Notes to receive payment of principal of and
interest on the New Notes, on or after the respective due dates expressed in the
New Notes, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the holder.
Section 8 Collection Suit by Trustee.
If an Event of Default specified in Section 11(a) or 11(b) of the New
Notes occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount then
due and owing (together with interest on any unpaid interest to the extent
lawful) and the amounts provided for in Section 31 of the New Notes and Section
17 of this Trustee Agreement.
Section 9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
holders of the New Notes allowed in any judicial proceedings relative to the
Company, its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf of the holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under this Trustee Agreement.
Section 10 Priorities.
(a) If the Trustee collects any money or property following an Event
of Default, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under the Trustee Agreement or the
New Notes;
SECOND: to holders of Senior Indebtedness of the Company, including the
holders of the New Notes for amounts due and unpaid on the New Notes for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the New Notes for principal and
interest, respectively;
THIRD: to holders of all Senior Subordinated Indebtedness; and
FOURTH: to the Company.
(b) The Trustee may fix a record date and payment date for any
payment to holders of New Notes pursuant to this Section. At least 15 days
before such record date,
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the Company shall mail to each holder of New Notes and the Trustee a
notice that states the record date, the payment date and amount to be
paid.
Section 11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under the New Notes
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a holder pursuant to Section 7 or
a suit by holders of more than 10% in principal amount of the New Notes.
Section 12 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers set forth in the Note and the
Trustee Agreement and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in the Note and the
Trustee Agreement and no implied covenants or obligations shall be
read into this Trustee Agreement against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
set forth in the Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of the Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
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(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.
(d) Every provision of the New Notes that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 12.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Trustee Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in
the performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to believe
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Trustee Agreement relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 12.
Section 13 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to the
New Notes and the Trustee Agreement shall be full and complete
authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
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(f) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by an Officers' Certificate and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the New Notes at the request or direction
of any of the holders of the New Notes, unless such holders of the New
Notes shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
Section 14 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of New Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any
Trustee, Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Sections 20 and 21.
Section 15 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of the New Notes, and it shall not be responsible for
any statement of the Company in the New Notes or in any document issued in
connection with the sale of the New Notes.
Section 16 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to the holder notice of the Default within 90 days after
it occurs. Except in the case of a Default in payment of principal of or
interest on the New Notes (including payments pursuant to the mandatory
redemption provisions of the New Notes), the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of the New Notes.
Section 17 Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
compensation for its services as the Company and the Trustee shall from
time to time agree in writing. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents and counsel. The
Company shall indemnify the Trustee against any and all loss, liability or
expense (including reasonable attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of
its duties hereunder. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the
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Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by
the Trustee through the Trustee's own willful misconduct, negligence or
bad faith.
(b) To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the New Notes on all money or property
held or collected by the Trustee other than money or property held in
trust to pay principal of and interest on particular New Notes.
(c) The Company's payment obligations pursuant to this Section shall
survive the discharge of the New Notes. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 11(g) or (h) of the
New Notes with respect to the Company, the expenses are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 18 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company.
The holders of a majority in principal amount of the New Notes may remove
the Trustee by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 20;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
holders of a majority in principal amount of the New Notes and such holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Note. The successor Trustee shall mail a notice of its succession to
the holders of the New Notes.
(d) If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the holders
of 10% in principal amount of the New Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(e) If the Trustee fails to comply with Section 20, any holder of
New Notes may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Section 19 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation or banking association without any further act shall be
the successor Trustee.
Section 20 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 21 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 22 Consent to Jurisdiction and Service.
The Company hereby absolutely and irrevocably consents and submits to the
jurisdiction of the courts in the State of Georgia and of any Federal court
located in said State in connection with any actions or proceedings brought
against the Company (or any of them) by the Trustee arising out of or relating
to this Trustee Agreement. In any such action or proceeding, the Company each
hereby absolutely and irrevocably (i) waives any objection to jurisdiction or
venue, (ii) waives personal service of any summons, complaint, declaration or
other process, and (iii) agrees that the service thereof may be made by
certified or registered first-class mail directed to such party, as the case may
be, at their respective addresses in accordance with Section 8 hereof.
Section 23 Waiver of Jury Trial.
THE PAYING AGENT AND THE COMPANY HEREBY WAIVE A TRIAL BY JURY OF ANY AND
ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THEM OR THEIR SUCCESSORS
OR ASSIGNS, UNDER OR IN CONNECTION WITH THIS TRUSTEE AGREEMENT OR ANY OF ITS
PROVISIONS OR ANY NEGOTIATIONS IN CONNECTION HEREWITH.
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Section 24 Force Majeure.
The Trustee shall not be responsible for delays or failures in performance
resulting from acts beyond its control. Such acts shall include but not be
limited to acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental regulations superimposed after the fact, fire, communication line
failures, computer viruses, power failures, earthquakes or other disasters.
Section 25 Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Avondale ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
if to the Trustee, Registrar or Paying Agent:
Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Section 26 Miscellaneous.
(i) Binding Effect; Successors. This Trustee Agreement shall
be binding upon the respective parties hereto and their successors
and assigns.
(ii) Modifications. This Trustee Agreement may not be altered
or modified without the express written consent of the parties
hereto. No course of conduct shall constitute a waiver of any of the
terms and conditions of this Trustee Agreement, unless such waiver
is specified in writing, and then only to the extent so specified. A
waiver of any of the terms and conditions of this Trustee Agreement
on one occasion shall not constitute a waiver of the other terms of
this Trustee Agreement, or of such terms and conditions on any other
occasion. Notwithstanding any other provision hereof, consent to an
alteration or modification of this Trustee Agreement may not be
signed by means of an e-mail address.
(iii) Governing Law. THIS TRUSTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE
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INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO APPLICABLE
PROVISIONS OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(iv) Severability. Any provision of this Trustee Agreement
which may be determined by competent authority to be 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. It is expressly understood, however, that the parties
hereto intend each and every provision of this Trustee Agreement to
be valid and enforceable and hereby knowingly waive all rights to
object to any provision of this Trustee Agreement.
(v) Counterparts. This Trustee Agreement may be executed in
several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties has caused this Trustee Agreement
to be duly executed and delivered in its name and on its behalf as of the 26th
day of August, 2004.
AVONDALE ▇▇▇▇▇, INC.
By:_________________________________
Name:
Title:
AVONDALE INCORPORATED
By:_________________________________
Name:
Title
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WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:_________________________________
Name:
Title:
-15-
EXHIBIT A
FORM OF NEW NOTE