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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
<TABLE>
<S> <C>
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997 COMMISSION FILE NUMBER 1-5663
</TABLE>
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
LOUISIANA 72-0244480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2030 DONAHUE FERRY ROAD, PINEVILLE, LOUISIANA 71360-5226
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: 318/484-7400
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
------------------- ---------------------
<S> <C>
Common Stock, $2.00 Par Value New York Stock Exchange
Pacific Stock Exchange
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
TITLE OF EACH CLASS
Cumulative Preferred Stock, $100 Par Value
4.50%
4.50%, Series of 1955
4.65%, Series of 1964
4.75%, Series of 1965
Convertible, Series of 1991
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X , No ___ .
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
As of February 24, 1998, the aggregate value of the Registrant's voting
stock held by non-affiliates was $727,027,245. The Registrant's Cumulative
Preferred Stock is not listed on any exchange, nor are prices for the Cumulative
Preferred Stock quoted on NASDAQ; therefore, its market value is not readily
determinable and is not included in the foregoing amount.
As of March 16, 1998, there were 22,478,748 shares outstanding of the
Registrant's Common Stock, par value $2.00 per share.
DOCUMENTS INCORPORATED BY REFERENCE
PORTIONS OF THE REGISTRANT'S ANNUAL REPORT TO SHAREHOLDERS FOR THE YEAR
ENDED DECEMBER 31, 1997 (1997 ANNUAL REPORT TO SHAREHOLDERS), FURNISHED TO THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 14a - 3(c) UNDER THE
SECURITIES EXCHANGE ACT OF 1934, ARE FILED AS EXHIBIT 13 TO THIS REPORT AND
INCORPORATED BY REFERENCE INTO PART II HEREIN. PORTIONS OF THE REGISTRANT'S
DEFINITIVE PROXY STATEMENT DATED MARCH 11, 1998, FOR THE ANNUAL MEETING OF
SHAREHOLDERS TO BE HELD ON APRIL 24, 1998, ARE INCORPORATED BY REFERENCE INTO
PART III HEREIN.
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TABLE OF CONTENTS
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PAGE
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Disclosure Regarding Forward-Looking Statements....................... 1
PART I
Item 1. Business
General..................................................... 3
Electric Operations......................................... 3
Regulatory and Environmental Matters........................ 9
Item 2. Properties.................................................. 17
Item 3. Legal Proceedings........................................... 18
Item 4. Submission of Matters to a Vote of Security Holders......... 19
Executive Officers of the Registrant........................ 20
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters....................................... 22
Item 6. Selected Financial Data..................................... 22
Item 7. Management's Discussion and Analysis of Financial Condition
and
Results of Operations..................................... 23
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk...................................................... 23
Item 8. Financial Statements and Supplementary Data................. 23
Item 9. Changes in and Disagreements with Accountants on Accounting
and
Financial Disclosure...................................... 23
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 24
Item 11. Executive Compensation...................................... 24
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................ 24
Item 13. Certain Relationships and Related Transactions.............. 24
PART IV
Item 14. Exhibits, Financial Statement Schedule, and Reports on Form
8-K....................................................... 25
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Report includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. All statements other than
statements of historical fact included in this Report, including, without
limitation, the statements under "Business -- Electric Operations -- Sales,"
"Regulatory and Environmental Matters -- Industry Developments," "-- Regulatory
and Environmental Matters -- Environmental Quality," "Management's Discussion
and Analysis of Results of Operations and Financial Condition -- Industry
Developments," "-- Results of Operations," "-- Financial Condition -- Liquidity
and Capital Resources," "-- Financial Condition -- Regulatory Matters" and Note
K to the Consolidated Financial Statements, contain forward-looking statements.
Located elsewhere in this Report are forward-looking statements regarding sales
growth, capital expenditures, the settlement of the Company's earnings review
approved by the Louisiana Public Service Commission (LPSC) in October 1996, the
Company's shelf registration statement, the effect of certain recent Federal
Energy Regulatory Commission (FERC) regulations, future legislative and
regulatory changes affecting electric utilities, and other matters. Although the
Company believes that the expectations reflected in such forward-looking
statements are reasonable, such forward-looking statements are based on numerous
assumptions (some of which may prove to be incorrect) and are subject to risks
and uncertainties which could cause the actual results to differ materially from
the Company's expectations. Forward-looking statements have been and will be
made in written documents and oral presentations of the Company. Such statements
are based on management's beliefs as well as assumptions made by and information
currently available to management. When used in the Company's documents or oral
presentations, the words "anticipate," "estimate," "expect," "objective,"
"projection," "forecast," "goal" and similar expressions are intended to
identify forward-looking statements. In addition to any assumptions and other
factors referred to specifically in connection with such forward-looking
statements, factors that could cause the Company's actual results to differ
materially from those contemplated in any forward-looking statements include,
among others, the following:
Factors affecting utility operations such as unusual weather
conditions; catastrophic weather-related damage; unscheduled generation
outages; unusual maintenance or repairs; unanticipated changes to fuel
costs, gas supply costs, or availability constraints due to higher demand,
shortages, transportation problems or other developments; environmental
incidents; or electric transmission or gas pipeline system constraints;
Increased competition in the electric environment, including effects
of industry restructuring, transmission system operation or administration,
retail wheeling or cogeneration;
Regulatory factors such as unanticipated changes in rate-setting
policies or procedures; recovery of investments made under traditional
regulation; and the frequency and timing of rate increases;
Financial or regulatory accounting principles or policies imposed by
the Financial Accounting Standards Board, the Securities and Exchange
Commission, the FERC, the LPSC or similar entities with regulatory or
accounting oversight;
Economic conditions, including inflation rates and monetary
fluctuations;
Changing market conditions and a variety of other factors associated
with physical energy and financial trading activities, including, but not
limited to, price, basis, credit, liquidity, volatility, capacity,
transmission, interest rate and warranty risks;
Availability or cost of capital resulting from changes in the Company,
interest rates, and securities ratings or market perceptions of the
electric utility industry and energy-related industries;
Employee workforce factors, including changes in key executives;
Legal and regulatory delays and other obstacles associated with
mergers, acquisitions or investments in joint ventures;
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Cost and other effects of legal and administrative proceedings,
settlements, investigations, claims and other matters; and
Changes in federal, state or local legislature requirements, such as
changes in tax laws or rates or environmental laws and regulations.
The Company undertakes no obligation to update or revise any
forward-looking statements, whether as a result of changes in actual results,
changes in assumptions or other factors affecting such statements.
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PART I
ITEM 1. BUSINESS
GENERAL
Central Louisiana Electric Company, Inc. (the Company) was incorporated in
1934 under the laws of the State of Louisiana and is engaged principally in the
generation, transmission, distribution and sale of electric energy to
approximately 238,000 customers in 63 communities and contiguous rural areas in
a 14,000 square-mile region in the State of Louisiana. At December 31, 1997, the
Company employed 1,214 persons. The Company's mailing address is P.O. Box 5000,
Pineville, Louisiana 71361-5000, and its telephone number is (318) 484-7400.
ELECTRIC OPERATIONS
CERTAIN FACTORS AFFECTING THE COMPANY'S ELECTRIC OPERATIONS
As an electric utility, the Company is affected, to varying degrees, by a
number of factors affecting the electric utility industry in general. These
factors include increasingly competitive business conditions, the cost of
compliance with environmental regulations and changes in the federal and state
regulation of the generation and transmission of electricity. For a discussion
of various regulatory changes and competitive forces affecting the Company and
other electric utilities, see "Regulatory and Environmental Matters -- Industry
Developments" below.
POWER GENERATION
The Company operates and either owns or has an ownership interest in four
steam electric generating stations and a gas turbine. The Company is the sole
owner of Coughlin Power Station, Teche Power Station and Rodemacher Power
Station Unit 1. The Company owns a 50% interest in Dolet Hills Power Station
Unit 1 (Dolet Hills Unit 1), and a 30% interest in Rodemacher Power Station Unit
2 (Rodemacher Unit 2). At December 31, 1997, the Company's aggregate electric
generating capacity was 1,693,000 kilowatts (excluding the Company's 20,000
kilowatts of firm purchases from the Sabine River Authority). The following
table sets forth certain information with respect to the Company's generating
facilities.
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<CAPTION>
YEAR OF CAPACITY AT TYPE OF
GENERATING INITIAL 12/31/97 FUEL USED FOR
GENERATING STATION UNIT # OPERATION (KILOWATTS) GENERATION(1)
------------------ ---------- --------- ----------- -----------------
<S> <C> <C> <C> <C>
Franklin Gas Turbine............. 1973 7,000 gas
Coughlin Power Station........... 6 1961 110,000 gas/oil (standby)
7 1966 224,000 gas/oil (standby)
Teche Power Station.............. 1 1953 23,000 gas
2 1956 48,000 gas
3 1971 359,000 gas/oil(standby)
Rodemacher Power Station......... 1 1975 440,000 gas/oil
2 1982 157,000(2) coal/gas
Dolet Hills Power Station........ 1 1986 325,000(3) lignite
---------
Total Generating
Capability........... 1,693,000
=========
</TABLE>
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(1) Where oil is used on a standby basis, capacity may be reduced.
(2) Represents the Company's 30% interest in the capacity of Rodemacher Unit 2,
a 523,000-kilowatt generating unit.
(3) Represents the Company's 50% interest in the capacity of Dolet Hills Unit 1,
a 650,000-kilowatt generating unit.
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FUEL AND PURCHASED POWER
Changes in fuel and purchased power expenses reflect fluctuations in
generation fuel mix costs, availability of economic purchased power and deferral
of expenses for recovery from customers through fuel adjustment clauses in
subsequent months.
The following table sets forth, for the periods indicated, the percentages
of power generated from various fuels at the Company's electric generating
plants, the cost of fuel used per kilowatt hour (kWh) attributable to each such
fuel and the weighted average fuel cost per kWh.
<TABLE>
<CAPTION>
LIGNITE COAL GAS FUEL OIL
-------------------- -------------------- -------------------- -------------------- WEIGHTED
COST COST COST COST AVERAGE
PER PERCENT PER PERCENT PER PERCENT PER PERCENT COST PER
KWH OF KWH OF KWH OF KWH OF KWH
YEAR (MILLS) GENERATION (MILLS) GENERATION (MILLS) GENERATION (MILLS) GENERATION (MILLS)
---- ------- ---------- ------- ---------- ------- ---------- ------- ---------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1997................. 14.85 36.7 17.06 19.1 29.85 44.2 -- -- 21.90
1996................. 15.45 38.1 16.67 21.3 30.06 39.8 26.09 0.8 21.61
1995................. 14.86 35.9 18.88 14.3 19.48 49.8 24.77 0.0 17.74
1994................. 15.09 36.5 19.53 16.0 22.28 47.4 21.00 0.1 19.22
1993................. 15.50 32.7 20.28 19.5 25.11 47.8 -- -- 21.02
</TABLE>
Power Purchases
The Company purchases electric energy from neighboring utilities when the
price of the energy purchased is less than the cost to the Company of generating
such energy from its own facilities. Additionally, the Company has a long-term
contract under which it purchases a small percentage of its total annual energy
requirements from a hydroelectric generating plant.
In 1997, the amount of power purchased decreased, compared to 1996, as a
result of the lack of available low-cost power on the wholesale market or the
lack of available transmission capacity to transport energy to the Company's
electric system. The lack of available purchased power increased the need for
additional generation by the Company's natural gas units at a higher cost. The
following table sets forth the amounts of power purchased by the Company on the
wholesale market for the years indicated.
<TABLE>
<CAPTION>
% OF TOTAL
MILLION ENERGY
KWH REQUIREMENTS
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<S> <C> <C>
1997........................................... 1,924 24%
1996........................................... 2,529 33%
1995........................................... 1,430 19%
1994........................................... 818 11%
1993........................................... 1,321 18%
</TABLE>
For information with respect to the Company's ability to currently pass
through changes in costs of fuel to its customers, see "Regulatory and
Environmental Matters -- Rates" below.
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NATURAL GAS SUPPLY
During 1997, the Company purchased a total of 29,165 billion British
thermal units (MMMBtu) of natural gas for the generation of electricity. The
annual and average per-day quantities of gas purchased by the Company from each
supplier are shown in the table below.
<TABLE>
<CAPTION>
AVERAGE
AMOUNT
1997 PURCHASED PERCENT
PURCHASES PER DAY OF TOTAL
NATURAL GAS SUPPLIER (MMMBTU) (MMMBTU) GAS USED
-------------------- --------- --------- --------
<S> <C> <C> <C>
Louisiana Interstate Gas Corporation(LIG)................ 12,670 34.7 43.4
Columbia Energy Services................................. 4,002 11.0 13.7
Western Gas Resources.................................... 2,850 7.8 9.8
Southern Companies Energy Marketing...................... 2,417 6.6 8.3
Other.................................................... 7,226 19.8 24.8
-------- ---- -----
29,165 79.9 100.0
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</TABLE>
In 1996, the Company entered into a one-year contract with LIG which
obligated the Company to a purchase commitment of 13.8 billion cubic feet (Bcf)
of gas for the period November 1, 1996 through October 31, 1997. All commitments
were met and the contract was terminated as scheduled.
During 1997, the Company completed the construction of natural gas
interconnections with Trunkline Gas Company (Trunkline), a subsidiary of Duke
Energy Corp., Columbia Gulf Transmission Co. (Columbia), a subsidiary of the
Columbia Gas Systems, Inc., and ANR Pipeline Company (ANR), a Coastal
Corporation subsidiary. These interconnections were subsequently aggregated to
form CLE Intrastate Pipeline Company, Inc., a subsidiary of the Company. The
addition of the new CLE Intrastate Pipeline interconnections has allowed the
Company to access various competitive natural gas supply markets which helps to
maintain the competitiveness of the Company's generating units.
The new interconnections required only one commitment. Trunkline required
that at least 7.5 Bcf of natural gas would flow through the Rodemacher Power
Station interconnection between January 1, 1997 and July 1, 1998. In return, the
Company received a commitment for firm transportation service for delivery of
natural gas to the plant. For the twelve months ended December 31, 1997,
approximately 6.1 Bcf of the 7.5 Bcf commitment have flowed through the
Rodemacher Power Station interconnection. Neither ANR nor Columbia required a
volume commitment.
Natural gas was plentiful and available without interruption throughout
1997. The Company currently meets, and expects to continue to meet, its natural
gas requirements with purchases on the spot market through daily, monthly and
seasonal contracts with various natural gas suppliers. However, future supplies
to the Company remain vulnerable to disruptions due to weather events and
transportation disruptions. The potential for disruptions to the Company has
been decreased by the addition of the new interconnections. Nevertheless, large
boiler fuel users of natural gas, including electric utilities, generally have
low priority among gas users in the event pipeline suppliers are forced to
curtail deliveries due to inadequate supplies. As a result, supplies of natural
gas may become unavailable from time to time, or prices may increase rapidly in
response to temporary supply disruptions. Such events, though rare, may require
the Company to shift its gas-fired generation to alternative fuel sources, such
as fuel oil, to the extent it has the capability to burn those alternative
fuels. Currently, the Company anticipates that its alternative fuel capability,
combined with its solid-fuel generation resources, are adequate to meet fuel
needs during any temporary interruption of natural gas supplies.
Coal and Lignite Supply
Substantially all of the coal for Rodemacher Unit 2 is purchased from mines
in Wyoming under a long-term contract expiring in 2007 with Kerr-McGee Coal
Corporation. The contract has been modified under a price reopener provision
which was initiated in early 1997. The pricing structure under the modified
contract has been defined through mid 2002. Provisions for pricing and terms can
be renegotiated under a contract reopener provision in early 2002. After
purchasing a given annual quantity of base coal (approximately
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500,000 tons in 1997), the Company has the right to purchase coal from third
parties in the spot market. Additional spot coal may be obtained through
competitive bidding.
The coal for Rodemacher Unit 2 is transported under a long-term rail
transportation contract with the Union Pacific Railroad. Union Pacific is
currently experiencing operating problems resulting in reduced volumes being
delivered to Rodemacher Unit 2. Consequently, the Company's coal inventory at
Rodemacher Unit 2 is currently below its desired minimum level. Based on Union
Pacific's anticipated delivery schedule of future coal shipments, management
does not expect that Rodemacher Unit 2 operations will need to be curtailed due
to insufficient fuel supply, and management anticipates restoration of the coal
inventory at the unit to a desired level of 30 days' supply by July 1998. Other
regional utilities are experiencing similar delivery problems.
Substantially all of the lignite used to fuel Dolet Hills Unit 1 is
obtained under two long-term agreements. The Company and Southwestern Electric
Power Company (SWEPCO), each a 50% owner of Dolet Hills Unit 1, have entered
into agreements pursuant to which each acquired an undivided 50% interest in the
other's leased and owned lignite reserves in northwestern Louisiana. The Company
and SWEPCO have also entered into a long-term agreement expiring in 2011 with
the Dolet Hills Mining Venture (DHMV) for the mining and delivery of such
lignite reserves, which reserves are expected to provide a substantial portion
of the fuel requirements for the projected operating life of Dolet Hills Unit 1.
The Company's minimum annual purchase requirement is 1,187,500 tons. The price
of lignite delivered pursuant to the agreement is a base price per ton, subject
to escalation based on certain inflation indices, plus specified "pass-through"
costs. Additional spot lignite may be obtained through competitive bidding. For
information regarding the Company's legal proceedings against the DHMV, see
"Legal Proceedings" in Part I of this Report.
Additionally, the Company and SWEPCO have entered into a long-term
agreement expiring in 2011 with Red River Mining Co., a joint venture of the
North American Coal Corporation and Phillips Coal Company, which provides for
base contract purchases and spot purchases of lignite. The Company's minimum
annual purchase requirement is 275,000 tons. The base lignite price under the
contract is a base price per MMMBtu, subject to escalation, plus certain
pass-through costs, while the spot lignite price is determined through
competitive bidding.
The continuous supply of coal and lignite from the mining sources described
above may be subject to interruption due to adverse weather conditions or other
factors which may disrupt mining operations or transportation. At December 31,
1997, the Company's coal inventory at Rodemacher Unit 2 was approximately 28,000
tons (about a 14-day supply), and the Company's lignite inventory at Dolet Hills
Unit 1 was approximately 237,000 tons (about a 40-day supply).
Oil Supply
The Company stores fuel oil as an alternative fuel source. Rodemacher Power
Station has storage capacity for an approximate 75-day supply and other
generating stations have storage capacity totaling about a 20-day supply.
However, in accordance with the Company's current fuel oil inventory practices,
at December 31, 1997, the Company had between 5 to 10 days' supply of fuel oil
stored at its generating stations. During 1997, no barrels of fuel oil were
burned.
SALES
The Company is a "public utility" engaged principally in the generation,
transmission, distribution and sale of electricity within Louisiana. For further
information regarding the Company's generating stations and its transmission and
distribution facilities, see "Power Generation" above and "Properties" in Item 2
of this
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Report. The following table sets forth information concerning sales by the
Company to various classes of customers for each of the last three years.
<TABLE>
<CAPTION>
SALES (MILLION KWH)
-----------------------
1997 1996 1995
----- ----- -----
<S> <C> <C> <C>
Residential................................................. 2,838 2,723 2,763
Commercial.................................................. 1,393 1,338 1,265
Industrial.................................................. 2,467 2,369 2,227
Other retail................................................ 533 526 502
Sales for resale............................................ 311 291 360
----- ----- -----
Total sales to regular customers.......................... 7,542 7,247 7,117
Short-term sales to other utilities....................... 157 330 68
----- ----- -----
Total kilowatt-hour sales................................. 7,699 7,577 7,185
===== ===== =====
</TABLE>
The Company's 1997 system peak demand occurred in August and was 1,560,000
kilowatts. Sales and peak demand are affected by seasonal demand influenced by
weather and are generally highest during the summer air-conditioning and winter
heating seasons. For information concerning the financial effects of seasonal
demand on the Company's quarterly operating results, see Note L to the
Consolidated Financial Statements on page 31 of the 1997 Annual Report to
Shareholders, which is filed as Exhibit 13 to this Report and incorporated
herein by reference.
The Company expects the peak demand on the system to grow at a compound
annual rate of approximately 3.1% over the next five years. The Company's
capacity reserve margin for 1997 was 8.9%. To meet the Company's capacity
reserve margin for 1998, the Company has purchased 180 MW of firm capacity and
transmission service for the summer months of June through September. Of this
capacity, 80 MW will be delivered each day and the remaining 100 MW of capacity
is to be made available on a next day scheduled basis. The Company believes it
can meet its anticipated growth in customer demand by purchasing the needed
capacity on the wholesale market. Future capacity needs may be met by continuing
to purchase power on the wholesale market, adding capacity to existing power
plants or building new power plants. Currently, management is evaluating the
best approach for the Company.
No customer accounted for 10% or more of the Company's revenues in 1997.
Additional information regarding the Company's sales and revenues is set forth
in "Results of Operations" in "Management's Discussion and Analysis of Results
of Operations and Financial Condition" on pages 3 through 5 of the 1997 Annual
Report to Shareholders, which is filed as Exhibit 13 to this Report and
incorporated herein by reference.
CONSTRUCTION AND FINANCING
For information on the Company's construction program, financing and
related matters, see "Financial Condition" in "Management's Discussion and
Analysis of Results of Operations and Financial Condition" on pages 7 through 11
of the 1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this
Report and incorporated herein by reference.
JOINT VENTURE
On October 30, 1997, the Company formed a joint venture with Covenant
Energy Corporation (Covenant). The joint venture will market electricity and
natural gas services, as well as energy management services, to commercial and
industrial customers and utilities throughout the southeastern United States.
The joint venture will also engage in energy asset development projects, such as
cogeneration projects, natural gas pipelines connecting to customers' plants and
potential strategic asset acquisitions in the southeastern United States. The
newly formed venture, CLECO ENERGY, L.L.C., is headquartered in Houston, Texas.
Covenant President John T. McDougal heads the venture. The Company owns 51% of
the newly formed venture through a subsidiary and Covenant owns the remaining
49%. For information regarding the
7
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Company's commitment to provide credit support to the venture, see "Financial
Condition -- Cash Generation and Cash Requirements" in "Management's Discussion
and Analysis of Results of Operations and Financial Condition" on page 8 of the
1997 Annual Report to Shareholders, which is filed as Exhibit 13 to this Report
and incorporated herein by reference.
REGULATORY AND ENVIRONMENTAL MATTERS
RATES
Retail electric operations of the Company are subject to the jurisdiction
of the Louisiana Public Service Commission (LPSC) with respect to rates,
standards of service, accounting and other matters. The LPSC establishes base
rates based upon nonfuel costs, including the cost of capital and sales. The
Company is also subject to the jurisdiction of the Federal Energy Regulatory
Commission (FERC) with respect to certain aspects of its electric business,
including rates for wholesale service and interconnections with, and the
transmission of power for, other utilities. Periodically, the Company has sought
and received increases in base rates from both the LPSC and the FERC to cover
increases in operating costs and costs associated with additions to generation,
transmission and distribution facilities.
The Company's electric rates include a fuel and purchased power cost
adjustment clause which enables the Company to reflect monthly fluctuations in
the cost of fuel and short-term purchased power. Additionally, pretax income
from certain off-system sales to other utilities is passed on to customers
through the fuel cost adjustment clause. Fuel costs and fuel adjustment billing
factors are approved by the LPSC and the FERC. These cost adjustments are based
on costs from earlier periods which result in over- or under-recovery for the
period in which the adjustment is made. Any over- or under-recovery is corrected
by an adjustment in later periods. As of December 31, 1997, the net accumulated
liability for over-recovery on sales subject to the LPSC's jurisdiction was
approximately $3.0 million.
The LPSC elected in 1993 to review the earnings of all electric, gas, water
and telecommunications utilities regulated by it to determine whether the
returns on equity of these companies may be higher than returns that might be
awarded in the current economic environment. In 1996, the LPSC approved a
settlement of the Company's earnings review, providing the Company's customers
with lower electricity rates. The first rate decrease, of $3 million annually,
was effective November 1, 1996, with a second decrease, of an additional $2
million annually, effective January 1, 1998. The terms of this settlement will
be effective for a five-year period.
During the five-year period, which began November 1, 1996, a rate
stabilization plan is in place. This plan allows the Company to retain all
earnings equating to a regulatory return on equity up to and including 12.25% on
its regulated utility operations. Any earnings which result in a return on
equity over 12.25%, up to and including 13%, will be shared equally between the
Company, and its customers, which effectively allows the Company the opportunity
to realize a regulatory rate of return of up to 12.625%. Any earnings above this
level will be refunded fully to customers.
During the five-year period 1997-2001, the Company's revenues and return on
equity will be reviewed each year by the LPSC. If the Company is found to be
achieving a regulatory return on equity in any given year which requires a
refund to customers, the refund will be made in the form of billing credits
during the months of July, August and September following the evaluation period.
During the five-year rate stabilization period, the Company will have the
right to apply for a rate increase if a significant event affecting its earnings
would justify it, such as regulatory or economic changes, major hurricane damage
or other unforeseen circumstances. During the period, the Company will also be
able to propose for LPSC consideration any revenue-neutral rate design changes
it feels appropriate, such as revenue redistribution among customer classes
which may be warranted. During the period, the LPSC may amend or modify any of
the settlement's terms should the LPSC determine changes are warranted by the
public interest.
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FRANCHISES
The Company operates under nonexclusive franchise rights granted by
governmental units and enforced by state regulation. These franchises are for
fixed terms, which vary from ten years to 50 years. In the past, the Company has
been successful in the timely renewal of franchises as each reaches the end of
its term and expires.
A number of parishes have attempted in recent years to impose franchise
fees on retail revenues earned within the unincorporated areas the Company
serves. If the parishes are ultimately successful, taxes other than income taxes
could increase substantially in future years.
INDUSTRY DEVELOPMENTS
Technological improvements in recent years have somewhat lessened the
historical barriers to entry in the electric utility industry and have set in
motion statutory and regulatory changes aimed at increased competition in the
electric utility industry. Federal and state legislation and new regulatory
initiatives designed to restructure electricity markets will likely produce even
greater competition at both wholesale and retail levels in the future. The LPSC
is investigating whether retail choice is in the best interest of Louisiana
electric utility customers. The Company and other existing and potential
Louisiana electric industry participants filed testimony in the LPSC's
investigation of electric industry restructuring during 1997. Also, during 1997,
the Louisiana legislature considered, but did not enact, legislation regarding
restructuring of the electric utility industry within the State, but instead,
deferred consideration of the issues to the LPSC. The Company expects the
customer choice debate and related issues to continue in legislative and
regulatory bodies in 1998. At this time, management cannot predict whether any
legislation or regulation will be enacted or adopted during 1998 and, if enacted
or adopted, what form such legislation or regulation would take.
In general, Louisiana enjoys relatively low rates for electricity. Industry
restructuring presents the possibility that rates could move closer to the
national average, meaning possible higher prices for Louisiana's small
consumers. With this in mind, the Company favors a plan that would protect the
rates of small consumers and allow retail choice for larger commercial and
industrial customers no later than the year 2000. Management believes too rapid
a course to restructuring could result in higher electricity prices for small
consumers. To protect small consumers against such an outcome, management
supports for the most part, the deliberate approach to industry restructuring
taken by the LPSC. The increasingly competitive environment presents
opportunities to compete to supply electricity to new customers, as well as the
risk of losing existing customers. Management believes the Company is a
reliable, low-cost provider of electricity and, as such, is currently positioned
to compete effectively in a restructured electric marketplace.
Wholesale Electric Competition
The Energy Policy Act, adopted in October 1992, significantly changed U.S.
energy policy, including that governing the electric utility industry. The
Energy Policy Act allows the FERC, on a case-by-case basis and with certain
restrictions, to order wholesale transmission access and to order electric
utilities to enlarge their transmission systems. The Energy Policy Act does,
however, prohibit FERC-ordered retail wheeling (i.e., opening up the electric
utility systems to allow customer choice of energy suppliers at the retail
level), including "sham" wholesale transactions. Further, under the Energy
Policy Act, a FERC transmission order requiring a transmitting utility to
provide wholesale transmission services must include provisions generally
permitting the utility to recover from the FERC applicant all of the costs
incurred in connection with the transmission services, any enlargement of the
transmission system and associated services.
In addition, the Energy Policy Act revised the Public Utility Holding
Company Act of 1935 (the Holding Company Act) to permit utilities, including
registered holding companies, and non-utilities to form "exempt wholesale
generators" without the principal restrictions of the Holding Company Act. Under
prior law, independent power producers were generally required to adopt
inefficient and complex ownership structures to avoid pervasive regulation under
the Holding Company Act.
9
<PAGE> 12
On April 24, 1996, the FERC issued Order No. 888, a final rule requiring
open access transmission by all public utilities that own, operate or control
transmission lines. All of these utilities must now provide nondiscriminatory
open access transmission services that are comparable to transmission services
that the utilities provide themselves. The Company's tariff was approved by the
FERC in a settlement with affected parties on November 26 1997. Utilities must
take transmission service for their own wholesale transactions under the terms
and conditions of their open access tariffs. Order No. 888 provides for the full
recovery from a utility's departing customers of wholesale stranded costs to the
extent such costs were prudently incurred to serve wholesale customers and would
go unrecovered if those customers use open access transmission service to move
to another supplier. The Order also allows customers under existing wholesale
contracts to seek FERC approval to modify their contracts on a case-by-case
basis.
The Company has three firm-sales wholesale customers, which represented
0.9% of its sales to regular customers for the twelve months ended December 31,
1997. Management cannot predict what, if any, effects Order No. 888 may have on
wholesale prices in the Company's service area.
Wholesale energy markets, including the market for wholesale electric
power, have been competitive and are becoming even more so as the number of
competitors in these markets increases as a result of enactment of the Energy
Policy Act and the regulatory activities of the FERC. The Company competes for
sales of electric power at wholesale with other public utilities, cogenerators
and qualified facilities in other forms, power marketing companies, which own no
transmission or generation facilities, but which compete in the wholesale market
by buying electricity from utilities and other generators and reselling the
electricity at market-based rates. Many such power marketers now transact
business in all regions of the country.
In recent years, the Company has been successful in competing for wholesale
sales within its service territory, including sales to the city of Alexandria
and a full requirements sale to the city of St. Martinville. Sales under the St.
Martinville agreement, which is subject to the jurisdiction of the FERC, began
in May 1995 and represent an approximate 13 MW load. Sales to St. Martinville
provide additional base revenues, net of facility payments, of about $4 million
over the term of the agreement, which extends through December 2000. This
contract was challenged in 1993 by the previous supplier, Louisiana Energy and
Power Authority (LEPA), as well as the city of Lafayette and the American Public
Power Association, with assertions of preferential, discriminatory and predatory
pricing. An initial decision of the FERC's presiding administrative law judge
(ALJ) in February 1995 rejected LEPA's arguments. Under FERC procedures, LEPA
has filed a brief requesting the FERC to revise the initial decision, and this
matter is still pending before the FERC. The Company has opposed LEPA's brief,
and management believes that the ALJ's initial decision will be upheld.
Retail Electric Competition
Currently the LPSC does not provide exclusive service territories for
electric utilities under its jurisdiction. Instead, retail service is obtained
through the aforementioned long-term, nonexclusive franchises. Also, the LPSC
has used a "300 foot rule" for determining the supplier for new customers. The
application of this law has led to competition with neighboring utilities for
retail customers at the borders of the Company's service areas. The Company also
competes in its service area with suppliers of alternative forms of energy, some
of which may be less costly for certain applications than electricity. The
Company could experience some competition for electric sales to industrial
customers in the form of cogeneration or from independent power producers.
However, the Company believes that its rates, and the quality and reliability of
its service, place it in a favorable competitive position in current retail
markets.
The LPSC has set a generic docket to investigate whether retail choice is
in the best interests of Louisiana electric utility consumers. Initial hearings
in this docket were held in September 1997. In December 1997, the LPSC staff
reported to the LPSC commissioners that electric industry restructuring could be
in the best interests of the public and recommended that the LPSC continue to
investigate the major issues involved in restructuring.
In early May 1997, the Commerce Committee of the Louisiana House of
Representatives deferred any action on legislation regarding
deregulation/customer choice for the electric utility industry in Louisiana. The
legislators determined that the issues surrounding deregulation should be left
to the LPSC. However, the
10
<PAGE> 13
legislature passed a resolution establishing a special committee to study
existing federal, state and local laws, rules and policies to assess the impact
of electric retail competition. The committee held its first meeting in
September 1997 and must submit a report of its findings by the beginning of the
1998 regular legislative session. The Company has a representative on this
committee.
Legislative and Regulatory Changes and Matters
Various federal and state legislative and regulatory bodies are considering
a number of issues in addition to those discussed above that will shape the
future of the electric utility industry. Such issues include deregulation of
retail electricity sales; the ability of electric utilities to recover stranded
costs; the repeal or modification of the Holding Company Act; the unbundling of
vertically integrated electric utility companies into separate business segments
or companies (i.e., generation, transmission, distribution and retail energy
service); the role of electric utilities, independent power producers and
competitive bidding in the construction and operation of new generating
capacity; and the pricing of transmission service on an electric utility's
transmission system. The Company is unable to predict the outcome of such issues
or their effect on the Company's financial position, results of operations or
cash flows at this time.
For information on certain regulatory matters and regulatory accounting
affecting the Company, see "Financial Condition -- Regulatory Matters" in
"Management's Discussion and Analysis of Results of Operations and Financial
Condition" on pages 10 and 11 of the 1997 Annual Report to Shareholders, which
is filed as Exhibit 13 to this Report and incorporated herein by reference.
ENVIRONMENTAL QUALITY
The Company is subject to numerous laws and regulations administered by
federal, state and local authorities to protect the environment. These statutory
and regulatory provisions impose various substantive requirements, the violation
of which may result in substantial fines and penalties. Environmental
requirements continue to increase as a result of new legislation, administrative
actions and judicial interpretations. Therefore, the precise future effects of
existing and potential requirements are difficult to determine. During 1997, the
Company's capital expenditures related to environmental compliance were about
$0.4 million, due largely to the modification of a sludge landfill site at one
of the Company's generating stations. Expenditures related to environmental
compliance are estimated to total approximately $0.6 million in 1998.
Air Quality
The State of Louisiana regulates emissions from each of the Company's
generating units through regulations issued by the Air Quality Division (AQD) of
the Louisiana Department of Environmental Quality (LDEQ). In addition, the AQD
implements certain programs initially established by the federal Environmental
Protection Agency (EPA). The AQD establishes standards of performance or
requires permits for certain generating units in Louisiana. Four of the
Company's generating units are subject to these requirements: Teche Unit 3,
Rodemacher Units 1 and 2 and Dolet Hills Unit 1.
The federal Clean Air Act Amendments of 1990 (the Act) established a
regulatory program to address the effects of acid rain and imposed restrictions
on sulfur dioxide (SO(2)) emissions from certain utility units. The Act
essentially requires that utilities, like the Company, must hold a regulatory
"allowance" for each ton of SO(2) emitted beginning in the year 2000. The EPA is
required to allocate a set number of allowances to each affected unit based on
its historic emissions. After the initial allocation, the Company requested an
adjustment to the allowance allocation for Rodemacher Unit 2 because of an
extended outage of the unit during one of the years used in the EPA's
calculation. Because the final allowance allocation did not reflect the
requested adjustment, the Company filed a petition for judicial review of the
EPA's action on May 21, 1993 in the United States Court of Appeals for the
District of Columbia Circuit. In October 1995, the EPA signed a settlement
agreement in which it agreed to give Rodemacher Unit 2 the additional allowances
requested. In December 1996, the EPA published proposed changes to the Acid Rain
Program in the Federal Register. The proposed changes included the additional
allowances requested for Rodemacher Unit 2. While the EPA has
11
<PAGE> 14
agreed to give the additional allowances to Rodemacher Unit 2, the allowances
will not be allocated until June 1998.
The Act also requires the EPA to revise nitrogen oxides (NOx) emission
limits for existing coal-fired boilers. In November 1996, the EPA finalized
rules lowering the NOx emission rate for certain boilers, including Rodemacher
Unit 2 and Dolet Hills Unit 1. Under this rule, Rodemacher Unit 2 and Dolet
Hills Unit 1 would have to meet this new emission rate by January 1, 2000. The
rule also allows an option to "early elect," that is, achieve compliance with a
less restrictive NOx limit beginning January 1, 1997. The Company exercised this
option in December 1996. Early election protects the Company from any further
reductions in the NOx permitted emission rate until 2008. Rodemacher Unit 2 and
Dolet Hills Unit 1 were in compliance with the NO(x) early election limits in
1997 and are expected to continue to be in compliance in 1998 without undergoing
significant capital improvements. Significant future reductions in NO(x)
emission limits may require modification of burners or other capital
improvements at either or both of the units.
Water Quality
The Company has received from the EPA all National Pollutant Discharge
Elimination System (NPDES) permits required under the Clean Water Act for
discharges from its four generating stations. NPDES permits have fixed dates of
expiration, and the Company has applied for renewal of these permits within the
applicable time periods. The Office of Water Resources of the LDEQ requires
facilities which discharge wastewater into Louisiana waters to be permitted
under the Louisiana Water Discharge Permit System (LWDPS). The Company has
applied for and received LWDPS permits for its four generating stations.
In 1996, the LDEQ was granted authority to administer the federal NPDES
program in Louisiana. The NPDES permit is substantially similar to the LWDPS
permit, and eventually LDEQ intends to merge the two into a single LWDPS permit.
Until then, all data required by the NPDES permit and the LWDPS permit are
reported to the LDEQ.
Solid Waste Disposal
The Solid Waste Division (SWD) of the LDEQ has adopted regulations and a
permitting system for the management and disposal of solid waste generated by
electric utilities. The Company has received all required permits from the SWD
for the on-site disposal of solid waste generated at its generating stations and
is in the process of repermitting its solid waste disposal facilities under
recently revised rules.
The Company has requested approval of an alternate liner system for the
Dolet Hills landfill facility and has received conditional approval from the
LDEQ. The Company is in the process of obtaining additional information to
submit to the LDEQ, which should make the approval permanent. The alternate
system, if approved, is expected to save $360,000 to $900,000 per year in
operating costs at the landfill.
Hazardous Waste Generation
The Company produces certain wastes at its four generating stations and at
other locations which are classified as hazardous. The Hazardous Waste Division
of the LDEQ regulates these wastes and has issued identification numbers to the
sites where such wastes are produced. The Company does not treat, store or
dispose of these wastes on-site; therefore, no permits are required. All
hazardous wastes produced by the Company are disposed of at federally permitted
hazardous waste disposal sites.
ELECTRIC AND MAGNETIC FIELDS
The possibility that exposure to electric and magnetic fields (EMFs)
emanating from power lines, household appliances and other electric devices may
result in adverse health effects or damage to the environment has been a subject
of current public attention. The Company funds research on electric and magnetic
fields through various organizations. The scientific research conducted to date
concerning the effects of EMFs has not led to any definitive results; however,
such research is continuing. Lawsuits have arisen in
12
<PAGE> 15
several states against electric utilities and others alleging that the presence
or use of electric power transmission and distribution lines has an adverse
effect on health and/or property values.
OTHER EVENTS
Acquisition of Teche Electric Cooperative, Inc. (Teche)
In February 1995, the Company agreed to purchase Teche for a price,
including the assumption or other discharge of Teche's liabilities, of about
$22.4 million. The members of Teche overwhelmingly approved the sale at their
annual meeting in March 1995. One of the conditions necessary to the closing of
the Teche acquisition was an interim power purchase agreement with Cajun
Electric Power Cooperative, Inc. (Cajun), Teche's former wholesale power
supplier. Cajun has been involved in bankruptcy proceedings since 1995. An
interim agreement, acceptable to Cajun's bankruptcy trustee and the Rural
Utilities Services, was reached in September 1997. The Company consummated the
purchase of Teche on September 30, 1997. The acquisition resulted in the
addition of 7,700 mostly residential customers to the Company.
ITEM 2. PROPERTIES
All of the Company's electric generating stations and all other electric
operating properties are located in the State of Louisiana. The Company
considers all of its properties to be well maintained, in good operating
condition and suitable for their intended purposes.
ELECTRIC GENERATING STATIONS
As of December 31, 1997, the Company either owned or had an ownership
interest in four steam electric generating stations and a gas turbine with a
combined electric generating capacity of 1,693,000 kilowatts. For additional
information regarding the Company's generating facilities, see "Electric
Operations -- Power Generation" in Item 1 of this Report.
SUBSTATIONS
As of December 31, 1997, the Company owned 82 transmission substations and
302 distribution substations. Electric Lines
ELECTRIC LINES
As of December 31, 1997, the Company's transmission system consisted of
approximately 67 circuit miles of 500 kilovolt (kV) lines; 454 circuit miles of
230 kV lines; 648 circuit miles of 138 kV lines; and 21 circuit miles of 69 kV
lines. The Company's distribution system consisted of approximately 2,127
circuit miles of 34.5 kV lines and 11,798 circuit miles of other lines.
GENERAL PROPERTIES
The Company owns various properties, which include a seven-story
headquarters office building, regional offices, a central warehouse, service
centers, telecommunications equipment and other facilities owned for general
purposes.
TITLE
The Company's electric generating plants and certain other principal
properties are owned in fee. Electric transmission and distribution lines are
located either on private rights-of-way or along streets or highways by public
consent.
Substantially all of the Company's property, plant and equipment is subject
to a lien securing obligations of the Company under an Indenture of Mortgage,
which does not impair the use of such properties in the operation of its
business.
13
<PAGE> 16
ITEM 3. LEGAL PROCEEDINGS
The Company and SWEPCO, each a 50% owner of Dolet Hills Unit 1, jointly own
lignite reserves in the Dolet Hills area of northwestern Louisiana. In 1982, the
Company and SWEPCO entered into a Lignite Mining Agreement (LMA) with the DHMV,
a partnership for the mining and delivery of lignite from a portion of these
reserves (Dolet Hills Mine). The LMA expires in 2011. The price of lignite
delivered pursuant to the LMA is a base price per ton, subject to escalation
based on certain inflation indices, plus specified "pass-through" costs.
Currently, the Company is receiving annually a minimum delivery of
1,187,500 tons under the LMA. Since the late 1980s, additional spot lignite
deliveries have been obtained through competitive bidding from DHMV and another
lignite supplier. In 1997, the Company and SWEPCO received deliveries of
approximately 28% of the annual lignite consumption at Dolet Hills Unit 1 from
the other lignite supplier.
On April 15, 1997, the Company and SWEPCO filed suit against DHMV and its
partners in the United States District Court for the Western District of
Louisiana (Federal Court Suit) seeking to enforce various obligations of DHMV to
the Company and SWEPCO under the LMA, including provisions relating to the
quality of the delivered lignite, pricing and mine reclamation practices. On
June 15, 1997, DHMV filed an answer denying the allegations in the Company's
suit and filed a counterclaim asserting various contract-related claims against
the Company and SWEPCO. The Company and SWEPCO have denied the allegations in
the counterclaim on the grounds the counterclaim has no merit.
The counterclaims filed by DHMV in the Federal Court Suit resulted in the
Company and SWEPCO filing a separate lawsuit against the parent companies of
DHMV, namely Jones Capital Corporation and Philipp Hozmann USA, Inc., on August
13, 1997, in the First Judicial District Court for Caddo Parish, Louisiana
(State Court Suit). The State Court Suit seeks to enforce a separate 1995
agreement by Jones Capital Corporation and Philipp Holzmann USA, Inc. related to
the LMA. Jones Capital Corporation and Philipp Holzmann USA, Inc. have asked the
State Court to stay that proceeding until the Federal Court Suit is resolved.
The suits are currently in the discovery phase. A status conference is
currently scheduled for May 22, 1998. At this conference, a trial date will be
set. The Company and SWEPCO will aggressively prosecute the claims against DHMV
and defend against the counterclaims which DHMV has asserted. The Company and
SWEPCO continue to pay DHMV for lignite delivered pursuant to the LMA. Normal
day-to-day operations continue at the Dolet Hills Mine and Dolet Hills Unit 1.
Although the ultimate outcome of this litigation cannot be predicted at this
time, based on information currently available to the Company, management
believes that the counterclaim asserted by the DHMV in the Federal Court Suit,
if successful, would not have a significant adverse effect on the Company's
financial position or results of operations.
The Company is not aware of any legal proceeding to which it is a party
which would have a material adverse effect on its financial condition, results
of operations, cash flows or competitive position. For a discussion of certain
legal proceedings and regulatory matters involving the Company, see "Business --
Regulatory and Environmental Matters -- Industry Developments, -- Wholesale
Electric Competition" and "-- Environmental Quality -- Air Quality" in Item 1 of
this Report.
14
<PAGE> 17
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to a vote of security holders of the
Company during the fourth quarter of 1997.
EXECUTIVE OFFICERS OF THE REGISTRANT
The names of the executive officers of the Company, their positions held,
five-year employment history, ages and years of service as of December 31, 1997
are presented below. Executive officers are appointed annually to serve for the
ensuing year or until their successors have been appointed.
<TABLE>
<CAPTION>
POSITION AND FIVE-YEAR
NAME OF EXECUTIVE OFFICER EMPLOYMENT HISTORY
------------------------- ----------------------
<S> <C>
</TABLE>
Gregory L. Nesbitt......... President and Chief Executive Officer since April
1993; President and Chief Operating Officer from
April 1992 to April 1993; Executive Vice President
and Chief Operating Officer from July 1991 to April
1992; Executive Vice President from January 1988 to
July 1991. (Age 59; 17 years of service)
David M. Eppler............ Executive Vice President and Chief Operating
Officer since July 1997; Executive Vice President
from January 1997 to July 1997; Vice
President-Power Supply and Energy Transmission from
July 1995 to January 1997; Vice President-Finance
from October 1993 to July 1995; Vice President and
Treasurer from July 1987 to October 1993. (Age 47;
16 years of service)
Thomas J. Howlin........... Senior Vice President-Financial Services and Chief
Financial Officer since July 25, 1997; Vice
President-Finance and Chief Financial Officer from
July 14, 1997 to July 25, 1997. Vice President and
Chief Financial Officer of TransAmerican Natural
Gas Corporation from April 1995 to March 1997;
Director of Financial Activity, Business
Development for Detroit Edison Company from January
1994 to March 1995. (Age 49; 6 months of service)
Catherine C. Powell........ Senior Vice President-Employee and Corporate
Services since July 1997; Vice President-Employee
and Corporate Services from July 1995 to July 1997;
Vice President-Human Resources from October 1993 to
July 1995; General Manager-Human Resources from
August 1993 to October 1993;
Administrator-Compensation from May 1991 to August
1993. (Age 42; 6 years of service)
Darrell J. Dubroc.......... Vice President-Generation Services since July 1997;
General Manager-Wholesale Merchant Operations from
July 1996 to July 1997; Manager-Regulatory Affairs
and Business Development from March 1995 to July
1996; Manager-Contracts and Business Development
from July 1994 to March 1995; Director-Contracts
and Business Development from October 1993 to July
1994. (Age 36; 12 years of service)
Jeffrey W. Hall............ Vice President-Retail Energy Services since July
1997; General Manager-Customer Revenue from July
1996 to July 1997; Manager-Public Affairs from
October 1995 to July 1996; Regional Manager-
Customer Services from October 1993 to October
1995; Manager-Customer Services, Opelousas from May
1991 to October 1993; Manager-Customer Services,
Mansfield from May 1983 to May 1991. (Age 46; 16
years of service)
15
<PAGE> 18
POSITION AND FIVE-YEAR
NAME OF EXECUTIVE OFFICER EMPLOYMENT HISTORY
- ------------------------- ----------------------
Mark H. Segura............. Vice President-Distribution Services since July
1997; General Manager-Distribution Services form
July 1996 to July 1997; Manager-Stores and
Transformer Management from October 1993 to July
1996; Supervisor-Distribution Engineering from June
1991 to October 1993. (Age 39; 13 years of service)
John L. Baltes, Jr......... Controller since April 1989. (Age 51; 16 years of
service)
Michael P. Prudhomme....... Secretary-Treasurer since January 1994; Secretary
from October 1993 to January 1994; Vice
PresidentCustomer Services from May 1985 to October
1993. (Age 54; 28 years of service)
Judy P. Miller............. Assistant Corporate Secretary since April 1995;
Acting Assistant Corporate Secretary from February
1995 to April 1995; Supervisor-Plant Accounting
from October 1993 to February 1995;
Supervisor-Income and Other Taxes from June 1990 to
October 1993. (Age 40; 13 years of service)
16
<PAGE> 19
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's common stock is listed for trading on the New York Stock
Exchange (NYSE) and the Pacific Stock Exchange. The following table sets forth
high and low sales prices for the Company's common stock as reported on the NYSE
Composite Tape and dividends paid per share during each calendar quarter of 1997
and 1996.
<TABLE>
<CAPTION>
1997 1996
---------------------------------------- ----------------------------------------
HIGH LOW DIVIDEND HIGH LOW DIVIDEND
---- --- -------- ---- --- --------
<S> <C> <C> <C> <C> <C> <C>
First Quarter........ $28 $26 $0.385 $27 3/4 $25 3/8 $0.375
Second Quarter....... $28 1/8 $24 3/4 $0.395 $27 3/8 $25 1/8 $0.385
Third Quarter........ $28 7/16 $25 13/16 $0.395 $27 1/4 $25 3/8 $0.385
Fourth Quarter....... $33 1/8 $25 9/16 $0.395 $29 1/4 $26 1/8 $0.385
</TABLE>
Subject to the prior rights of the holders of the respective series of the
Company's preferred stock, such dividends as determined by the Board of
Directors of the Company may be declared and paid on the common stock from time
to time out of funds legally available therefor. The provisions of the Company's
charter applicable to preferred stock and certain provisions contained in the
debt instruments of the Company under certain circumstances restrict the amount
of retained earnings available for the payment of dividends by the Company. The
most restrictive covenant requires that common shareholders' equity be not less
than 35% of total capitalization, including short-term debt. At December 31,
1997, approximately $114,300,000 of retained earnings was not restricted. On
January 23, 1998, the Board of Directors of the Company declared a quarterly
dividend of $0.395 per share, which dividend was paid on February 15, 1998, to
common shareholders of record on February 2, 1998.
As of March 16, 1998, there were 10,925 holders of record of the Company's
common stock, and the closing price of the Company's common stock as reported on
the NYSE Composite Tape was $32 11/16 per share.
ITEM 6. SELECTED FINANCIAL DATA
The information set forth in "Selected Financial Data" on page 1 of the
1997 Annual Report to Shareholders is incorporated herein by reference; such
information is filed as Exhibit 13 to this Report. This information should be
read in conjunction with the Consolidated Financial Statements and the related
Notes thereto set forth on pages 14 through 31 of the 1997 Annual Report to
Shareholders, which is filed as Exhibit 13 to this Report and incorporated
herein by reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information set forth in "Management's Discussion and Analysis of
Results of Operations and Financial Condition" on pages 2 through 11 of the 1997
Annual Report to Shareholders is incorporated herein by reference; such
information is filed as Exhibit 13 to this Report.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information set forth on pages 14 through 31 of the 1997 Annual Report
to Shareholders is incorporated herein by reference; such information is filed
as Exhibit 13 to this Report.
17
<PAGE> 20
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information set forth (i) under the subcaption "Directors" under the
caption "Election of Directors" on pages 2 and 3 of, and (ii) under the caption
"Section 16(a) Beneficial Ownership Reporting Compliance" on page 7 of the
Company's definitive Proxy Statement dated March 11, 1998, filed with the
Securities and Exchange Commission pursuant to Regulation 14A under the
Securities Exchange Act of 1934 (1998 Proxy Statement), is incorporated herein
by reference. See also "Executive Officers of the Registrant" on pages 20 and 21
of this Report.
ITEM 11. EXECUTIVE COMPENSATION
The information set forth (i) under the subcaption "Organization and
Compensation of the Board of Directors" under the caption "Election of
Directors" on pages 4 and 5 of, and (ii) under the caption "Executive
Compensation" on pages 8 through 16 of the 1998 Proxy Statement (excluding the
information required by paragraphs (k) and (l) of Item 402 of Regulation S-K) is
incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information set forth (i) under the caption "Security Ownership of
Directors and Management" on pages 6 and 7 of, and (ii) under the caption
"Security Ownership of Certain Beneficial Owners" on page 21 of the 1998 Proxy
Statement is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information set forth under the subcaption "Directors" under the
caption "Election of Directors" on pages 2 and 3 of the 1998 Proxy Statement is
incorporated herein by reference.
18
<PAGE> 21
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULE, AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
REFERENCE (PAGE)
-----------------------------
1997 ANNUAL
FORM 10-K REPORT TO
ANNUAL REPORT SHAREHOLDERS
------------- ------------
<C> <S> <C> <C>
14(a)(1) Consolidated Statements of Income for the years ended
December 31, 1997, 1996 and 1995 14
Consolidated Balance Sheets at December 31, 1997 and
1996 15
Consolidated Statements of Cash Flows for the years
ended December 31, 1997, 1996 and 1995 16
Consolidated Statements of Changes in Common
Shareholders' Equity for the years ended December
31, 1997, 1996 and 1995 17
Notes to Consolidated Financial Statements 18
Report of Independent Accountants 32
14(a)(2) Financial Statement Schedules Report of Independent
Accountants 32
Schedule II -- Valuation and Qualifying Accounts 33
Financial Statement Schedules other than those shown
in the above index are omitted because they are
either not required or are not applicable or the
required information is shown in the Consolidated
Financial Statements and Notes thereto.
</TABLE>
19
<PAGE> 22
14(a)(3) List of Exhibits
The Exhibits designated by an asterisk are filed herewith. The Exhibits not
so designated have been previously filed with the Securities and Exchange
Commission and are incorporated herein by reference. The Exhibits designated by
two asterisks are management contracts and compensatory plans and arrangements
required to be filed as Exhibits to this Report.
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
3(a) Restated Articles of Incorporation 1-5663 10-Q(3/92) 3
of the Company dated as of July
24, 1989, as amended through
April 24, 1992
3(b) Amended and Restated Bylaws of the 1-5663 10-Q(3/97) 3
Company, as amended to April 25,
1997
*4(a)(1) Indenture of Mortgage dated as of
July 1, 1950, between the
Company and First National Bank
of New Orleans, as Trustee
*4(a)(2) First Supplemental Indenture dated
as of October 1, 1951, to
Exhibit 4(a)(1)
*4(a)(3) Second Supplemental Indenture
dated as of June 1, 1952, to
Exhibit 4(a)(1)
*4(a)(4) Third Supplemental Indenture dated
as of January 1, 1954, to
Exhibit 4(a)(1)
*4(a)(5) Fourth Supplemental Indenture
dated as of November 1, 1954, to
Exhibit 4(a)(1)
4(a)(6) Tenth Supplemental Indenture dated 1-5663 10-K(1986) 4(a)(11)
as of September 1, 1965, to
Exhibit 4(a)(1)
4(a)(7) Eleventh Supplemental Indenture 2-32069 S-9(4/7/69) 2(m)
dated as of April 1, 1969, to
Exhibit 4(a)(1)
4(a)(8) Eighteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(8)
dated as of December 1, 1982, to
Exhibit 4(a)(1)
4(a)(9) Nineteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(9)
dated as of January 1, 1983, to
Exhibit 4(a)(1)
4(a)(10) Twenty-Sixth Supplemental 1-5663 8-K(3/90) 4(a)(27)
Indenture dated as of March 15,
1990, to Exhibit 4(a)(1)
4(b) Indenture between the Company and 33-24896 S-3(10/11/88) 4(b)
Bankers Trust Company, as
Trustee, dated as of October 1,
1988
</TABLE>
20
<PAGE> 23
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(b)(1) Agreement Appointing Successor 333-02895 S-3(4/26/96) 4(a)(2)
Trustee dated as of April 1,
1996 by and among Central
Louisiana Electric Company,
Inc., Bankers Trust Company and
The Bank of New York
4(c) Trust Indenture (The Industrial 1-5663 10-K(1991) 4(i)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, between The Industrial
Development Board of the Parish
of Rapides, Inc. and First
National Bank of Commerce
4(c)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(e)(1)
(The Industrial Development
Board of the Parish of Rapides,
Inc. (Louisiana) Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1993, between
The Industrial Development Board
of the Parish of Rapides, Inc.
and First National Bank of
Commerce, relating to Exhibit
4(c)
4(d) Refunding Agreement (The 1-5663 10-Q(6/91) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1991, between
the Company and The Industrial
Development Board of the Parish
of Rapides, Inc.
4(e) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(k)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1991, between
Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
</TABLE>
21
<PAGE> 24
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(e)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(g)(l)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(e)
4(f) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(g) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(m)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1991, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
4(g)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(i)(1)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(g)
4(h) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(i) $100,000,000 Credit Agreement 1-5663 10-Q(6/95) 4
dated as of June 15, 1995, among
the Company, certain Banks
parties thereto, and The Bank of
New York, as Agent
</TABLE>
22
<PAGE> 25
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(j) $25,000,000 Loan Agreement dated 1-5663 10-Q(3/97) 4
as of March 20, 1997, between
Whitney National Bank and the
Company
**10(a) 1990 Long-Term Incentive 1-5663 1990 Proxy A
Compensation Plan Statement
(4/90)
**10(b) 1981 Incentive Stock Option Plan 1-5663 10-K(1992) 10(i)
**10(c) Participation Agreement, Annual
Incentive Compensation Plan
**10(d) Deferred Compensation Plan for 1-5663 10-K(1992) 10(n)
Directors
**10(e)(1) Supplemental Executive Retirement 1-5663 10-K(1992) 10(o)(1)
Plan
**10(e)(2) Form of Supplemental Executive 1-5663 10-K(1992) 10(o)(2)
Retirement Plan Participation
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
**10(f) Form of Executive Severance 1-5663 10-K(1995) 10(f)
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
10(h)(1) Term Loan Agreement dated as of 1-5663 10-Q(3/91) 4(b)
April 2, 1991, among the 401(k)
Savings and Investment Plan ESOP
Trust, the Company, as
Guarantor, the Banks listed
therein and The Bank of New
York, as Agent
10(h)(2) Assignment and Assumption 1-5663 10-Q (3/91)
Agreement, effective as of May
6, 1991, between The Bank of New
York and the Canadian Imperial
Bank of Commerce, relating to
Exhibit 10(h)(1)
10(h)(3) Assignment and Assumption 1-5663 10-K(1991) 10(y)(3)
Agreement dated as of July 3,
1991, between The Bank of New
York and Rapides Bank and Trust
Company in Alexandria, relating
to Exhibit 10(h)(1)1
</TABLE>
23
<PAGE> 26
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
10(h)(4) Assignment and Assumption 1-5663 10-K(1992) 10(bb)(4)
Agreement dated as of July 6,
1992, among The Bank of New
York, CIBC, Inc. and Rapides
Bank and Trust Company in
Alexandria, as Assignors, the
401(k) Savings and Investment
Plan ESOP Trust, as Borrower,
and the Company, as Guarantor,
relating to Exhibit 10(h)(1)
*10(i) Reimbursement Agreement (The
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of October 15, 1997,
among the Company, various
financial institutions, and
Westdeutsche Landesbank
Gironzentiale, New York Branch,
as Agent
10(i)(1) Remarketing Agreement (The 1-5663 10-Q(9/94) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of July 19, 1994,
between the Company and
PaineWebber Incorporated
10(i)(2) Tender Agreement (The Industrial 1-5663 10-K(1991) 10(z)(2)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
</TABLE>
24
<PAGE> 27
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
10(i)(3) Amendment No. 1 to Reimbursement 1-5663 10-K(1994) 10(p)(3)
Agreements (The Industrial
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991, 1991A and 1991B)
dated as of December 9, 1994,
among the Company, various
financial institutions, Swiss
Bank Corporation, New York
Branch, as Issuer of the Letters
of Credit, and Swiss Bank
Corporation, New York Branch, as
Agent, relating to Exhibits
10(i), 10(j) and 10(k)
*10(j) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(j)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(j)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(aa)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
</TABLE>
25
<PAGE> 28
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
*10(k) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(k)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(k)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(bb)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
10(l) Selling Agency Agreement between 333-02895 S-3(12/10/96) 1
the Company and Salomon Brothers
Inc, Merrill Lynch & Co., Smith
Barney Inc. and First Chicago
Capital Markets, Inc. dated as
of December 12, 1996
*10(m) 401(k) Savings and Investment Plan
ESOP Trust Agreement dated as of
August 1, 1997, between UMB
Bank, N.A. and the Company
*10(m)(1) First Amendment to 401(k) Savings
and Investment Plan ESOP Trust
Agreement dated as of October 1,
1997, between UMB Bank, N.A. and
the Company
*11 Computation of Net Income Per
Common Share
</TABLE>
26
<PAGE> 29
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
*12 Computation of Earnings to Fixed
Charges and Earnings to Combined
Fixed Charges and Preferred
Stock Dividends
*13 Management's Discussion and
Analysis of Financial Condition
and Results of Operations,
Consolidated Financial
Statements and Notes and Report
of Independent Accountants
*23 Consent of Independent Accountants
*24 Power of Attorney from each
Director of the Company whose
signature is affixed to this
Form 10-K for the year ended
December 31, 1997
*27 Financial Data Schedule UT
</TABLE>
14(b) Reports on Form 8-K
During the three-month period ended December 31, 1997, the Company filed no
Current Reports on Form 8-K.
27
<PAGE> 30
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
of Central Louisiana Electric Company, Inc.:
Our report on the consolidated financial statements of Central Louisiana
Electric Company, Inc. has been incorporated by reference in this Form 10-K from
page 32 of the 1997 Annual Report to Shareholders of Central Louisiana Electric
Company, Inc. In connection with our audits of such financial statements, we
have also audited the related financial statement schedule listed in Item
14(a)(2) on page 25 of this Form 10-K. This financial statement schedule is the
responsibility of the Company's management. Our responsibility is to express an
opinion on this financial statement schedule based upon our audit.
In our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
January 27, 1998
28
<PAGE> 31
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
(IN THOUSANDS)
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D COL. E
- ------------------------------------------- ---------- ---------- --------------- ------------
ADDITIONS UNCOLLECTIBLE
BALANCE AT CHARGED TO ACCOUNTS BALANCE AT
BEGINNING COSTS AND WRITE-OFFS, END OF
ALLOWANCE FOR UNCOLLECTIBLE ACCOUNTS OF PERIOD EXPENSES LESS RECOVERIES PERIOD(1)
------------------------------------ ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
Year Ended December 31, 1997............... $681 $770 $767 $684
Year Ended December 31, 1996............... $538 $887 $744 $681
Year Ended December 31, 1995............... $444 $817 $723 $538
</TABLE>
- ---------------
(1) Deducted in the balance sheet.
29
<PAGE> 32
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
(Registrant)
/s/ GREGORY L. NESBITT
------------------------------------
Gregory L. Nesbitt, President
and Chief Executive Officer)
Date: March 31, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ GREGORY L. NESBITT President, Chief Executive Officer March 31, 1998
- ----------------------------------------------------- and Director
(Gregory L. Nesbitt) (Principal Executive Officer)
/s/ THOMAS J. HOWLIN Senior Vice President, Finance March 31, 1998
- ----------------------------------------------------- (Chief Financial Officer)
(Thomas J. Howlin)
SHERIAN G. CADORIA
RICHARD B. CROWELL
J. PATRICK GARRETT
F. BEN JAMES, JR.
HUGH J. KELLY Directors*
A. DELOACH MARTIN, JR.
ROBERT T. RATCLIFF
EDWARD M. SIMMONS
WILLIAM H. WALKER, JR.
* By: /s/ THOMAS J. HOWLIN March 31, 1998
-------------------------------------------------
(Thomas J. Howlin, as Attorney-in-Fact)
</TABLE>
30
<PAGE> 33
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
3(a) Restated Articles of Incorporation 1-5663 10-Q(3/92) 3
of the Company dated as of July
24, 1989, as amended through
April 24, 1992
3(b) Amended and Restated Bylaws of the 1-5663 10-Q(3/97) 3
Company, as amended to April 25,
1997
*4(a)(1) Indenture of Mortgage dated as of
July 1, 1950, between the
Company and First National Bank
of New Orleans, as Trustee
*4(a)(2) First Supplemental Indenture dated
as of October 1, 1951, to
Exhibit 4(a)(1)
*4(a)(3) Second Supplemental Indenture
dated as of June 1, 1952, to
Exhibit 4(a)(1)
*4(a)(4) Third Supplemental Indenture dated
as of January 1, 1954, to
Exhibit 4(a)(1)
*4(a)(5) Fourth Supplemental Indenture
dated as of November 1, 1954, to
Exhibit 4(a)(1)
4(a)(6) Tenth Supplemental Indenture dated 1-5663 10-K(1986) 4(a)(11)
as of September 1, 1965, to
Exhibit 4(a)(1)
4(a)(7) Eleventh Supplemental Indenture 2-32069 S-9(4/7/69) 2(m)
dated as of April 1, 1969, to
Exhibit 4(a)(1)
4(a)(8) Eighteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(8)
dated as of December 1, 1982, to
Exhibit 4(a)(1)
4(a)(9) Nineteenth Supplemental Indenture 1-5663 10-K(1993) 4(a)(9)
dated as of January 1, 1983, to
Exhibit 4(a)(1)
4(a)(10) Twenty-Sixth Supplemental 1-5663 8-K(3/90) 4(a)(27)
Indenture dated as of March 15,
1990, to Exhibit 4(a)(1)
4(b) Indenture between the Company and 33-24896 S-3(10/11/88) 4(b)
Bankers Trust Company, as
Trustee, dated as of October 1,
1988
</TABLE>
<PAGE> 34
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(b)(1) Agreement Appointing Successor 333-02895 S-3(4/26/96) 4(a)(2)
Trustee dated as of April 1,
1996 by and among Central
Louisiana Electric Company,
Inc., Bankers Trust Company and
The Bank of New York
4(c) Trust Indenture (The Industrial 1-5663 10-K(1991) 4(i)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, between The Industrial
Development Board of the Parish
of Rapides, Inc. and First
National Bank of Commerce
4(c)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(e)(1)
(The Industrial Development
Board of the Parish of Rapides,
Inc. (Louisiana) Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1993, between
The Industrial Development Board
of the Parish of Rapides, Inc.
and First National Bank of
Commerce, relating to Exhibit
4(c)
4(d) Refunding Agreement (The 1-5663 10-Q(6/91) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of May 1, 1991, between
the Company and The Industrial
Development Board of the Parish
of Rapides, Inc.
4(e) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(k)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1991, between
Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
</TABLE>
<PAGE> 35
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(e)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(g)(l)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991A)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(e)
4(f) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(g) Trust Indenture (Parish of DeSoto, 1-5663 10-K(1991) 4(m)
State of Louisiana Adjustable
Tender Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1991, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce
4(g)(1) First Supplemental Trust Indenture 1-5663 10-K(1994) 4(i)(1)
(Parish of DeSoto, State of
Louisiana Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991B)
dated as of May 1, 1993, between
the Parish of DeSoto, State of
Louisiana and First National
Bank of Commerce, relating to
Exhibit 4(g)
4(h) Refunding Agreement (Parish of 1-5663 10-Q(6/91) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, between the Parish of
DeSoto, State of Louisiana and
the Company
4(i) $100,000,000 Credit Agreement 1-5663 10-Q(6/95) 4
dated as of June 15, 1995, among
the Company, certain Banks
parties thereto, and The Bank of
New York, as Agent
</TABLE>
<PAGE> 36
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
4(j) $25,000,000 Loan Agreement dated 1-5663 10-Q(3/97) 4
as of March 20, 1997, between
Whitney National Bank and the
Company
**10(a) 1990 Long-Term Incentive 1-5663 1990 Proxy A
Compensation Plan Statement
(4/90)
**10(b) 1981 Incentive Stock Option Plan 1-5663 10-K(1992) 10(i)
**10(c) Participation Agreement, Annual
Incentive Compensation Plan
**10(d) Deferred Compensation Plan for 1-5663 10-K(1992) 10(n)
Directors
**10(e)(1) Supplemental Executive Retirement 1-5663 10-K(1992) 10(o)(1)
Plan
**10(e)(2) Form of Supplemental Executive 1-5663 10-K(1992) 10(o)(2)
Retirement Plan Participation
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
**10(f) Form of Executive Severance 1-5663 10-K(1995) 10(f)
Agreement between the Company
and the following officers:
Gregory L. Nesbitt, David M.
Eppler, Catherine C. Powell,
Darrell J. Dubroc and John L.
Baltes, Jr.
10(h)(1) Term Loan Agreement dated as of 1-5663 10-Q(3/91) 4(b)
April 2, 1991, among the 401(k)
Savings and Investment Plan ESOP
Trust, the Company, as
Guarantor, the Banks listed
therein and The Bank of New
York, as Agent, relating to
Exhibit 10(m)
10(h)(2) Assignment and Assumption 1-5663 10-Q (3/91)
Agreement, effective as of May
6, 1991, between The Bank of New
York and the Canadian Imperial
Bank of Commerce, relating to
Exhibit 10(h)(1)
10(h)(3) Assignment and Assumption 1-5663 10-K(1991) 10(y)(3)
Agreement dated as of July 3,
1991, between The Bank of New
York and Rapides Bank and Trust
Company in Alexandria, relating
to Exhibit 10(h)(1)1
</TABLE>
<PAGE> 37
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
10(h)(4) Assignment and Assumption 1-5663 10-K(1992) 10(bb)(4)
Agreement dated as of July 6,
1992, among The Bank of New
York, CIBC, Inc. and Rapides
Bank and Trust Company in
Alexandria, as Assignors, the
401(k) Savings and Investment
Plan ESOP Trust, as Borrower,
and the Company, as Guarantor,
relating to Exhibit 10(h)(1)
*10(i) Reimbursement Agreement (The
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of October 15, 1997,
among the Company, various
financial institutions, and
Westdeutsche Landesbank
Gironzentiale, New York Branch,
as Agent
10(i)(1) Remarketing Agreement (The 1-5663 10-Q(9/94) 10(a)
Industrial Development Board of
the Parish of Rapides, Inc.
(Louisiana) Adjustable Tender
Pollution Control Revenue
Refunding Bonds, Series 1991)
dated as of July 19, 1994,
between the Company and
PaineWebber Incorporated
10(i)(2) Tender Agreement (The Industrial 1-5663 10-K(1991) 10(z)(2)
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
</TABLE>
<PAGE> 38
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
10(i)(3) Amendment No. 1 to Reimbursement 1-5663 10-K(1994) 10(p)(3)
Agreements (The Industrial
Development Board of the Parish
of Rapides, Inc. (Louisiana)
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991, 1991A and 1991B)
dated as of December 9, 1994,
among the Company, various
financial institutions, Swiss
Bank Corporation, New York
Branch, as Issuer of the Letters
of Credit, and Swiss Bank
Corporation, New York Branch, as
Agent, relating to Exhibits
10(i), 10(j) and 10(k)
*10(j) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(j)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(b)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(j)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(aa)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991A) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
</TABLE>
<PAGE> 39
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
*10(k) Reimbursement Agreement (Parish of
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of
October 15, 1997, among the
Company, various financial
institutions, and Westdeutsche
Landesbank Gironzentiale, New
York Branch, as Agent
10(k)(1) Remarketing Agreement (Parish of 1-5663 10-Q(9/94) 10(c)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of July
19, 1994, between the Company
and PaineWebber Incorporated
10(k)(2) Tender Agreement (Parish of 1-5663 10-K(1991) 10(bb)(2)
DeSoto, State of Louisiana
Adjustable Tender Pollution
Control Revenue Refunding Bonds,
Series 1991B) dated as of May 1,
1991, among First National Bank
of Commerce, as Trustee, the
Company, The First National Bank
of Chicago, as Tender Agent and
Registrar, Smith Barney, Harris
Upham & Co. Incorporated, as
Remarketing Agent, and Swiss
Bank Corporation, as Bank
10(l) Selling Agency Agreement between 333-02895 S-3(12/10/96) 1
the Company and Salomon Brothers
Inc, Merrill Lynch & Co., Smith
Barney Inc. and First Chicago
Capital Markets, Inc. dated as
of December 12, 1996
*10(m) 401(k) Savings and Investment Plan
ESOP Trust Agreement dated as of
August 1, 1997, between UMB
Bank, N.A. and the Company
*10(m)(1) First Amendment to 401(k) Savings
and Investment Plan ESOP Trust
Agreement dated as of October 1,
1997, between UMB Bank, N.A. and
the Company
*11 Computation of Net Income Per
Common Share
</TABLE>
<PAGE> 40
<TABLE>
<CAPTION>
SEC FILE OR REGISTRATION
REGISTRATION STATEMENT EXHIBIT
EXHIBITS NUMBER OR REPORT NUMBER
- ----------------------------------------------------------- ------------ ------------- ---------
<C> <S> <C> <C> <C>
*12 Computation of Earnings to Fixed
Charges and Earnings to Combined
Fixed Charges and Preferred
Stock Dividends
*13 Management's Discussion and
Analysis of Financial Condition
and Results of Operations,
Consolidated Financial
Statements and Notes and Report
of Independent Accountants
*23 Consent of Independent Accountants
*24 Power of Attorney from each
Director of the Company whose
signature is affixed to this
Form 10-K for the year ended
December 31, 1997
*27 Financial Data Schedule UT
</TABLE>
<PAGE> 1
EXHIBIT 4(a)(1)
================================================================================
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE
------------------------
INDENTURE OF MORTGAGE
------------------------
DATED AS OF JULY 1, 1950
------------------------
FIRST MORTGAGE BONDS
================================================================================
PAGES OF ALLEN, LANE & SCOTT, PHILADELPHIA
<PAGE> 2
TABLE OF CONTENTS*
------------
<TABLE>
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<S> <C>
PARTIES .................................................................. 1
RECITALS ................................................................. 1
FORM OF COUPON BONDS OF SERIES A ......................................... 2
FORM OF COUPON FOR BONDS OF SERIES A ..................................... 8
FORM OF REGISTERED BOND WITHOUT COUPONS OF SERIES A ...................... 9
FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE ............................. 15
RECITAL AS TO FORMS OF BONDS OF OTHER SERIES ............................. 15
RECITAL OF COMPLIANCE WITH LEGAL REQUIREMENTS ............................ 16
GRANTING CLAUSES ......................................................... 16
DESCRIPTION OF PROPERTY .................................................. 17
GENERAL AND AFTER-ACQUIRED PROPERTY CLAUSES .............................. 43
APPURTENANCES, ETC. ...................................................... 47
PROPERTIES EXCEPTED FROM LIEN OF INDENTURE ............................... 48
HABENDUM ................................................................. 50
SUBJECT CLAUSE ........................................................... 50
GRANT IN TRUST ........................................................... 50
DEFEASANCE CLAUSE ........................................................ 50
COVENANT CLAUSE .......................................................... 51
ARTICLE I.
DEFINITIONS
SEC. 1.01 -- Explanatory Statement ...................................... 51
SEC. 1.02 -- "the Company" .............................................. 51
"the Trustee" .............................................. 52
"this Indenture" ........................................... 52
"bond" or "bonds" .......................................... 52
"holder" ................................................... 52
"person" ................................................... 52
"outstanding" -- as to bonds ............................... 52
"resolution" and "resolution of the Board of Directors" .... 54
"officers' certificate" .................................... 54
"opinion of counsel" ....................................... 54
"independent" .............................................. 55
"control" .................................................. 55
"affiliate" ................................................ 55
"responsible officers" -- of the Trustee ................... 55
"daily newspaper" .......................................... 55
</TABLE>
- ---------------
* The table of contents is not a part of the Indenture as executed.
<PAGE> 3
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<TABLE>
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<S> <C>
SEC. 1.03 -- "property" ................................................. 56
"the lien hereof" and "the lien of this Indenture".......... 56
"the mortgaged and pledged property"........................ 56
"property additions"........................................ 56
"amount" ................................................... 58
"bondable property" ........................................ 58
"nonbondable property" ..................................... 58
"cost" ..................................................... 59
"fair value to the company" ................................ 61
SEC. 1.04 -- "permitted liens" .......................................... 62
"funded liens" ............................................. 63
"unfunded liens" ........................................... 63
SEC. 1.05 -- "retirements of bondable property and amount thereof" ...... 64
"minimum provision for property retirements or
depreciation" ........................................... 65
"amount of net property retirements" ....................... 65
SEC. 1.06 -- (A) "bondable value of property additions" ................. 65
(B) Officers' certificate of bondable value of property
additions, requirements of .......................... 66
(C) Documents to accompany officers' certificate of
bondable value of property additions ................. 69
SEC. 1.07 -- "net earnings certificate" ................................. 71
"interest earnings requirement" ............................ 74
ARTICLE II.
DESCRIPTION, FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS
SEC. 2.01 -- Bonds issuable in series ................................... 75
Forms of bonds ............................................. 75
Matters in respect of which bonds of the several series
may differ ............................................... 76
SEC. 2.02 -- Execution of bonds ......................................... 76
SEC. 2.03 -- Registered bonds without coupons ........................... 78
SEC. 2.04 -- Registration of coupon bonds, effect of .................... 79
SEC. 2.05 -- Exchanges of bonds ......................................... 80
Restrictions upon exchanges or transfers ................... 80
Charges upon exchange or transfer .......................... 81
SEC. 2.06 -- Exchange of bonds upon merger or consolidation of
the Company .............................................. 81
SEC. 2.07 -- Temporary bonds ............................................ 82
SEC. 2.08 -- Mutilated, destroyed, lost or stolen bonds and coupons ..... 83
SEC. 2.09 -- Cancellation of surrendered bonds .......................... 84
SEC. 2.10 -- Designation, provisions and denominations of bonds of
Series A ................................................. 85
</TABLE>
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ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS
<TABLE>
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<S> <C>
SEC. 3.01 -- Who may sign certificates and opinions ..................... 86
Required statements ........................................ 86
Accompanying opinion of counsel and certificate of
officers ................................................. 87
Basis of certificate or opinion ............................ 87
ARTICLE IV.
ISSUANCE OF BONDS
SEC. 4.01 -- Amount of bonds which may be secured hereby ................ 88
Board of directors of Executive Committee may fix
terms and consideration for issue, etc. of bonds ......... 88
SEC. 4.02 -- $5,500,000 of bonds of Series A issuable forthwith ......... 89
SEC. 4.03 -- Bonds issuable on basis of property additions .............. 89
SEC. 4.04 -- Bonds issuable upon retirement of bonds previously
outstanding hereunder .................................... 90
SEC. 4.05 -- Bonds issuable upon deposit of cash with Trustee ........... 92
Withdrawal, use or application of cash so deposited ........ 92
SEC. 4.06 -- Documentary requirements for issuance of bonds ............. 93
SEC. 4.07 -- Requirement as to net earnings for issuance of bonds in
certain cases ............................................ 94
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY
SEC. 5.01 -- Lawful possession; maintenance of lien; right of
mortgage ................................................. 94
Discharge and satisfaction of existing prior Indenture ..... 95
SEC. 5.02 -- Payment of principal and interest; cancellation
of coupons ............................................... 96
Non-extension of time for payment of interest .............. 96
SEC. 5.03 -- Maintenance of office or agency for payments,
notices, etc. ............................................ 96
Failure to maintain such office or agency .................. 96
SEC. 5.04 -- Duties of paying agent other than Trustee .................. 97
SEC. 5.05 -- Payment of taxes, etc., discharge of liens ................. 98
SEC. 5.06 -- Insurance on property of Company ........................... 99
SEC. 5.07 -- Covenants as to maintenance ................................ 101
Depreciation certificate ................................... 102
"depreciation credit" ...................................... 103
"unsatisfied balance" ...................................... 103
Withdrawal, use or application of cash deposited
hereunder ................................................ 104
SEC. 5.08 -- Maintenance of corporate existence and franchises .......... 105
SEC. 5.09 -- Advances by Trustee ........................................ 105
</TABLE>
<PAGE> 5
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<TABLE>
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<S> <C>
SEC. 5.10 -- Instruments of further assurance ........................... 106
SEC. 5.11 -- Recording, filing of this Indenture, etc. .................. 106
SEC. 5.12 -- Books of record and account; inspection
thereof .................................................. 107
SEC. 5.13 -- Not to issue or permit to be issued any bonds hereunder
other than in accordance with provisions of this
Indenture and faithful performance of covenants,
conditions, etc. ......................................... 107
SEC. 5.14 -- Procedure upon cancellation and discharge of any unfunded
lien ..................................................... 107
SEC. 5.15 -- Not to purchase property subject to unfunded lien, if
thereby the aggregate of unfunded lien bonds which
exceed 15% of all bonds issued hereunder ................. 108
SEC. 5.16 -- Not to permit a default on any unfunded lien ............... 108
SEC. 5.17 -- Will appoint a Trustee to avoid vacancy .................... 108
SEC. 5.18 -- Will not merge or consolidate or sell property
substantially as a whole except on prescribed
conditions ............................................... 108
SEC. 5.19 -- Recitals are true .......................................... 109
SEC. 5.20 -- Dividend restriction ....................................... 109
SEC. 5.21 -- Examination of mortgaged property .......................... 109
SEC. 5.22 -- Qualify the Indenture under Trust Indenture Act upon
request .................................................. 112
SEC. 5.23 -- Deposit with Trustee of part of proceeds of original
issue of bonds of Series A ............................... 112
ARTICLE VI.
SINKING FUND FOR BONDS OF SERIES A
SEC. 6.01 -- Covenant to pay certain amounts in cash to Trustee for a
sinking fund for bonds of Series A ....................... 113
Trustee to apply cash to purchase or redemption of bonds
of Series A .............................................. 114
SEC. 6.02 -- Covenant to pay expenses of Trustee to administer sinking
fund ..................................................... 114
SEC. 6.03 -- Bonds delivered to Trustee for credit against sinking fund
requirements and bonds purchased or redeemed to be
cancelled ................................................ 114
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SEC. 7.01 -- Company to furnish bondholders' lists to Trustee ........... 114
SEC. 7.02 -- (A) Preservation of information by Trustee ................. 115
Destruction of information by Trustee; conditions
thereof .............................................. 115
(B) Access of bondholders to list: conditions thereof ...... 115
Alternatives of Trustee to granting access to
bondholders' list ...................................... 116
(C) Trustee not accountable for mailing material ........... 117
</TABLE>
<PAGE> 6
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<TABLE>
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<S> <C>
SEC. 7.03 -- (A) Company to file with Trustee copies of reports filed
with Securities and Exchange Commission .............. 117
(B) Filing of additional reports, etc., may be required .... 117
(C) Summaries of reports, etc., to be sent to
bondholders .......................................... 118
(D) Company to file with Trustee financial statements in
certain cases ........................................ 118
(E) Officers' certificate .................................. 118
SEC. 7.04 -- (A) Annual information to be furnished to bondholders by
Trustee .............................................. 119
(1) Eligibility of Trustee ........................... 119
(2) Advances made by Trustee ......................... 119
(3) Particulars of indebtedness of Company to
Trustee, individually .......................... 119
(4) Property in possession of Trustee, as such ....... 119
(5) Releases of property ............................. 119
(6) Additional issues of bonds ....................... 120
(7) Performance of Trustee's duties .................. 120
(B) Additional reports ..................................... 120
(1) Releases of property ............................. 120
(2) Advances made by the Trustee ..................... 120
(C) Bondholders entitled to reports ........................ 121
(D) Reports to be filed with Securities and Exchange
Commission and Stock Exchanges ....................... 121
(E) Reports by individual trustee, separate trustee or
co-trustee ........................................... 121
(F) Bonds to be deemed outstanding ......................... 122
ARTICLE VIII.
REDEMPTION OR PURCHASE OF BONDS
SEC. 8.01 -- What bonds redeemable ...................................... 122
SEC. 8.02 -- Notice of redemption ....................................... 123
Redemption of part of any series ........................... 124
SEC. 8.03 -- Redemption moneys to be deposited with Trustee ............. 125
Bonds cease to bear interest ............................... 125
Redemption of portion of registered bonds .................. 126
SEC. 8.04 -- Deposit of redemption price with Trustee; application
thereof; effect thereof .................................. 126
SEC. 8.05 -- If redemption date be a legal holiday ...................... 126
SEC. 8.06 -- Purchase of bonds by Trustee .............................. 127
Price ..................................................... 127
Procedure ................................................. 127
SEC. 8.07 -- Expenses of Trustee on purchase or redemption to be paid
by Company ............................................... 128
</TABLE>
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ARTICLE IX.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY
<TABLE>
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<S> <C>
SEC. 9.01 -- Company's possession and enjoyment ......................... 128
SEC. 9.02 -- What Company may do without release or consent by
Trustee .................................................. 129
SEC. 9.03 -- (A) Release of property by Trustee ......................... 130
(B) Officers' certificate and accompanying certificates
and opinions ......................................... 132
(C) Release of property subject to an unfunded lien ....... 138
SEC. 9.04 -- (A) Release of property upon sale or exchange; conditions
thereof .............................................. 139
Company covenants to subject consideration to lien
hereof ............................................... 140
(B) Release of certain nonbondable property; conditions
thereof .............................................. 140
SEC. 9.05 -- Release of property taken by eminent domain or purchased
by governmental body ..................................... 142
SEC. 9.06 -- (A) Withdrawal, use or application of money received by
Trustee for releases ................................. 142
(B) Withdrawal of money representing release of
nonbondable property ................................. 144
SEC. 9.07 -- (A) Disposition of unfunded lien bonds and sums paid
thereon .............................................. 145
(B) Disposition of evidences of indebtedness and sums
paid thereon ......................................... 147
Disposition of amounts paid on stock ................... 148
Trustee's rights with respect to pledged evidences of
indebtedness and stock ............................... 149
SEC. 9.08 -- When property in hands of receiver or trustee .............. 149
SEC. 9.09 -- Trustee in its discretion may exercise powers under this
Article notwithstanding default .......................... 150
SEC. 9.10 -- Purchaser need not ascertain authority of Trustee, etc. .... 150
SEC. 9.11 -- Property acquired to take the place of property released
to be subjected to the lien hereof ....................... 150
ARTICLE X.
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT
SEC. 10.01 -- What constitutes "completed default" ....................... 151
Declaration of principal and accrued interest due upon
default .................................................. 152
Holders of majority in amount of bonds may annul
declaration .............................................. 153
SEC. 10.02 -- Trustee to notify bondholders of known defaults;
exceptions ............................................... 153
SEC. 10.03 -- Trustee may take possession and operate .................... 153
Application of income ...................................... 154
When Trustee shall surrender possession to Company ......... 155
Trustee entitled to receive sums payable on bonds .......... 155
Procedure if receiver appointed ............................ 155
SEC. 10.04 -- Power to sell all the mortgaged property ................... 156
Notice by publication ...................................... 156
</TABLE>
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SEC. 10.05 -- Judicial proceedings by Trustee ............................ 156
When action by Trustee obligatory .......................... 157
SEC. 10.06 -- Holders of majority in amount of bonds may direct sale
of property, etc. ........................................ 157
SEC. 10.07 -- Appointment of receiver .................................... 158
SEC. 10.08 -- All bonds to become due and payable upon sale of
property ................................................. 158
SEC. 10.09 -- Purchase by bondholders .................................... 158
SEC. 10.10 -- Receipt of Trustee or sale officer as discharge to
purchaser ................................................ 158
SEC. 10.11 -- Effect of sale on rights of Company ........................ 159
SEC. 10.12 -- Disposition of proceeds of sale ............................ 159
Order of application
(1) taxes, etc., compensation of Trustee ................. 160
(2) principal and interest ............................... 160
(3) redemption premiums .................................. 161
(4) surplus to Company ................................... 161
SEC. 10.13 -- Waiver of advantage of any appraisement, valuation,
stay, extension or redemption laws and of right to
marshal assets ........................................... 161
SEC. 10.14 -- Right of Trustee to sue as trustee of express trust ........ 161
Judgment may be taken by Trustee ........................... 162
Lien of Indenture not to be affected by judgment or
levy of execution thereon ................................ 163
Powers of Trustee in reorganization, bankruptcy, etc.,
proceedings .............................................. 163
Application of moneys collected ............................ 163
Trustee's right of entry, etc.; to appointment of
receiver; to retain possession of stocks, etc. ........... 164
SEC. 10.15 -- Possession of bonds unnecessary in action by Trustee ....... 164
SEC. 10.16 -- Limitations on rights of bondholders to institute legal
proceedings under Indenture .............................. 164
SEC. 10.17 -- Court may require undertaking for costs .................... 165
SEC. 10.18 -- Waivers of period of grace ................................. 166
SEC. 10.19 -- If proceedings abandoned or determined adversely to
Trustee, Trustee and Company restored to former
position and rights ...................................... 166
SEC. 10.20 -- Irrevocable appointment of Trustee as attorney-in-fact
of bondholders ........................................... 166
SEC. 10.21 -- Remedies cumulative ........................................ 167
Delay, etc. no waiver of rights ............................ 167
Waiver of default not to extend to subsequent default ...... 167
ARTICLE XI.
EVIDENCE OF BONDHOLDERS' ACTION AND OWNERSHIP OF BONDS
SEC. 11.01 -- Evidence of action by bondholders .......................... 167
Proof of execution of instrument or writing ................ 168
Proof of amount of bonds held .............................. 168
</TABLE>
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SEC. 11.02 -- Ownership of temporary or coupon bonds and coupons ......... 168
Ownership of registered bonds .............................. 169
Inspection of bonds ........................................ 169
SEC. 11.03 -- In determining whether holders of requisite amount of
bonds have concurred in any demand, etc., bonds
owned by Company or affiliate to be disregarded .......... 169
SEC. 11.04 -- Bondholder may revoke consent prior to evidencing to
Trustee of taking of action by bondholders ............... 169
ARTICLE XII.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK;
STOCKHOLDERS, OFFICERS AND DIRECTORS
SEC. 12.01 -- No recourse clause ......................................... 170
ARTICLE XIII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SEC. 13.01 -- Company may merge, consolidate, etc., upon certain
terms ..................................................... 171
No impairment of lien ....................................... 171
Assumption of obligations ................................... 171
SEC. 13.02 -- Right of successor corporation .............................. 172
Execution of indenture assuming obligations ................. 172
Right to issue bonds, etc. .................................. 172
SEC. 13.03 -- Extent of lien in case of consolidation, etc. ............... 174
ARTICLE XIV.
CONCERNING THE TRUSTEE
SEC. 14.01 -- Eligibility Requirements .................................... 174
Office of Trustee not to be vacant .......................... 175
SEC. 14.02 -- Acceptance of trust ......................................... 175
Degree of care to be exercised by Trustee ................... 175
SEC. 14.03 -- Limitations on liability of Trustee ......................... 175
SEC. 14.04 -- Recitals are by Company ..................................... 176
SEC. 14.05 -- Limitation on personal liability of Trustee after
entry ..................................................... 176
SEC. 14.06 -- Notice by Trustee to Company ................................ 176
SEC. 14.07 -- When Trustee protected in relying on documents and
opinions of counsel ....................................... 177
SEC. 14.08 -- Trustee not responsible for approval of experts;
exceptions ................................................ 177
SEC. 14.09 -- Trustee may own bonds ....................................... 178
SEC. 14.10 -- Money received by Trustee hereunder to be held in
trust ..................................................... 178
SEC. 14.11 -- Compensation of Trustee ..................................... 178
Indemnity of Trustee ........................................ 178
</TABLE>
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<TABLE>
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<S> <C>
SEC. 14.12 -- Proof of matters by certificate ............................ 179
SEC. 14.13 -- Incidental powers of Trustee ............................... 179
SEC. 14.14 -- Trustee may not have a conflicting interest ................ 179
When Trustee deemed to have a conflicting interest ......... 180
Definition of terms used in Section 14.14 (D) .............. 183
"security" and "securities" ................................ 183
"voting security" .......................................... 183
"director" ................................................. 183
"executive officer" ........................................ 184
"underwriter" .............................................. 184
"Company" .................................................. 184
Computation of percentages under Section 14.14 (D) ......... 184
Definition of terms used in Section 14.14 (E) .............. 185
"amount" ................................................... 185
"outstanding" .............................................. 185
Application of this section to separate or co-trustee ...... 185
SEC. 14.15 -- Obligation of Trustee as creditor of Company to
account .................................................. 186
Exceptions to obligation to account ........................ 186
Disposition of special account ............................. 187
This section binding on Trustee who has resigned ........... 188
"default" defined for this section ......................... 189
Creditor relationships excluded from this section in
certain cases ........................................... 189
Definition of terms used in this section ................... 190
"cash transaction" ......................................... 190
"self-liquidating paper" ................................... 190
"Trustee" .................................................. 190
"Company" .................................................. 190
SEC. 14.16 -- Trustee may resign; procedure .............................. 190
SEC. 14.17 -- Trustee may be removed; procedure .......................... 191
SEC. 14.18 -- Appointment of successor trustee; procedure ................ 191
Lien of Trustee after resignation or removal ............... 192
SEC. 14.19 -- Appointment of separate or co-trustee ...................... 193
Conditions subject to which separate or co-trustee is
to be appointed .......................................... 193
(1) Rights, etc., to be exercised jointly ................ 193
(2) Authentication of bonds .............................. 193
(3) Removal or resignation of separate or co-trustee;
appointment of successor ........................... 194
No personal liability for acts of other trustees ........... 194
Notices to trustees ........................................ 194
Contents, filing, etc., of instruments appointing
co-trustee ............................................... 194
Separate or co-trustee may appoint Trustee as agent ........ 195
Effect of resignation, incapacity of separate or
co-trustee ............................................... 195
</TABLE>
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<TABLE>
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<S> <C>
SEC. 14.20 -- Instruments to be executed by successor trustee ............ 195
Requirements of predecessor on retiring .................... 195
SEC. 14.21 -- Effect of merger or consolidation of Trustee ............... 196
SEC. 14.22 -- Claims of Trustees, etc. ................................... 196
ARTICLE XV.
DEFEASANCE
SEC. 15.01 -- Satisfaction and discharge of Indenture .................... 199
SEC. 15.02 -- Application by Trustee of funds deposited for payment
of bonds and coupons ..................................... 200
SEC. 15.03 -- Repayment of moneys held by paying agent ................... 200
SEC. 15.04 -- When Trustee to pay over to Company moneys unclaimed ....... 200
ARTICLE XVI.
MEETINGS OF BONDHOLDERS
SEC. 16.01 -- Purposes for which meetings may be called .................. 201
SEC. 16.02 -- Manner of calling meetings ................................. 201
Determination of bonds which shall be deemed to be
affected ................................................. 202
SEC. 16.03 -- Call of meetings by company or bondholders ................. 202
SEC. 16.04 -- Who may attend and vote at meetings ........................ 203
SEC. 16.05 -- Regulations may be made by Trustee ......................... 203
Conduct of meeting; voting rights; adjournment ............. 204
SEC. 16.06 -- Manner of voting at meetings and record to be kept ......... 204
SEC. 16.07 -- Exercise of rights of Trustee and bondholders not
to be hindered or delayed ................................ 205
ARTICLE XVII.
SUPPLEMENTAL INDENTURES
SEC. 17.01 -- Purposes for which supplemental indentures may be
entered into without consent of bondholders .............. 205
SEC. 17.02 -- Modification of Indenture with consent of 75% in
principal amounts of bonds ............................... 207
SEC. 17.03 -- Effect of supplemental indentures .......................... 208
SEC. 17.04 -- Bonds may bear notation of changes by supplemental
indentures ............................................... 209
ARTICLE XVIII.
MISCELLANEOUS
SEC. 18.01 -- Limitation of rights hereunder ............................. 209
SEC. 18.02 -- Investment of cash by Trustee in certain securities ........ 209
Such securities held by Trustee as part of mortgaged
and pledged property ..................................... 210
</TABLE>
<PAGE> 12
xi
<TABLE>
<CAPTION>
PAGE
<S> <C>
SEC. 18.03 -- Deposit with Trustee of funds to pay bonds and
coupons .................................................. 210
SEC. 18.04 -- Successors and assigns ..................................... 211
SEC. 18.05 -- Trust Indenture Act requirements control ................... 211
SEC. 18.06 -- "Trust Indenture Act of 1939" defined ...................... 211
SEC. 18.07 -- Authority of Trustee to cancel Indenture or release
property from the lien thereof ........................... 211
SEC. 18.08 -- Titles of Articles not part of Indenture ................... 211
SEC. 18.09 -- Execution in counterparts .................................. 212
TESTIMONIUM .............................................................. 212
SIGNATURES AND SEALS ..................................................... 212
ACKNOWLEDGEMENTS ......................................................... 213
</TABLE>
<PAGE> 13
INDENTURE dated as of the first day of July, 1950, made by and between
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing
under and by virtue of the laws of the State of Louisiana (hereinafter
sometimes called the "Company"), party of the first part, and THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS, a national banking association, duly organized and
existing under the laws of the United States of America, and having its
principal office and place of business in the City of New Orleans, Louisiana,
as Trustee (hereinafter called the "Trustee"), party of the second part.
WHEREAS, the Company desires to borrow money from time to time for its
corporate purposes and to issue its bonds therefor, and to mortgage and pledge
its property, hereinafter described, or mentioned, to secure the payment of
said bonds, and to that end has duly authorized the issue of its bonds, from
time to time, limited to $100,000,000 principal amount, at any one time
outstanding, to be designated generally as its "First Mortgage Bonds", to be
issued in one or more series, the bonds of each series to be issuable either as
coupon bonds registerable as to principal or as registered bonds without
coupons, or both, all such bonds to be authenticated by the certificate of the
Trustee, the bonds of such series to bear such date or dates, to mature on such
date or dates, to bear interest at such rate or rates and to contain such other
terms and provisions as are required or permitted by this Indenture; and
WHEREAS, the bonds of the initial series, to be designated as First
Mortgage Bonds, Series A, 3% (hereinafter referred to as the "bonds of Series
A"), the interest coupons to be attached to the coupon bonds of Series A, and
the Trustee's certificate of authentication to be endorsed on the bonds of all
series, are to be substantially in the forms following respectively:
<PAGE> 14
2
[FORM OF COUPON BOND OF SERIES A]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
FIRST MORTGAGE BOND, SERIES A, 3%
Due July 1, 1980
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
holder hereof, on July 1, 1980, at the office or agency of the Company in the
City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, and to pay interest thereon
semi-annually on January 1 and July 1 of each year at the rate of three per
centum (3%) per annum at such office or agency in like coin or currency, from
July 1, 1950, until this bond shall mature, according to its terms or on prior
redemption or by declaration or otherwise, but only upon presentation and
surrender of the coupons for such interest installments as are evidenced
thereby, hereto appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance with the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (herein called the "Indenture") dated as of July 1, 1950,
executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as
Trustee (hereinafter called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in
<PAGE> 15
3
respect of such security, the rights, duties and immunities of the Trustee, and
the terms and conditions upon which the bonds are, and are to be, secured. As
provided in the Indenture, the bonds may be issued in series for various
principal sums, may bear different dates and mature at different times, may
bear interest at different rates and may otherwise vary as in the Indenture
provided or permitted. This bond is one of the bonds described in the Indenture
and designated therein as "First Mortgage Bonds, Series A, 3%" (hereinafter
referred to as the "bonds of Series A").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time
of payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any
bond, without the consent of the holder of each bond so affected, or (ii)
reduce the percentage of bonds, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all
bonds then outstanding, or (iii) permit the creation of any lien ranking prior
to or equal with the lien of the Indenture on any of the mortgaged and pledged
property without the consent of the holders of all bonds then outstanding, or
(iv) deprive the holder of any outstanding bond of the lien of the Indenture on
any of the mortgaged and pledged property without the consent of the holder of
each bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided
<PAGE> 16
4
in the Indenture) shall be conclusive and binding upon such holder and upon all
future holders of this bond, irrespective of whether or not any notation of
such consent is made upon this bond. No reference herein to the Indenture and
no provision of this bond or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay at the
stated or accelerated maturity herein and in the Indenture provided, the
principal of and interest and premium, if any, on this bond at the time and
place and at the rate and in the coin or currency herein prescribed.
The coupon bonds of Series A are issuable in the denominations of
$1,000. The registered bonds without coupons of Series A are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series A are entitled to the benefit of the Sinking Fund
provided for in Section 6.01 of the Indenture.
The bonds of Series A may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in said City of New Orleans, the first publication to be not less
than thirty (30) days and not more than sixty (60) days before such redemption
date (provided, however, that if all the bonds of Series A
<PAGE> 17
5
at the time outstanding shall be registered bonds without coupons or coupon
bonds registered as to principal, such publication need not be made, but, in
lieu thereof, such notice may be given by mailing the same to each registered
holder of a bond so to be redeemed directed to his registered address not less
than thirty (30) days and not more than sixty (60) days before the redemption
date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series A, provided for in Section 6.01 of the Indenture or moneys in the
Depreciation Fund provided for in Section 5.07 of the Indenture or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or other
governmental subdivision or governmental body or public authority, the bonds of
Series A are redeemable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for public and private
debts, at the redemption price at the time applicable, as set forth in Column A
of the following schedule, and if redeemed otherwise than by the application of
such moneys, the bonds of Series A are redeemable in like coin or currency, at
the redemption price at the time applicable, as set forth in Column B of the
following schedule, together with, in each case, interest accrued to the date
fixed for redemption:
<TABLE>
<CAPTION>
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
<S> <C> <C>
July 1, 1950---June 30, 1951......... 100.50 103.50
July 1, 1951---June 30, 1952......... 100.50 103.38
July 1, 1952---June 30, 1953......... 100.50 103.27
July 1, 1953---June 30, 1954......... 100.50 103.15
July 1, 1954---June 30, 1955......... 100.50 103.03
July 1, 1955---June 30, 1956......... 100.50 102.92
July 1, 1956---June 30, 1957......... 100.50 102.80
July 1, 1957---June 30, 1958......... 100.50 102.68
July 1, 1958---June 30, 1959......... 100.49 102.57
July 1, 1959---June 30, 1960......... 100.47 102.45
</TABLE>
<PAGE> 18
6
<TABLE>
<CAPTION>
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
<S> <C> <C>
July 1, 1960---June 30, 1961........ 100.46 102.33
July 1, 1961---June 30, 1962........ 100.44 102.22
July 1, 1962---June 30, 1963........ 100.42 102.10
July 1, 1963---June 30, 1964........ 100.40 101.98
July 1, 1964---June 30, 1965........ 100.39 101.87
July 1, 1965---June 30, 1966........ 100.37 101.75
July 1, 1966---June 30, 1967........ 100.35 101.63
July 1, 1967---June 30, 1968........ 100.33 101.52
July 1, 1968---June 30, 1969........ 100.31 101.40
July 1, 1969---June 30, 1970........ 100.29 101.28
July 1, 1970---June 30, 1971........ 100.26 101.17
July 1, 1971---June 30, 1972........ 100.24 101.05
July 1, 1972---June 30, 1973........ 100.22 100.93
July 1, 1973---June 30, 1974........ 100.19 100.82
July 1, 1974---June 30, 1975........ 100.17 100.70
July 1, 1975---June 30, 1976........ 100.14 100.58
July 1, 1976---June 30, 1977........ 100.12 100.47
July 1, 1977---June 30, 1978........ 100.09 100.35
July 1, 1978---June 30, 1979........ 100.06 100.23
July 1, 1979---June 30, 1980........ 100.03 100.12
</TABLE>
If this bond is called for redemption and payment hereof is duly provided for
as specified in the Indenture, interest shall cease to accrue hereon from and
after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all
of the bonds of any series, or such of the bonds of any series as have been or
are to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
<PAGE> 19
7
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in the principal amount of the
bonds outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered
as to principal at the office or agency of the Company in said City of New
Orleans, and such registration noted hereon, after which no valid transfer
hereof can be made, except at such office or agency, until after registered
transfer to bearer, but after such registered transfer to bearer this bond
shall be again transferable by delivery. Such registration, however, shall not
affect the negotiability of the coupons, which shall always remain payable to
bearer, be treated as negotiable and pass by delivery. The Company and the
Trustee, any paying agent and any bond registrar may deem and treat the bearer
of this bond if it is not registered as to principal, or, if this bond is
registered as herein authorized, the person in whose name this bond is
registered, as the absolute owner hereof, and the bearer of any coupon hereunto
appertaining, as the absolute owner thereof, whether or not this bond or such
coupon shall be overdue, for the purpose of receiving payment and for all other
purposes and neither the Company nor the Trustee nor any paying agent nor any
bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment
or otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
<PAGE> 20
8
Neither this bond nor the coupons hereto attached shall become valid
or obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS, the Trustee under the Indenture, or its successor thereunder, shall
have signed the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has
caused this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
interest coupons bearing the facsimile signature of its Treasurer to be
attached hereto, and this bond to be dated July 1, 1950.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series A)
$15.00
On the first day of , 19 , unless the bond hereinafter mentioned
shall have been called for previous redemption and payment of the redemption
price thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC
COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its office
or agency in the City of New Orleans, Louisiana, Fifteen Dollars in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, being six months' interest then due
on its First Mortgage Bond, Series A, 3%, No.
Treasurer.
<PAGE> 21
9
[FORM OF REGISTERED BOND OF SERIES A]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series A, 3%
Due July 1, 1980
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to or registered assigns on July 1, 1980, at the office or agency of the
Company in the City of New Orleans, Louisiana, ($ ) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, and to pay interest thereon
semi-annually on January 1 and July 1 of each year, at the rate of three per
centum (3%) per annum, at such office or agency, in like coin or currency, from
the interest payment date next preceding the date of this bond, or if this bond
be dated prior to January 1, 1951 then from July 1, 1950, until this bond shall
mature, according to its terms or on prior redemption or by declaration or
otherwise.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance with the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (herein called the "Indenture") dated as of July 1, 1950,
executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as
Trustee (hereinafter called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and im-
<PAGE> 22
10
munities of the Trustee, and the terms and conditions upon which the bonds are,
and are to be, secured. As provided in the Indenture, the bonds may be issued
in series for various principal sums, may bear different dates and mature at
different times, may bear interest at different rates and may otherwise vary as
in the Indenture provided or permitted. This bond is one of the bonds
described in the Indenture and designated therein as "First Mortgage Bonds,
Series A, 3%" (hereinafter referred to as the "bonds of Series A").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any outstanding bond of the lien of the Indenture on any
of the mortgaged and pledged property without the consent of the holder of each
bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future
<PAGE> 23
11
holders of this bond, irrespective of whether or not any notation of such
consent is made upon this bond. No reference herein to the Indenture and no
provision of this bond or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the Indenture provided, the principal of and
interest and premium, if any, on this bond at the time and place and at the
rate and in the coin or currency herein prescribed.
The coupon bonds of Series A are issuable in the denominations of
$1,000. The registered bonds without coupons of Series A are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series A are entitled to the benefit of the Sinking Fund
provided for in Section 6.01 of the Indenture.
The bonds of Series A may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in said City of New Orleans, the first publication to be not less
than thirty (30) days and not more than sixty (60) days before such redemption
date (provided, however, that if all the bonds of Series A at the time
outstanding shall be registered bonds
<PAGE> 24
12
without coupons or coupon bonds registered as to principal, such publication
need not be made, but, in lieu thereof, such notice may be given by mailing the
same to each registered holder of a bond so to be redeemed directed to his
registered address not less than thirty (30) days and not more than sixty (60)
days before the redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series A, provided for in Section 6.01 of the Indenture or moneys in the
Depreciation Fund provided for in Section 5.07 of the Indenture or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or other
governmental subdivision or governmental body or public authority, the bonds of
Series A are redeemable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for public and private
debts, at the redemption price at the time applicable, as set forth in Column A
of the following schedule, and if redeemed otherwise than by the application of
such moneys, the bonds of Series A are redeemable in like coin or currency, at
the redemption price at the time applicable, as set forth in Column B of the
following schedule, together with, in each case, interest accrued to the date
fixed for redemption:
<TABLE>
<CAPTION>
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
<S> <C> <C>
July 1, 1950---June 30, 1951 100.50 103.50
July 1, 1951---June 30, 1952 100.50 103.38
July 1, 1952---June 30, 1953 100.50 103.27
July 1, 1953---June 30, 1954 100.50 103.15
July 1, 1954---June 30, 1955 100.50 103.03
July 1, 1955---June 30, 1956 100.50 102.92
July 1, 1956---June 30, 1957 100.50 102.80
July 1, 1957---June 30, 1958 100.50 102.68
July 1, 1958---June 30, 1959 100.49 102.57
July 1, 1959---June 30, 1960 100.47 102.45
July 1, 1960---June 30, 1961 100.46 102.33
</TABLE>
<PAGE> 25
13
<TABLE>
<CAPTION>
Redemption Price
Table A Table B
If redeemed during the period: (Percentage of Principal Amount)
<S> <C> <C>
July 1, 1961---June 30, 1962 100.44 102.22
July 1, 1962---June 30, 1963 100.42 102.10
July 1, 1963---June 30, 1964 100.40 101.98
July 1, 1964---June 30, 1965 100.39 101.87
July 1, 1965---June 30, 1966 100.37 101.75
July 1, 1966---June 30, 1967 100.35 101.63
July 1, 1967---June 30, 1968 100.33 101.52
July 1, 1968---June 30, 1969 100.31 101.40
July 1, 1969---June 30, 1970 100.29 101.28
July 1, 1970---June 30, 1971 100.26 101.17
July 1, 1971---June 30, 1972 100.24 101.05
July 1, 1972---June 30, 1973 100.22 100.93
July 1, 1973---June 30, 1974 100.19 100.82
July 1, 1974---June 30, 1975 100.17 100.70
July i, 1975---June 30, 1976 100.14 100.58
July I, 1976---June 30, 1977 100.12 100.47
July 1, 1977---June 30, 1978 100.09 100.35
July 1, 1978---June 30, 1979 100.06 100.23
July 1, 1979---June 30, 1980 100.03 100.12
</TABLE>
If this bond is called for redemption and payment hereof is duly
provided for as specified in the Indenture, interest shall cease to accrue
hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all
of the bonds of any series, or such of the bonds of any series as have been or
are to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
<PAGE> 26
14
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in the principal amount of the
bonds outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in said City of New Orleans, upon surrender and
cancellation of this bond, and upon payment, if the Company shall require it,
of the transfer charges prescribed in the Indenture, and thereupon, a new
registered bond or bonds without coupons of authorized denominations of the
same series and for the same aggregate principal amount will be issued to the
transferee in exchange herefor as provided in the Indenture. The Company and
the Trustee, any paying agent and any bond registrar may deem and treat the
person in whose name this bond is registered as the absolute owner hereof,
whether or not this bond shall be overdue, for the purpose of receiving payment
and for all other purposes and neither the Company nor the Trustee nor any
paying agent nor any bond registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the
<PAGE> 27
15
Trustee under the Indenture, or its successor thereunder, shall have signed the
certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
this bond to be dated , 19 .
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE--
ON BONDS OF ALL SERIES]
Trustee's Authentication Certificate
This bond is one of the bonds, of the series herein designated,
provided for in the within-mentioned Indenture.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee,
By
Authorized Officer.
and
WHEREAS, the bonds of series other than Series A and the coupons to be
attached to such thereof as may be coupon bonds are to be substantially in the
forms respectively hereinabove set forth for the bonds of Series A but with
such omissions, insertions and variations as may be authorized or permitted by
this Indenture, such forms to be determined by the Board of Directors of the
Company; and
<PAGE> 28
16
WHEREAS, all things necessary to make said bonds, when duly executed
by the Company and authenticated and delivered by the Trustee and issued, the
valid, binding and legal obligations of the Company, and to make this Indenture
a valid, binding and legal instrument for the security of the bonds and coupons
to be issued hereunder, in accordance with their terms, have been done and
performed, and the issue of said bonds, as in this Indenture provided, has been
in all respects duly authorized;
Now, THEREFORE, THIS INDENTURE WITNESSETH; That CENTRAL LOUISIANA
ELECTRIC COMPANY, INC., in consideration of the premises and of the acceptance
by the Trustee of the trusts hereby created and of the purchase and acceptance
of the bonds by the holders thereof and of one dollar to it duly paid by the
Trustee at or before the ensealing and delivery of these presents, the receipt
whereof is hereby acknowledged, and in order to secure the payment of both the
principal of and interest and premium, if any, on the bonds from time to time
issued hereunder, according to their tenor and effect, and the performance and
observance of all the provisions hereof (including any indenture supplemental
hereto and any modification or alteration hereof made as herein provided) and
of said bonds, hath granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged,
set over and confirmed, and by these presents doth grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, hypothecate, affect,
pledge, set over and confirm unto THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee, and to its successors in the trust hereby created and to its and
their assigns forever, all the following described properties of the Company,
that is to say:
All property, real, personal and mixed, tangible and intangible. owned
by the Company on the date of the execution hereof or which may be hereafter
acquired by it (except such property as is hereinafter expressly excepted from
the lien and operation of this Indenture).
The property, covered by the lien of this Indenture shall include
particularly, among other property, without prejudice to the generality of the
language hereinbefore or hereinafter contained, the following described
property:
<PAGE> 29
17
I.
IN THE PARISH OF AVOYELLES.
1. A certain tract or parcel of land situated within the corporate
limits of the Town of Bunkie, Avoyelles Parish, Louisiana, containing three (3)
acres, together with all buildings and improvements thereon and all rights,
ways, privileges, servitudes and advantages thereto belonging or in anywise
appertaining, further described as follows, to-wit: From the Southwest corner
of the tract herein described, termed point of beginning, one and one-half (1
1/2") inch gas pipe on the east right of way line of the Texas and Pacific
Right of Way, a point 50 feet from said center line, thence along the right of
way of Texas and Pacific Railway in a southeast direction five hundred
thirty-six and five-tenths (536.5) feet to a point, and 1 1/2" gas pipe; thence
at right angles to said Texas and Pacific right of way three hundred eleven and
eighty-five hundredths (311.85) feet to the center line of Bayou Hoffpauer a
point referenced by a gas pipe 1 1/2" in diameter, thence down the center line
of Bayou Hoffpauer five hundred fifty-three and forty-five hundredths (553.45)
feet to the northwest corner of the lot herein described, thence on a line at
right angles to the Texas and Pacific right of way one hundred seventy-five and
four tenths (175.4) feet to the point of beginning, and is bounded as follows,
to-wit: On the North, East, and South by lands of the Haas Land Company, and on
the West by right of way of the Texas and Pacific Railway Company, and is the
same property acquired by the Louisiana Ice and Utilities Company, Inc. from
W. D. Haas and C. J. Pope by act dated May 12, 1926, and forms the same property
as described in Article I in said sale which is of record in Alienation Book
A-38, folio 229 of the records of Avoyelles, as evidenced by act passed before
John McSween, Notary Public, and the same property acquired by the Bunkie Ice
Co. Ltd., from Samuel and W. D. Haas by virtue of an act dated July 29, 1904,
before A. B. West, Notary Public, by deed recorded in Book C-1, folio 645, of
the records of the Parish of Avoyelles, Louisiana; acquired by Louisiana Ice &
Electric Company, Inc., from Louisiana Ice & Utilities, Inc., Bankrupt, and
Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935, recorded
in Conveyance Book A-65, folio 16, Records of Avoyelles Parish, Louisiana.
<PAGE> 30
18
2. A certain tract or parcel of land, situated within the corporate
limits of the Town of Bunkie, Avoyelles Parish, Louisiana, containing 2.369
acres, together with all buildings and improvements thereon and all rights,
ways, privileges, servitudes and advantages thereto belonging or in anywise
appertaining, further described as follows:
Beginning at a point in the middle of Bayou Huffpower and
going Northeast 260.61 feet on Call 114.19 to a 1 1/4 inch iron pipe
with cap; thence at 90 degrees in a Southeasterly direction 536.50
feet to a point marked with a 1 1/4 inch iron pipe with cap; thence at
90 degrees in & Southwesterly direction 124.16 feet to the middle of
Bayou Huffpower; thence in a Westerly direction on Call 553.45 feet to
the point of beginning; all as is more particularly shown by plat made
by Max M. Merrick, Registered Engineer of Marksville, Louisiana, dated
January 31, 1941, for Louisiana Ice & Electric Company; of which said
tract .369 acres lies in Bayou Huffpower, leaving 2.00 acres lying
North of Bayou Huffpower, said tract lying Northeast of the present
Louisiana Ice & Electric Company plant and adjoining the same, and
being bounded as follows: North by Haas Investment Company, Inc., East
by Haas Investment Company, Inc., South by Louisiana Ice & Electric
Company, and West by the Bank of Kentucky, in Liquidation.
Being that property acquired by Louisiana Ice & Electric Company,
Inc., from The Haas Investment Company, Inc., by deed dated February 28, 1941,
recorded in Conveyance Book A-103, page 342, records of Avoyelles Parish,
Louisiana.
3. A certain tract of land situated in the Town of Mansura, Avoyelles
Parish, Louisiana, being in the southeast portion of Lot No. Twelve (12) of the
succession of Fereol Regard, deceased, recorded in Book A-3, folio 404, of the
office of the recorder of said Parish of Avoyelles, and more particularly
described as beginning at the northeast corner of the tract herein described,
which is corner "A" marked by an iron stake between the property of Mrs. Eliza
Regard, widow of Thomas A. Roy, and the tract herein described; thence south 2
degrees 30 minutes east 126.50 feet to Corner "D" marked by an iron stake 125
feet from center line of main track of the
<PAGE> 31
19
Louisiana Railway & Navigation Company; thence north 81 degrees 15 minutes west
118 feet to an iron stake; thence north 9 degrees west 72.10 feet to an iron
stake; thence 72 degrees east to point of beginning, which tract herein
described is bounded on the north and east by land of the said Mrs. Eliza
Regard, widow of Thomas A. Roy, and on the south by the right of way of said
Louisiana Railway & Navigation Company, and on the west by a street; and which
tract herein described is shown on plat of E. B. Messick, Surveyor, annexed to
the act of sale from the said Mrs. Eliza Regard, widow of Thomas A. Roy, to
said Town of Mansura, executed April 27, 1925, before Jules A. Escude, Notary
Public, and recorded in Conveyance Book A-33, page 417, of the office of the
Recorder of said Parish of Avoyelles; acquired by Louisiana Ice & Utilities,
Inc., from the Town of Mansura by deed dated October 26, 1926, recorded in
Conveyance Book A-40, page 59, Records of Avoyelles Parish, Louisiana, and by
Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc.,
Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2,
1935, recorded in Conveyance Book A-65, folio 16, Records of Avoyelles Parish,
Louisiana.
4. That certain 4 1/2 inch O D 5.97 lb. per foot gas pipe line,
beginning at Station No. VCS 8660 + 56, Mile Post 164.03, on the West side of
the right of way of the Texas & Pacific main line railroad in Section 46,
Township 1 South, Range 2 East, crossing said right of way to the East side
thereof and extending in a Southeasterly direction to the generating plant of
Central Louisiana Electric Company, Inc., in the Town of Bunkie, Louisiana, a
distance of approximately one and one-half (1 1/2) miles, together with all
valves, fittings and measuring equipment thereto belonging or appertaining, and
all rights of way owned and held by Central Louisiana Electric Company, Inc.,
in the Parish of Avoyelles, Louisiana, appertaining to said pipe line and its
operation, which grants of rights of way are recorded in the Conveyance Records
of Avoyelles Parish, Louisiana.
5. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Cottonport, Louisiana, to Central Louisiana Electric
Company, Inc., its successors and assigns, by ordinance
<PAGE> 32
20
adopted by the Mayor and Board of Aldermen of said Town at its meeting held on
March 4, 1946, recorded in Conveyance Book A-120, records of Avoyelles Parish,
Louisiana.
6. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Moreauville, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on June 5, 1945,
recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
7. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Plaucheville, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on June 4, 1945,
recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
8. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Simmesport, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on May 11, 1945,
recorded in Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
9. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Evergreen, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on April 20, 1945,
recorded in Conveyance Book A-117, records of Avoyelles Parish, Louisiana.
10. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Mansura, Louisiana, to Louisiana Ice & Electric Company,
its successors and assigns, by ordinance adopted by the Mayor and Board of
Aldermen of said Town at its meeting held on May 9, 1945, recorded in
Conveyance Book A-120, records of Avoyelles Parish, Louisiana.
<PAGE> 33
21
11. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Avoyelles Parish, Louisiana, to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, under and along
all State Highways in the Parish of Avoyelles, Louisiana, by ordinance adopted
at its meeting held on May 9, 1945, recorded in Conveyance Book A-117, records
of Avoyelles Parish, Louisiana.
12. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Avoyelles Parish, Louisiana, to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, under and along
all Parish Roads in the Parish of Avoyelles, Louisiana, by ordinance adopted at
its meeting held on May 9, 1945, recorded in Conveyance Book A-117, records of
Avoyelles Parish, Louisiana.
13. That certain twenty year non-exclusive franchise or permit granted
by the Town of Bunkie, Louisiana, to Louisiana Ice & Electric Company, Inc.,
its successors and assigns, by ordinance adopted by the Mayor and Board of
Aldermen of said Town at its meeting held on July 5, 1938, filed and recorded
September 2, 1938, in Conveyance Book A-88, page 168, records of Avoyelles
Parish, Louisiana, amended and extended to December 3, 1966, by ordinance
adopted by the Mayor and Board of Aldermen of said Town on December 3, 1946,
filed and recorded on January 27, 1947, in Conveyance Book 127, page 11,
records of Avoyelles Parish, Louisiana.
IN THE PARISH OF EVANGELINE.
1. Two certain lots of ground, together with all buildings and
improvements thereon, rights, ways, privileges and appurtenances thereto
belonging, situated in the Town of Ville Platte, Parish of Evangeline, State of
Louisiana, and being Lots Twelve (12) and Thirteen (13) of Block Thirty-two
(32) of the Haas Addition to said Town of Ville Platte, said lots having a
front of fifty (50) feet each on West Railroad Avenue and running back between
parallel lines the distance of fifty (50) feet each to the right of way of the
Texas & Pacific Railway Company, bounded North by Lot 11 of said Block
<PAGE> 34
22
32, East by Right of Way of the Texas & Pacific Railway Company, West by West
Railroad Avenue and South by Lot 14 of said Block 32; acquired by Louisiana Ice
& Utilities, Inc., from the Town of Ville Platte, Louisiana, by deed dated
March 16, 1927, recorded in Conveyance Book B-13, page 135, Records of
Evangeline Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc.,
from Louisiana Ice & Utilities, Inc., Bankrupt, and Frank C. Landers, Trustee
in Bankruptcy, by act dated January 2, 1935, recorded in Conveyance Book B-30,
page 170, Records of Evangeline Parish, Louisiana.
2. Two (2) certain lots of ground, together with all buildings and
improvements thereon, rights, ways and privileges thereto belonging, situated
in the Town of Ville Platte, Evangeline Parish, Louisiana, and being Lots
Fourteen (14) and Fifteen (15) of Block No. Thirty-two (32) of the Haas
Addition to said Town of Ville Platte, said lots having a front of fifty (50)
feet each on West Railroad Avenue and running back between parallel lines a
distance of fifty (50) feet to the right of way of the Texas & Pacific Railway
Company in the rear, bounded North by Lot Thirteen (13) of said Block
Thirty-two (32), East by the right of way of the Texas & Pacific Railway
Company, West by West Railroad Avenue, and South by Lot Sixteen (16) of said
Block Thirty-two (32) of said Haas Addition, all as shown on the official plat
of said Haas Addition on file in the office of the Clerk of Court and
Ex-Officio Register of Conveyances of said Parish. Acquired by Louisiana Ice &
Utilities, Inc., from J. Hugo Dore by deed dated March 19, 1927, recorded in
Conveyance Book B-13, page 168, Records of Evangeline Parish, Louisiana, and by
Louisiana Ice & Electric Company, Inc., from Louisiana Ice & Utilities, Inc.,
Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2,
1935, recorded in Conveyance Book B-30, page 170, Records of Evangeline Parish,
Louisiana.
3. A certain parcel of ground, situated in the Town of Ville Platte,
Evangeline Parish, Louisiana, being described as the extreme Northwest corner
of Lot Six (6) of Young's Addition to the Town of Ville Platte, measuring
twenty-five (25) feet front along Second North Street by a depth of fifty (50')
feet, running South and North; bounded North by Second North Street, South and
East by property
<PAGE> 35
23
now or formerly owned by Clarence A. Soileau, and West by property now or
formerly owned by Z. T. Young; acquired by Louisiana Ice & Utilities, Inc.,
from Clarence A. Soileau by deed recorded in Conveyance Book B-23, page 56,
Records of Evangeline Parish, Louisiana, and by Louisiana Ice & Electric
Company, Inc., by deed dated January 2, 1935, recorded in Conveyance Book B-30,
page 170, Records of Evangeline Parish, Louisiana.
4. A certain parcel of ground, situated in the Town of Ville Platte,
Evangeline Parish, Louisiana, measuring twenty-five (25') feet front by fifty
(50') feet deep, being a portion of Lot 7 of Block Two (2) of Z. T. Young's
Addition to the Town of Ville Platte, being bounded on the North by Second
North Street, on the South and West by property now or formerly belonging to
Willie J. Eastin, and East by property of Louisiana Ice & Electric Co., Inc.,
in Lot 6 of said Addition. Acquired by Louisiana Ice & Electric Co., Inc., from
Willie J. Eastin by deed dated April 14, 1936, recorded in Conveyance Book
B-34, page 78, Records of Evangeline Parish, Louisiana.
5. Four certain lots or parcels of ground, together with all rights,
ways, privileges and appurtenances thereto belonging or appertaining, situated
in Lot No. 3 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian,
in the Parish of Evangeline, State of Louisiana, being those parcels of land
designated and shown as Lots Nos. 2, 3, 4, 5 and "A" on plat of survey made by
Edward B. Messick, Avoyelles Parish Surveyor, on January 30, 1945, which plat
is of record in Plat Book 1, page 267, records of Evangeline Parish, Louisiana,
and to which reference is made for greater certainty of description, said
property being further and more particularly described as follows:
Begin at an iron post set on the Bank of Bayou Cocodrie, which
point of beginning is marked (1) on the above mentioned plat of
survey, and from which point bears a cypress tree 48 inches in
diameter North 19 degrees West 13 1/2 feet, and from said point of
beginning run North 82 degrees 15 minutes East along the Bank of Bayou
Cocodrie 244.7 feet; thence North 87 degrees 30 minutes East along the
Bank of Bayou Cocodrie 141 feet; thence South 64 degrees East along
the bank of Bayou
<PAGE> 36
24
Cocodrie 93 feet; thence South 44 degrees East along the bank of Bayou
Cocodrie 110 feet; thence South 6 degrees 30 minutes West along the
Bank of Bayou Cocodrie 163 feet; thence South 33 degrees East along the
bank of Bayou Cocodrie 77 feet; thence South 86 degrees 30 minutes East
along the Bank of Bayou Cocodrie 49.5 feet; thence South 12 degrees
East along the bank of Bayou Cocodrie 321.4 feet; thence South 36
degrees East along the Bank of Bayou Cocodrie 166.98 feet to an iron
post marked (4) on the above mentioned plat of survey; thence West
741.18 feet to an iron post marked (3) on the above mentioned plat of
survey; thence North 1 degree East 487.08 feet to an iron post marked
(2) on the above mentioned plat of survey; thence North 1 degree East
262.7 feet more or less to the iron post at the point of beginning on
the bank of Bayou Cocodrie, which said iron post is marked (1) on the
above mentioned plat of survey; said property containing a total area
of 9.75 acres including .49 of an acre lying within the right-of-way of
the gravel highway running through said property, or a net area of 9.26
acres; bounded on the North and East by Bayou Cocodrie and on the South
and West by property of Hugh H. Hazelton.
Being that property acquired by Louisiana Ice & Electric Company, Inc.
from Leonce L. Dossman, Wallace J. Gomez, et al, Hugh H. Hazelton, and Robert
T. Janet, et al, by deeds dated May 22nd and June 6th, 1945, recorded in
Conveyance Book B-74, pages 197, 199, 201 and 283, records of Evangeline
Parish, Louisiana; and by Central Louisiana Electric Company, Inc. from Peach
Camp No. 567, Woodmen of the World, by deed dated September 28, 1945, recorded
in Conveyance Book B-75, page 601, records of Evangeline Parish, Louisiana.
6. A certain piece, parcel or tract of land, together with all rights,
ways, privileges and appurtenances thereto belonging or appertaining, situated
in Lot No. Three (3) or the NW 1/4 of the NW 1/4 of Section 35, Township 2
South, Range 2 East, Louisiana Meridian, in the Parish of Evangeline, State of
Louisiana, and being more particularly described as follows, to-wit:
<PAGE> 37
25
Begin at an iron post set on the West bank of Bayou Cocodrie,
which post marks the Southeast corner of the 6.53 acre tract purchased
by Louisiana Ice & Electric Company, Inc. from Hugh H. Hazelton by
deed dated May 22, 1945, as shown by plat of survey made by Edward B.
Messick, Avoyelles Parish Surveyor, on January 30, 1945, duly of
record in the plat records of Evangeline Parish, Louisiana, and from
said point of beginning run West 741.18 feet to an iron post; thence
run South 1 degree West 150 feet to an iron post; thence run East
817.21 feet to an iron post set on the West Bank of Bayou Cocodrie;
thence run in a Northwesterly direction along the West Bank of Bayou
Cocodrie to the point of beginning; all as is more particularly shown
by plat of survey attached to and made part of deed from Hugh H.
Hazelton to Central Louisiana Electric Company, Inc., dated Nov.12,
1947, recorded in Conveyance Record B-91, page 222, Records of
Evangeline Parish, Louisiana; said parcel of land being bounded North
by property purchased by Louisiana Ice & Electric Company (now Central
Louisiana Electric Company, Inc.) from Hugh H. Hazelton by deed dated
May 22, 1945, East by Bayou Cocodrie, and South and West by property
of Hugh H. Hazelton.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Hugh H. Hazelton by deed dated November 12, 1947, recorded in
Conveyance Record B-91, page 222, Records of Evangeline Parish, Louisiana.
7. A certain piece, parcel, or tract of land lying and being situated
in the Town of Ville Platte, Evangeline Parish, Louisiana, more particularly
described as follows:
Beginning at the intersection of the westerly line of Second
North (now East LaSalle) Street, and the northerly line of North East
Railroad Avenue, which point is also the east corner of a 5' x 150'
tract of land described as Tract 5b in deed to The Texas and Pacific
Railway Company from the Louisiana Central Land and Improvement
Company, Limited, dated December 19, 1919, recorded in Conveyance Book
A-11-226 et seq. of the Conveyance
<PAGE> 38
26
Records of Evangeline Parish, Louisiana; thence southwesterly,
along the north line of North East Railroad Avenue, 50 feet to a
point; thence northwesterly, perpendicular to the north line of North
East Railroad Avenue, 34 feet to a point; thence northeasterly,
parallel to the north line of North East Railroad Avenue, 50 feet to a
point in the westerly line of Second North (now East LaSalle) Street;
thence southeasterly, along the westerly line of Second North (now
East LaSalle) Street, 34 feet, more or less, to the place of
beginning.
Being that property acquired by Central Louisiana Electric Company,
Inc., from The Texas and Pacific Railway Company by act of Exchange dated
October 31, 1946, recorded in Conveyance Record B-84, page 195, Records of
Evangeline Parish, Louisiana.
8. A certain lot of ground situated in the Town of Ville Platte,
Evangeline Parish, Louisiana, together with all rights, ways, privileges and
appurtenances thereto belonging or appertaining, being Lot Nine (9) of Block
Four (4) of the V. L. Dupuis Subdivision to said Town of Ville Platte,
measuring 43.6 feet front on Reed Street by a depth running East of 158 feet,
bounded North by Lot 8 of said Block 4, South of Drainage Canal, East by Lot 10
of said Block 4, and West by Reed Street; all as is more fully shown by plat of
said Subdivision filed in Plat Book 1, page 65, Records of Evangeline Parish,
Louisiana.
9. A certain parcel of land situated in Township Four (4) South, Range
Two (2) East, Louisiana Meridian, in the Parish of Evangeline, State of
Louisiana, measuring thirty (30') by thirty feet (30'), and being bounded on
the Northeast, Northwest and Southwest by property of Albert Tate, and on the
Southeast by the black top highway leading from Ville Platte to Tate Cove,
Evangeline Parish; being that property acquired by Central Louisiana Electric
Company, Inc. from Albert Tate by deed dated May 2, 1950, recorded in
Conveyance Book B-105, under filing No.1121345.
10. That certain standard gauge spur railroad track, together with the
twenty-four foot (24 ft.) right-of-way on which the same is
<PAGE> 39
27
constructed, and the roadbed, rails, cross-ties, cattle guards and all other
component parts thereof, beginning at Survey Station 1 + 25 on the right-of-way
of The Texas and Pacific Railway Company in Section 35, Township 2 South, Range
2 East, Southwestern District of Louisiana, Parish of Evangeline, State of
Louisiana, and extending in a Northwesterly direction across said Section 35,
T2SR2E, Evangeline Parish, Louisiana, to the generation plant of Central
Louisiana Electric Company, Inc., in said Section 35, T2SR2E.
Less and excepting, however, that certain gas pipe line laid in the
right-of-way of said railroad spur track and owned by Anchor Gasoline
Corporation.
11. That certain 6 inch 400 pound operating pressure, fuel gas pipe
line extending north from a point in the SE 1/4 of Section 46, Township 3 South,
Range 2 East, Evangeline Parish, Louisiana, through Sections 46, 45, 44, 27,
26, 22, 15, 10, 3 of T3S R2E and Section 35 of T2S R2E, Evangeline Parish,
Louisiana, a distance of 36,985 feet to the Electric Generating Plant of
Central Louisiana Electric Company, Inc. in the NW 1/4 of NW 1/4 of Section 35,
Township 2 South, Range 2 East, Louisiana Meridian, in the Parish of
Evangeline, Louisiana, together with all valves, fittings and measuring
equipment thereto belonging or appertaining, and all rights-of-way owned and
held by Central Louisiana Electric Company, Inc. in the Parish of Evangeline,
Louisiana, in, on, over, upon or through, which said pipe line is laid or
pertaining to said pipe line and its operation, which grants of rights-of-way
are duly recorded in the Conveyance Records of Evangeline Parish, Louisiana.
12. That certain 3 3/4 inch, 125 pound operating pressure, fuel gas
pipe line, extending north from a point in the SW 1/4 of Section 35, Township 2
South, Range 2 East, Evangeline Parish, Louisiana, through Section 35 of T2S,
Evangeline Parish, Louisiana, a distance of 3600 feet to the Electric
Generating Plant of Central Louisiana Electric Company, Inc. in the NW 1/4 of
NW 1/4 of Section 35, Township 2 South, Range 2 East, Louisiana Meridian, in
the parish of Evangeline, Louisiana, together with all valves, fittings and
measuring equipment thereto belonging or appertaining, and all rights-of-way
<PAGE> 40
28
owned and held by Central Louisiana Electric Company, Inc. in the parish of
Evangeline, Louisiana, in, on, over, upon or through, which said pipe line is
laid or pertaining to said pipe line and its operation, which grants of
rights-of-way are duly recorded in the Conveyance Records of Evangeline Parish,
Louisiana.
13. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Evangeline Parish, Louisiana to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, across, along and
under all State Highways in the Parish of Evangeline, Louisiana, by ordinance
adopted at its meeting held on March 12, 1945, recorded in Conveyance Book
B-73, page 599, records of Evangeline Parish, Louisiana.
14. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Evangeline Parish, Louisiana, to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, under and along
all Parish Roads in the Parish of Evangeline, Louisiana, by ordinance adopted
at its meeting held on March 12, 1945, recorded in Conveyance Book B-73, page
601, records of Evangeline Parish, Louisiana.
15. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Ville Platte, Louisiana, to Central Louisiana Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on September 23, 1949,
recorded in Conveyance Book B-102, page 132, records of Evangeline Parish,
Louisiana.
IN THE PARISH OF GRANT.
1. That certain lease granted by the Louisiana Railway & Navigation
Company to J. H. McNeely and the Colfax Cotton Oil Company, Ltd., of date
January 28, 1924, together with all buildings and improvements on said leased
premises and all machinery and equipment therein or thereon, which said leased
premises are more particularly described as being all that part of Block
Sixty-eight (68) of the Town of Colfax, Grant Parish, Louisiana, on the West
side of the Louisiana Railway & Navigation Company's right of way, exclusive of
the fifty
<PAGE> 41
29
(50') foot right of way from the center of the main track; said lease being for
the period of ninety-nine years from date, and recorded in Conveyance Book
"II", page 164, Records of Grant Parish, Louisiana. Acquired by C. A. Tooke and
J. E. Reynolds from Colfax Cotton Oil Company, Ltd., in the name of the Valley
Ice & Power Company, by deeds recorded in Conveyance Book "II", pages 200 and
310, Records of Grant Parish, Louisiana.
2. That certain lease made and executed by J. H. McNeely to C. A.
Tooke and J. E. Reynolds, on the 30th day of January, 1924, together with all
buildings and improvements on said leased premises, and all machinery and
equipment therein or thereon, which said leased premises are more particularly
described as being all that portion of Block Sixty-eight (68) of the Town of
Colfax, Louisiana, lying West of the right of way of the Louisiana Railway &
Navigation Company and South of the line perpendicular to said right of way,
extending from said right of way to Eighth Street and running in such manner as
to coincide with the line of the North wall of the old oil mill building
situated on said block, thus giving this parcel of land the following
approximate dimensions: The distance of the length of the Northern boundary
line as above described being about 102 feet, the Eastern boundary along the
Railroad right of way being 238 feet, the Southern boundary fronting "F" Street
being 140 feet, and the Western boundary fronting Eighth Street being about 220
feet. Also a 30 foot strip off the remainder of said Block extending from
Eighth Street to the right of way above mentioned, North of and adjacent to the
said North wall of the oil mill building; and a 30 foot strip off said block
extending along said right of way from "D" Street to the said building. The two
30 foot strips above mentioned being available for use as means of ingress and
egress to the parcel first above described. Said lease being for the period of
ninety-nine years, beginning January 1, 1924, and recorded in Conveyance Book
"II", page 150, Records of Grant Parish, Louisiana.
Said two leases above described, together with all buildings and
improvements on said leased premises, and all machinery and equipment therein
or thereon, having been acquired by Louisiana Ice & Electric Company, Inc.,
from Louisiana Ice & Utilities Inc., Bankrupt,
<PAGE> 42
30
and Frank C. Landers, Trustee in Bankruptcy, by act dated January 2, 1935,
recorded in Conveyance Book "ZZ", page 606, Records of Grant Parish, Louisiana.
3. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Pollock, Louisiana, to Louisiana Ice & Electric Company,
Inc., its successors and assigns, by ordinance adopted by the Mayor and Board
of Aldermen of said Town of Pollock at its meeting held on May 1, 1945,
recorded in Conveyance Book 82, page 245, records of Grant Parish, Louisiana.
4. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Colfax, Louisiana, to Central Louisiana Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on September 2, 1947,
recorded in Conveyance Book 86, page 621, records of Grant Parish, Louisiana.
5. That certain thirty year non-exclusive franchise or permit granted
by the Police Jury of Grant Parish, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, in, over, under and along all State
Highways in Wards One, Two, Three, Six and Eight of Grant Parish, Louisiana, by
Ordinance No. 31, adopted at its meeting held on November 7, 1938, approved by
the State Highway Engineer on March 25, 1939, recorded in Conveyance Book 61,
page 32, Records of Grant Parish, Louisiana.
6. That certain thirty year non-exclusive franchise granted by the
Police Jury of Grant Parish, Louisiana, to Louisiana Ice & Electric Company,
Inc., its successors and assigns, in, over, under and along all Parish Roads in
Wards One, Two, Three, Six and Eight of Grant Parish, Louisiana, being
Ordinance No. 30 adopted at its meeting held on November 7, 1938, recorded in
Conveyance Book 61, page 31, Records of Grant Parish, Louisiana.
IN THE PARISH OF NATCHITOCHES.
1. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Natchitoches Parish, Louisiana, to
<PAGE> 43
31
Louisiana Ice & Electric Company, Inc., its successors and assigns, in, over,
along and under all Parish roads in the Parish of Natchitoches, Louisiana, by
ordinance adopted at its meeting held on August 22, 1945, recorded in
Conveyance Book 199, page 609, records of Natchitoches Parish, Louisiana.
IN THE PARISH OF RAPIDES.
1. Two (2) certain irregular shaped tracts of land situated in the
Town of Lecompte, Rapides Parish, Louisiana, containing an area of ninety-five
hundredths (.95) of an acre, fully shown by plat of survey made by O. F.
Reiszner, C. E., attached to act of sale from the Town of Lecompte to
Louisiana Ice & Utilities, Inc., dated January 18, 1927, recorded in Conveyance
Book 144, page 258, Records of Rapides Parish, Louisiana, and further described
as follows:
First: Begin at the intersection of the North line of Block Four (4)
of said Town, and the North line of Block Six (6) of said Town,
extended, thence run in an easterly direction along the extended North
line of said Block Six (6) to the right of way of the Texas & Pacific
Railway Company; thence in a Northerly direction along said right of
way to the Northeastern corner of said Block Four (4); thence Westerly
along the North line of Block Four (4) to the point of beginning,
constituting an irregularly shaped strip of ground lying along the
Northern portion of said Block Four (4) as originally laid out and
shown on map of said Town of Lecompte made by W. H. Sylvester, C. E.,
and of record in Plat Book 1, pages 31, 32 and 33 of the Office of the
Recorder of Rapides Parish.
Second: Begin at the Southeast corner of the above described tract,
thence run along the Texas and Pacific Right of Way in a Southerly
direction two Hundred fifty (250) feet to a point; thence Westerly and
parallel to the South line of the above described tract a distance of
seventy-five (75) feet to a point; thence Northerly to a point on the
South line of the above described tract, which last mentioned point is
one hundred (100) feet West of this point of beginning; thence
Easterly along said South line of the above mentioned tract one
hundred (100) feet to the point of beginning.
<PAGE> 44
32
2. A certain piece or parcel of ground situated in the Town of
Lecompte, Rapides Parish, Louisiana, constituting a portion of Lot Two (2) of
the old survey made by R. W. Bringhurst, Surveyor, and constituting the Eastern
portion of what is now designated as Lot Four (4) of Block Eight (8) of said
Town, according to the official map thereof made by W. H. Sylvester, C. E., of
record in Plat Book 1, pages 31 and 32, of the Office of the Recorder of said
Parish of Rapides, the portion of said Lot Four (4) of said Block Eight (8)
referred to herein having a front of fifty (50) feet on Bank Street and running
back between parallel lines a distance of ninety-six (96) feet, being bounded
on the East by Bank Street, on the South by Lot Five (5) of said Block Eight
(8), on the West by the remaining portion of said Lot Four (4), and on the
North by Lot Three (3) of said Block Eight (8).
Being the land conveyed by the Town of Lecompte to Louisiana Ice and
Utilities, Inc., by deed dated January 18, 1927, recorded in Conveyance Book
144, page 258, Records of Rapides Parish, Louisiana, and acquired by Louisiana
Ice & Electric Company, Inc., from said Louisiana Ice & Utilities, Inc.,
Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2,
1935, recorded in Conveyance Book 199, page 273, Records of Rapides Parish,
Louisiana.
3. A certain lot or parcel of ground, together with all buildings and
improvements thereon, rights, ways, privileges and appurtenances thereto
belonging, situated in the Town of Cheneyville, Parish of Rapides, State of
Louisiana, fully shown by plat of survey made by 0. F. Reiszner, C. E., dated
April, 1927, attached to act of sale from the Town of Cheneyville to Louisiana
Ice & Utilities, Inc., dated May 3, 1927, recorded in Conveyance Book 148, page
274, Records of Rapides Parish, Louisiana, and further described as follows:
Beginning at an iron stake at the intersection of the South line of
Front Street and the East line of Robert DeSelle property, said
intersection being 717.3 feet westerly from the West line of Klock
Street, measured along the South line of Front Street; thence
southerly along East line of Deselle property 97.3 feet
<PAGE> 45
33
to an iron stake in the North right of way line of the Texas & Pacific
Railway; thence at an angle of 94 degrees 51 minutes to the right,
along said right of way line 205.25 feet to an iron stake; thence at
an angle of 85 degrees 09 minutes to the right, 97.3 feet to an iron
stake in the South line of Front Street; thence at an angle of 94
degrees 51 minutes to the right, along the South line of Front Street
206.25 feet to point of beginning; and being the identical property
acquired by the Town of Cheneyville from Robert Deselle by deed of
date August 21st, 1925, duly of record in Conveyance Book 134, page
204, records of Rapides Parish, and by the said Deselle from Ernest L.
Klock by deed of date July 12, 1922, duly of record in Conveyance Book
113, page 164, Records of Rapides Parish and by the said Robert
Deselle from Mrs. Christina Johnson, born Klock, by act of sale dated
August 11th, 1922, duly of record in Conveyance Book 114, page 622,
and by the said Ernest L. Klock from the widow and heirs of John C.
Klock by deed of date July 12, 1922, duly of record in Conveyance Book
114, page 510, Records of Rapides Parish, and by the widow and heirs
of John C. Klock from the Succession of John C. Klock by Judgment of
date October 4th, 1921, duly of record in Conveyance Book 111, page
133, Records of Rapides Parish, and by the said John C. Klock,
deceased, from Ralph Kilpatrick and George W. Bennett by deeds of date
May 24th, 1910, and January 10th, 1889, respectively duly of record in
Conveyance Book 53, page 181, and Conveyance Book M, page 652, Records
of Rapides Parish, Louisiana.
Being the land conveyed by the Town of Cheneyville to Louisiana Ice &
Utilities, Inc., by deed dated May 3, 1927, recorded in Conveyance Book 148,
page 274, Records of Rapides Parish, Louisiana, and acquired by Louisiana Ice &
Electric Company, Inc., from said Louisiana Ice & Utilities, Bankrupt, and
Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2, 1935,
recorded in Conveyance Book 199, page 273, Records of Rapides Parish,
Louisiana.
4. A certain lot of ground, together with all rights, ways, privileges
and other appurtenances thereto belonging, in the Parish of
<PAGE> 46
34
Rapides, State of Louisiana, situated on the left descending bank of Bayou
Boeuf, just outside the corporate limits of the Town of Cheneyville, and in the
NE 1/4 of Section 32, Township 1 North, Range 2 East, and more particularly
described as follows, to-wit:
From the northeast corner of Block 28, Kilpatrick Addition to the Town
of Cheneyville, Louisiana, run northerly along the West line of Klock
Street, extended, a distance of 641.2 feet, thence at right angles
easterly a distance of 127.7 feet to an iron stake, the point of
beginning; thence at an angle of 18 degrees 53 minutes to the left, a
distance of 30 feet to an iron stake; thence at right angles,
southerly 20 feet; thence at right angles westerly 30 feet; thence at
right angles northerly 20 feet to the point of beginning, all as is
more fully shown, bounded by red lines, on plat of survey made by O.
F. Reiszner, C. E., of date July 21, 1931.
Being the land conveyed by the Weil Company, Inc., to Louisiana Ice &
Utilities, Inc., by deed dated August 3rd, 1931, recorded in Conveyance Book
180, page 236, Records of Rapides Parish, Louisiana, and acquired by Louisiana
Ice & Electric Company, Inc., from said Louisiana Ice & Utilities, Inc.,
Bankrupt, and Frank C. Landers, Trustee in Bankruptcy, by deed dated January 2,
1935, recorded in Conveyance Book 199, page 273, Records of Rapides Parish,
Louisiana.
5. A certain lot of ground situated in the Town of Pineville, Rapides
Parish, Louisiana, described as:
From an iron pipe marking the intersection of the West line of Main
Street and the South line of the Asylum Road run Westerly along the
South line of the Asylum Road 227.9 feet to an iron stake, the point
of beginning; thence at an angle of 91 degrees 48 minutes to the left
run 57 feet to an iron stake; thence westerly and parallel to Asylum
Road, 69.9 feet to an iron stake; thence at an angle of 87 degrees 50
minutes to the right 57 feet to an iron stake in the South line of
Asylum Road; thence Easterly along the South line of Asylum Road,
70.3 feet to the point of beginning; being the same property shown
within the red lines on plat of survey made by O. F. Reiszner, C. E.,
of date October 7, 1930, attached to act of sale from the Town of
Pineville to C. A. Tooke
<PAGE> 47
35
and J. Edwin Reynolds, dated January 27, 1931, together with all
buildings and improvements thereon, rights, ways, privileges and
appurtenances thereto belonging or appertaining.
6. A certain lot of ground situated in the Town of Pineville, Rapides
Parish Louisiana, described as:
From an iron pipe marking the intersection of the West line of Main
Street and the South line of the Asylum or Hospital Road, run Westerly
along the South line of the Asylum Road 227.9 feet to an iron stake;
thence at an angle of 91 degrees 48 minutes to the left, run 57 feet
to the point of beginning; thence continuing on the last mentioned
course 93 feet to an iron stake; thence Westerly and parallel to the
Asylum Road 69.3 feet to an iron stake; thence at an angle of 87
degrees 50 minutes to the right 93 feet to an iron stake; thence
easterly and parallel to the Asylum Road 69.9 feet to the point of
beginning; all as more fully shown by plat of survey made by O. F.
Reiszner, C. E., dated November 29, 1930, attached to act of sale from
the Town of Pineville to Casper A. Tooke and J. Edwin Reynolds, dated
January 26, 1931, and being the property shown within the yellow lines
on said plat, together with all buildings and improvements thereon and
all rights, ways, privileges and appurtenances thereto belonging or
appertaining.
Acquired by Louisiana Ice & Electric Company, Inc., from Pineville
Electric Company by deed dated November 26, 1935, recorded in Conveyance Book
206, page 319, Records of Rapides Parish, Louisiana.
7. A certain piece, parcel or lot of ground, situated in the Town of
Pineville, Parish of Rapides, State of Louisiana, and being more particularly
described as follows: Beginning at a pipe set at the corner of the Town of
Pineville Power House lot, run easterly along the South line of Asylum Street
68.10 feet to a pipe set for the Northeast corner of the lot transferred by
Flora Smith to the Town of Pineville, thence angle 90 degrees to the right and
run 58 feet to the South line of said Town lot, thence angle 90 degrees to the
right and run
<PAGE> 48
36
68.10 feet to the west line of said lot, thence angle 90 degrees to the right
and run 58 feet to the point of beginning, containing 3957 square feet.
Also that certain tract of land immediately in the rear of the
property above described, measuring 68.10 feet and running back between
parallel lines 30 feet additionally; all as will more fully appear from plat of
survey made by H. J. Daigre, C. E., annexed to deed from Town of Pineville to
Flora Smith, together with all buildings and improvements thereon, and all
rights, ways and privileges thereto belonging or appertaining.
Acquired by Louisiana Ice & Electric Company, Inc., from Succession of
Flora Smith by deed dated July 6, 1940, recorded in Conveyance Book 245, page
639, Records of Rapides Parish, Louisiana.
8. A certain piece, parcel or lot of land, together with all buildings
and improvements thereon, rights, ways, privileges and appurtenances thereto
belonging or in anywise appertaining, lying and being situated on the North
side of Red River, in Section 21, Township 4 North, Range 1 West, in the Town
of Pineville, Rapides Parish, Louisiana, and being more particularly described
as follows:
Lot "B" of Marye Heights Addition to the Town of Pineville, Rapides
Parish, Louisiana, as shown by plat of said Marye Heights Addition
made by Pan-American Engineers dated July 20, 1946, a blue print of
which said plat is recorded in Conveyance Book 329, page 277, records
of Rapides Parish, Louisiana, to which plat reference is made for
greater particularity of description, said lot or parcel of ground
being further described as follows: Start at the Southwest corner of
Section 21, Township 4 North, Range 1 West, and run Northeasterly
along the West line of said Section 21, Township 4 North, Range 1 West
to the point where the North line of Melrose Street intersects the
West line of said Section 21, Township 4 North, Range 1 West, the
point of beginning of the property herein described, and from said
point of beginning so established continue in a Northeasterly
direction along the West line of said Section 21, Township 4 North,
Range 1 West the distance of 326.8 feet to the point where the South
line
<PAGE> 49
37
of Pine Street intersects the West line of said Section 21, Township 4
North, Range 1 West; thence turn at right angles and run Easterly
along the South line of Pine Street the distance of 199.4 feet to the
West right-of-way line of the L. & A. Railroad; thence run in a
Southerly direction along the West line of the right-of-way of the
L. & A. Railroad the distance of 36.2 feet to the point where the North
line of Melrose Street intersects the West line of the right-of-way of
the L. & A. Railroad; thence run in a Southwesterly direction along
the North line of Melrose Street the distance of 373.5 feet to the
point of beginning.
Said property being that enclosed within the red lines on the
hereinabove referred to plat; being that property acquired by Central
Louisiana Electric Company, Inc., from Simon W. Tudor and Robert B.
Tudor by deed dated July 30, 1946, recorded in Conveyance Book 329,
page 277, records of Rapides Parish, Louisiana.
9. A certain piece or parcel of land, together with all rights, ways,
privileges and appurtenances thereto belonging or appertaining, situated in the
Parish of Rapides, State of Louisiana, being a parcel of land 100 feet square,
lying in the Northeast corner of the NE 1/4 of SW 1/4 of Section 35, Township 5
North, Range 1 East, Louisiana Meridian, more particularly described as
follows:
Start at the center of Section 35, Township 5 North, Range 1 East, and
run thence South on the line dividing the SE 1/4 of the SW 1/4 of said
Section the distance of 20 feet to the point of beginning; thence
continue South on the same line the distance of 100 feet; thence turn
at an angle of 90 degrees to the right and run West 100 feet; thence
turn at an angle of 90 degrees to the right and run North 100 feet;
thence turn at an angle of 90 degrees to the right and run East 100
feet to the point of beginning; all as more particularly shown by plat
of survey made by L. J. Daigre, Parish Surveyor, dated May 16, 1945,
attached to deed from Milton A. Johnson, et al, to Louisiana Ice &
Electric Company, dated May 24, 1945, recorded in Conveyance Book 300,
page 16, records of Rapides Parish, Louisiana.
<PAGE> 50
38
Being the land acquired by Louisiana Ice & Electric Company, Inc.,
from Milton A. Johnson, et al., by deed dated May 24, 1945, recorded in
Conveyance Book 300, page 16, records of Rapides Parish, Louisiana.
10. A certain piece or parcel of land, situated in the SW 1/4 of the
SW 1/4 of Section 18, Township 1 North, Range 1 West, in the Parish of Rapides,
State of Louisiana, and being more particularly described as follows:
Start at the Northeast corner of the NW 1/4 of SW 1/4 of Section 18,
Township 1 North, Range 1 West, and run thence West along the line
dividing the NW 1/4 of SW 1/4 and the SW 1/4 of SW 1/4 of said Section
18, 81.9 feet to the East right-of-way line of the Pelican Highway
(Lecompte-Forest Hill Highway); thence run Southwesterly along the
East right-of-way, line of said Pelican Highway the distance of 143.7
feet, the point of beginning of the property herein conveyed; thence
South 62 degrees 30 minutes East 42.6 feet; thence South 37 degrees
West 50 feet; thence South 82 degrees 30 minutes West 50 feet; thence
Northeasterly along the East right-of-way line of said Pelican Highway
75.5 feet to the point of beginning.
Acquired by Louisiana Ice & Electric Company, Inc., from Archie Davis
by act of exchange dated November 30, 1944, duly recorded in the Conveyance
Records of Rapides Parish, Louisiana.
11. A certain parcel of land, together with all rights, ways,
privileges and appurtenances thereto belonging or appertaining, situated in the
Parish of Rapides, State of Louisiana, said parcel of land being located in the
NW 1/4 of NE 1/4 of Section 13, Township 1 North, Range 2 West, and being more
particularly described as follows:
Commencing at the NW corner of the NE 1/4 of Section 13, T.1
N., R. 2 W., thence S 89 degrees 27' E along the North line of said
Sec. 13 a distance of 1200.8 feet to a point; thence due South a
distance of 364.6 feet to a 1 1/4" round iron pipe with cap marking the
North corner of the lot herein described, and being the point
designated as the point of beginning; thence S 51 degrees 47' W a
<PAGE> 51
39
distance of 50.0 feet to a 1 1/4" round iron pipe with cap; thence S 38
degrees 13' E a distance of 50.0 feet to a 1" round black pipe; thence
N 51 degrees 47' E a distance of 50.0 feet to a 1 1/4" round pipe with
cap; thence N 38 degrees 13' W a distance of 50.0 feet to the point of
beginning. The lot thus described comprises an area of 0.057 acres and
is bounded on all sides by lands of O. M. Johnson; all as is more
particularly shown by plat of survey made by Max M. Merrick, Registered
Engineer, dated March 18, 1941, attached to deed from Oliver M. Johnson
to Louisiana Ice & Electric Company, Inc., dated April 4, 1941,
recorded in Conveyance Book 254, page 567, records of Rapides Parish,
Louisiana.
Being the land acquired by Louisiana Ice & Electric Company, Inc.,
from Oliver M. Johnson by deed dated April 4, 1941, recorded in Conveyance Book
254, page 567, records of Rapides Parish, Louisiana.
12. A certain piece or parcel of land, together with all rights, ways,
privileges and appurtenances thereto belonging or appertaining, situated in the
Town of Pineville, Rapides Parish, Louisiana, and being more particularly
described as follows, to-wit:
From the point where the boundary line between the property
formerly belonging to Stephen Barrett and the property formerly
belonging to Mrs. F. M. Hayden intersects Main Street of said Town of
Pineville, said point being marked by an iron pipe as shown by plat of
survey made by Pan-American Engineers dated June 15, 1944, thence run
along said boundary line in a Westerly direction 211.5 feet to the
point of beginning, said point being monumented by an iron pipe set in
concrete; from this said point of beginning run in a Northeasterly
direction 87 feet to a point, said point being marked by an iron pipe;
from this point run in a Northwesterly direction 14.8 feet to the
Eastern line of the property owned by Central Louisiana Electric
Company, Inc.; thence run at an angle of 91 degree 48 minutes turned
from West towards South off the direction of the Southern street line
of Shamrock Street the distance of 69 feet; thence turn and run
Westerly parallel to the Southern line of Shamrock Street a distance
of 69.3 feet; thence turn 87 degrees 50 minutes to the
<PAGE> 52
40
right and run towards Shamrock Street a distance of 69 feet to the
Northern line of the parcel of ground bought by the Town of Pineville
from Stephen Barrett, et als, by deed dated November 19, 1930,
recorded in Conveyance Book 174, page 180, records of Rapides Parish,
Louisiana, and described as Item 2 in said deed; thence run in a
Northwesterly direction 62.9 feet to the Eastern property line of
Webster Street at a point monumented by an iron pipe set in concrete;
thence run Southwesterly along the Easterly boundary of Webster Street
a distance of 80 feet to a point monumented by an iron pipe set in
concrete; thence run in an Easterly direction 88.9 feet to a point on
the boundary line between the property formerly belonging to Stephen
Barrett and the property formerly belonging to Mrs. F. M. Hayden, said
point being marked by an iron pipe encased in concrete; thence run in
an Easterly direction towards Main Street the distance of 57.5 feet to
the point of beginning.
Said above described property being that enclosed within the
shaded lines on plat of survey made by Pan-American Engineers, dated
June 15, 1944, blue print of which is annexed to a deed dated November
21, 1946, from the Town of Pinevine to Central Louisiana Electric
Company, Inc., and made part thereof for greater particularity of
description and paraphed by Notary for identification therewith;
and being that part of that certain parcel of ground acquired by said
Town of Pineville from Stephen Barrett, et al, by act of sale dated
November 19, 1930, filed and recorded December 3, 1930, in Conveyance
Book 174, page 180, records of Rapides Parish, Louisiana, designated
as item 2 in the description of the property conveyed by said deed.
Being that property acquired by Central Louisiana Electric Company,
Inc., from the Town of Pineville, Louisiana, by deed dated November 21, 1946,
recorded in Conveyance Book 336, page 242, records of Rapides Parish,
Louisiana.
13. A certain lot of ground situated in the City of Alexandria,
Rapides Parish, Louisiana, being more particularly described as follows:
<PAGE> 53
41
Lot Eight (8) of Square Forty-four (44) of the Clapp Addition to the
City of Alexandria, Louisiana, as shown by the official plat of said
Clapp Addition duly of record; said lot fronting 53 feet 4 inches on
Monroe Street and running back therefrom between parallel lines, one
of which is Sixth Street, the distance of 106 feet 8 inches; being
that property acquired by Central Louisiana Electric Company, Inc.
from Ed M. Raxsdale et al by deeds dated May 28th and June 4th, 1947,
recorded in Conveyance Book 344, pages 85, 86 and 88, records of
Rapides Parish, Louisiana.
14. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Pineville, Louisiana, to Tooke & Reynolds, its
successors and assigns, by ordinance adopted by the Mayor and Board of Aldermen
of said town at its meeting held on March 18, 1930, as amended by ordinances
adopted on April 3, April 23 and June 13, 1930, recorded in Conveyance Book
205, page 582, Records of Rapides Parish, Louisiana; which said franchise was
acquired by Pineville Electric Company from Tooke & Reynolds by Act dated
October 5, 1930, recorded in Conveyance Book 206, page 300, Records of Rapides
Parish, Louisiana, and by Louisiana Ice & Electric Company, Inc., from
Pineville Electric Company by Act dated November 26, 1935, recorded in
Conveyance Book 206, page 319, Records of Rapides Parish, Louisiana.
15. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Cheneyville, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on April 3, 1945,
recorded in Conveyance Book 298, page 451, records of Rapides Parish,
Louisiana.
16. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Lecompte, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on June 5, 1945,
recorded in Conveyance Book 302, page 137, records of Rapides Parish,
Louisiana.
<PAGE> 54
42
17. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Forest Hill to Louisiana Ice & Electric Company, Inc.,
its successors and assigns, by ordinance adopted by the Mayor and Board of
Aldermen of said Town at its meeting held on May 14, 1945, recorded in
Conveyance Book 327, page 144, records of Rapides Parish, Louisiana.
18. That certain twenty-five year non-exclusive franchise or permit
granted by the Town of Woodworth, Louisiana, to Louisiana Ice & Electric
Company, Inc., its successors and assigns, by ordinance adopted by the Mayor
and Board of Aldermen of said Town at its meeting held on May 14, 1945, duly
recorded in the Conveyance Records of Rapides Parish, Louisiana.
19. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Rapides Parish, Louisiana, to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, along and under
all State Highways in the Parish of Rapides, Louisiana, by ordinance adopted at
its meeting held on April 17, 1945, recorded in Conveyance Book 298, page 638,
records of Rapides Parish, Louisiana.
20. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of Rapides Parish, Louisiana, to Louisiana Ice &
Electric Company, Inc., its successors and assigns, in, over, along and under
all Parish Roads in the Parish of Rapides, Louisiana, by ordinance adopted at
its meeting held on April 17, 1945, recorded in Conveyance Book 300, page 247,
records of Rapides Parish, Louisiana.
IN THE PARISH OF ST. LANDRY.
1. A certain lot or parcel of ground, together with all buildings and
improvements thereon, rights, ways, privileges and appurtenances thereto
belonging or appertaining, situated just Northwest and outside of the corporate
limits of the City of Opelousas, in the Parish of St. Landry, State of
Louisiana, on a 20 foot extension of Railroad Avenue, being more particularly
described as Lot No. Twenty-one (21) on a plat of subdivision made of the
property of Edward
<PAGE> 55
43
Pitre located on the extension of Railroad Avenue made by Paul L. Mayne, C. E.,
dated November 14, 1945, filed in the office of the Clerk of Court of St.
Landry Parish, Louisiana, said lot being bounded on the North by Lot
Twenty-two (22) of said Subdivision, on the South by Lot Twenty (20) of said
Subdivision, on the East by property of the Estate of Robert Sandoz, and on the
West by the extension of Railroad Avenue.
Being a portion of that property acquired by Edward Pitre from Mrs.
Alice Lafond, et al, by deed dated April 8, 1918, recorded in Conveyance Book
"I", No. 4 1/2, at page 594, and by Central Louisiana Electric Company, Inc.
from Edward Pitre by deed dated December 19, 1947, duly of record in the
Conveyance Records of St. Landry Parish, Louisiana.
2. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of St. Landry Parish, Louisiana, to Central
Louisiana Electric Company, Inc., its successors and assigns, in, over, under
and along all State Highways in the Parish of St. Landry, Louisiana, by
ordinance adopted at its meeting held on April 2, 1946, recorded in Conveyance
Book F-8, records of St. Landry Parish, Louisiana.
3. That certain twenty-five year non-exclusive franchise or permit
granted by the Police Jury of St. Landry Parish, Louisiana, to Central
Louisiana Electric Company, Inc., its successors and assigns, in, over, under
and along all Parish roads in the Parish of St. Landry, Louisiana, by ordinance
adopted at its meeting held on April 2, 1946, recorded in Conveyance Book F-8,
records of St. Landry Parish, Louisiana.
II.
All real estate or interests therein, now owned or which may be
hereafter acquired by the Company for use or which may be used by it in
connection with its business as an electric, gas and water company, together
with all of the right, title, and interest of the Company, now owned or
hereafter acquired, in and to any and all works, plants, buildings, structures,
erections, and constructions now
<PAGE> 56
44
or hereafter placed upon any of the real estate mentioned, described or
referred to as being subject to the lien of the Indenture with the fixtures,
tenements, hereditaments, and appurtenances thereunto appertaining or
belonging.
III.
All right, title and interest of the Company in and to any and all
permits, grants, privileges, rights of way, tenements and easements now or
hereafter owned, held, leased, enjoyed or exercised by the Company for the
purposes of, and in connection with, the erection, construction, operation, or
maintenance by or on behalf of the Company of any and all transmission and
distribution lines or systems for the transmission or distribution of electric
energy, gas and water, wherever located.
IV.
All right, title, and interest of the Company in and to any and all
licenses, franchises, ordinances, privileges, or permits heretofore granted,
issued or executed to the Company or its predecessors, or which may hereafter
be granted, issued, or executed, to it by the United States of America, or by
any State, or by any parish, county, township, municipality, village, or other
political subdivision thereof, or any agency, board, commission or department
of any of the foregoing, authorizing the erection, construction, operation, or
maintenance of the transmission and distribution lines or systems, or any part
thereof, heretofore or hereafter erected, constructed, operated or maintained
by or on behalf of the Company, for the transmission or distribution of the
electric energy, gas and water, insofar as the same may by law be assigned,
granted, transferred, mortgaged, or pledged.
V.
All right, title and interest of the Company in and to:
All electric generating plants and stations, sites, electric reserve
generating stations, substations, substation sites, office buildings, storeroom
buildings, warehouse buildings, boiler houses, plants, plant sites, service
plants, now or hereafter owned by the Company, including all
<PAGE> 57
45
electric works, power houses, generators, turbines, boilers, engines, furnaces,
buildings, structures, transformers, meters, towers, poles, tower lines,
cables, pole lines, tanks, regulators, conduits, motors, wires, switch racks,
switch brackets, insulators, pipe lines, pipes, compressors, pumps and other
equipment which are or will be used or useful in the transmission of fuel
supply to any of the Company's property used in the generation of electric
energy, and all equipment, improvements, machinery, appliances, devices,
appurtenances, supplies and miscellaneous property for generating, producing,
transforming, converting, storing and distributing electric energy now owned by
the Company and situated on the premises of the Company hereinbefore described,
being located in the parishes of Rapides, Avoyelles, St. Landry, Evangeline,
Grant and Natchitoches in the State of Louisiana, or hereafter acquired or
constructed by the Company in any such parish or in any or all other parishes
in said State.
All transmission and distribution lines, including poles, towers,
crossarms, wires, cables, conduits, switches, lightning arresters, fuses,
cutouts, insulators, transformers, service wires, condensers, meters and other
customary and usual appurtenances, now existing or which may be hereafter
acquired or constructed by the Company, for the transmission and distribution
of electric energy along, over or under streets, alleys, public and private
property in the towns, villages or communities of Bunkie, Cheneyville, Colfax,
Cottonport, Evergreen, Lecompte, Mansura, Moreauville, Plaucheville,
Simmesport, Ville Platte, Pineville, Pollock, Reddell, Vidrine, St. Landry,
Hessmer, Forest Hill, Pine Prairie, Longbridge, Hamburg, Chataignier, Easton,
Woodworth, Bordelonville, Bentley, Dry Prong, Libuse, Echo, Meeker, Eola,
Fishville, Tioga, Kingsville, Paradise, Big Bend, Moncla, Chicot, Long Leaf,
Point Blue, and Turkey Creek, in the State of Louisiana; and also all such
transmission and distribution lines, with equipment as aforesaid, now existing
or which may be hereafter acquired or constructed, in, adjacent to or extending
along, over or under public streets and highways running between the cities and
towns above mentioned; also all such transmission and distribution lines, with
equipment as aforesaid, now existing or which may be hereafter acquired or
constructed, upon or over private roads, private rights of way, rights of way
acquired or used for the purpose, or lands privately
<PAGE> 58
46
or publicly owned, for the transmission and distribution of electric energy to
consumers thereof, in the parishes of Rapides, Avoyelles, St. Landry,
Evangeline, Grant and Natchitoches, in the State of Louisiana; together with
all transmission and distribution lines, including poles, towers, crossarms,
wires, cables, insulators, conduits, switches, lightning arresters, fuses,
cutouts, transformers, service wires, condensers, meters and other customary
and usual appurtenances, hereafter acquired or constructed for the transmission
and distribution of electric energy along, over or under streets, alleys,
publicly and privately owned property, in any and all towns, whether
incorporated or not, and cities regardless of class, and along, over and under
public highways, private rights of way, and rights of way acquired or used for
the purpose over privately or publicly owned property, in the parishes of
Rapides, Avoyelles, St. Landry, Evangeline, Grant and Natchitoches, in the
State of Louisiana, and in any and all other parishes in said State.
VI.
All waterworks, plants and water distribution systems, now owned by
the Company, and any waterworks plants and/or waterworks distribution systems,
hereafter constructed or acquired by the Company, together with the buildings,
structures, erections, motors, pumps, pumping machinery, reservoirs, filters,
filter-galleries, chlorinating equipment, tanks, wells, water rights, water
supply, water mains, hydrants, pipe lines, service pipes, meters, standpipes,
engines, boilers, tools, apparatus, appliances, facilities, machinery,
equipment, fixtures, and all other property used or provided for use in the
construction, maintenance, repair and/or operation thereof, both that now owned
and that which may be hereafter acquired by the Company, and together also with
all of the rights, privileges, rights of way, franchises, licenses, easements,
permits, liberties, immunities, grants and ordinances of the Company howsoever
conferred or acquired, and whether now owned or hereafter to be acquired with
respect to the construction, maintenance, repair and operation of said plants
and systems and each of them, and any additions thereto and extensions thereof.
<PAGE> 59
47
VII.
All gas generating plants, gas storage plants and gas transmission
and/or distribution systems now owned by the Company, and any gas generating
plants, gas storage plants and/or gas transmission and/or distribution systems
hereafter constructed or acquired by the Company, and any additions to or
extensions of any such existing or future plants, and systems, together with
the buildings, erections, structures, generating and purifying apparatus,
holders, engines, boilers, benches, retorts, tanks, pipe lines, compressors,
connections, service pipes, meters, conduits, tools, instruments, appliances,
apparatus, facilities, machinery, fixtures and all other property used or
provided for use in the construction, maintenance, repair and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also with all rights, privileges, rights of way,
franchises, licenses, easements, grants, liberties, immunities, permits and
ordinances of the Company, howsoever conferred or acquired, and whether now
owned or hereafter to be acquired, with respect to the construction,
maintenance, repair and/or operation of said gas generating plants, gas storage
plants and gas transmission and/or distribution systems, and each of them, and
any additions thereto and extensions thereof.
VIII.
Any and all property which may from time to time after the date of
this Indenture be delivered or which may by writing of any kind be conveyed,
pledged, assigned or transferred to the Trustee by the Company, or by any
person or corporation, to be held as part of the trust estate; and the Trustee
is hereby authorized to receive any such property, and any such conveyance,
pledge, assignment or transfer, as and for additional security hereunder, and
to hold and apply any and all such property subject to and in accordance with
the terms of this Indenture.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid property or
any part thereof, with the reversion and reversions,
<PAGE> 60
48
remainder and remainders, and (subject to the provisions of Section 9.01
hereof) the tolls, rents, revenues, issues, income, product and profits
thereof, and all the estate, right, title, interest and claim whatsoever, at
law as well as in equity, which the Company now has or may hereafter acquire in
and to the aforesaid property and every part and parcel thereof.
SAVING AND EXCEPTING, however, from the property hereby mortgaged and
pledged (whether now owned by the Company or hereafter acquired by it) all
bills, notes and accounts receivable, cash on hand and in bank, contracts,
merchandise and appliances kept for purposes of sale, and all bonds,
obligations, evidences of indebtedness, shares of stock and other securities,
and certificates or evidences of interest therein--other than any of the
foregoing which may be hereafter specifically transferred or assigned to or
pledged or deposited with the Trustee hereunder or required by the provisions
of this Indenture so to be--and all office furniture and equipment, motor
vehicles, tools, testing equipment, consumable materials and supplies;
provided, however, that, if upon the happening of an event of default as
hereinafter in this Indenture defined, the Trustee or any receiver appointed
hereunder shall enter upon and take possession of the mortgaged property, the
Trustee or such receiver may, to the extent permitted by law, at the same time
likewise take possession of any and all of the property described in this
paragraph then on hand and use and administer the same to the same extent as if
such property were part of the mortgaged property, unless and until such event
of default shall be remedied or waived and possession of the mortgaged property
restored to the Company, its successors or assigns.
SAVING AND EXCEPTING, however, from the property hereby mortgaged and
pledged:
(a) The following parcels of land now owned by the Company and
not used by it in connection with its business as an electric, gas or
water company or as an electric, gas or water utility:
(1) parcels described as items 1, 2, 3, 4, 5, 6, 7,
9, 10 and 18, in deed dated January 2, 1935, from Frank C.
Landers,
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49
Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc., Bankrupt,
to Louisiana Ice & Electric Company, Inc., recorded in Conveyance Book
199, page 273, Records of Rapides Parish, Louisiana, to which deed
reference is hereby made for greater particularity of description;
(2) parcel described as item 4 in deed dated January 2, 1935,
from Frank C. Landers, Trustee in Bankruptcy, and Louisiana Ice &
Utilities, Inc., Bankrupt, to Louisiana Ice & Electric Company, Inc.,
recorded in Conveyance Book A-65, page 16, Records of Avoyelles
Parish, Louisiana, to which deed reference is hereby made for greater
particularity of description;
(3) parcel described as item 4 in deed dated January 2, 1935,
from Frank C. Landers, Trustee in Bankruptcy, and Louisiana Ice &
Utilities, Inc., Bankrupt, to Louisiana Ice & Electric Company, Inc.,
recorded in Conveyance Book B-30, page 170, Records of Evangeline
Parish, Louisiana, to which deed reference is hereby made for greater
particularity of description.
(b) All machinery, equipment, fixtures, supplies and materials used by
the Company in its ice and cold storage, ice cream, or dairy business.
(c) All motor vehicles now used or hereafter acquired for use in
connection with the ice and cold storage, ice cream and/or dairy business of
the Company, together with all tires, spare parts, materials and supplies
appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, not
used by or useful to the Company in its business as an electric, gas or water
company or as an electric, gas or water utility, not located on any parcel of
real estate now owned or hereafter acquired, referred to as being subject to
the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and
replacements made to or in connection with the property set forth in paragraphs
(a), (b), (c) and (d) above.
<PAGE> 62
50
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, aliened, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto the Trustee and its
successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of
way for pole lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens securing indebtedness which
has neither been assumed by the Company nor upon which it customarily pays
interest charges, existing solely upon real property, or rights in and relating
thereto, which real property or rights have been or may be acquired for
right-of-way purposes, to liens of taxes and assessments for the current year
and taxes and assessments not yet due, to alleys, streets and highways that may
run across or encroach upon said lands, and to liens, if any, incidental to
construction; and, with respect to any property which the Company may hereafter
acquire, to all terms, conditions, agreements, covenants, exceptions and
reservations expressed or provided in such deeds and other instruments,
respectively, under and by virtue of which the Company shall hereafter acquire
the same and to any and all liens existing thereon at the time of such
acquisition within the restrictions contained in the Indenture; and subject
also to other liens and encumbrances of the character hereinafter defined as
"permitted liens" insofar as the same may attach to any of the property
embraced herein;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth,
from the execution and delivery of this Indenture, and that the lien and
security of this Indenture shall take effect from the date of execution and
delivery hereof as though all of the said bonds of all series were actually
authenticated and delivered and issued upon such date;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and interest on said bonds, together with the premium,
<PAGE> 63
51
if any, payable on such of said bonds as may have been called for redemption
prior to maturity, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon for principal, interest and premium, if any, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by it, then this
Indenture and the estate and rights hereby granted shall cease, determine and
be void, otherwise to be and remain in full force and effect.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the
parties hereto, that all such bonds and coupons are to be authenticated,
delivered and issued and that all property subject or to become subject hereto
is to be held subject to the further covenants, conditions, uses and trusts
hereinafter set forth, and the Company, for itself and its successors and
assigns, does hereby covenant and agree to and with the Trustee and its
successor or successors in such trust, for the benefit of those who shall hold
said bonds and coupons, or any of them, as follows:
ARTICLE I
DEFINITIONS.
SECTION 1.01. The terms specified in the next succeeding six Sections
hereof, numbered from 1.02 to 1.07, both inclusive, shall (except as herein
otherwise expressly provided) have the meanings specified in such Sections for
all purposes of this Indenture and of any indenture supplemental hereto
including any certificate, opinion or other document filed with the Trustee
pursuant to this Indenture. All other terms used in this Indenture which are
defined in the Trust Indenture Act of 1939 or which are by reference therein
defined in the Securities Act of 1933, as amended, shall (except as herein
otherwise expressly provided) have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as those Acts were in force on
the date of the execution of this Indenture.
SECTION 1.02.
the Company:
The term "the Company" shall mean CENTRAL LOUISIANA ELECTRIC COMPANY,
INC., the party of the first part hereto, and, subject
<PAGE> 64
52
to the provisions of Article XIII hereof, shall also include its successors and
assigns.
the Trustee:
The term "the Trustee" shall mean THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS, the party of the second part hereto, and, subject to the provisions of
Article XIV hereof, shall also include its successors and assigns.
this Indenture:
The term "this Indenture" shall mean this instrument as amended or
supplemented by all indentures supplemental hereto. The words "hereof",
"herein", "hereto", "hereby" and "hereunder" each refers to the entire
Indenture.
bond or bonds:
The term "bond" or "bonds" shall mean any bond or all bonds, as the
case may be, authenticated and delivered under this Indenture.
holder:
The term "holder" or "bondholder", when used with reference to bonds
authenticated and delivered hereunder, shall mean the bearer of any bond the
ownership of which is not at the time registered as to principal, and the
person in whose name a particular registered bond without coupons, or a
particular coupon bond registered as to principal, is at the time registered on
the books of the Company kept for that purpose in accordance with the terms of
this Indenture.
person:
The term "person" shall mean and include an individual, a corporation,
a partnership, an association, a joint stock company, a trust, any
unincorporated organization or any government or political subdivision thereof.
outstanding, with reference to bonds:
The term "outstanding", when used with reference to the bonds, shall
mean (except as otherwise defined in paragraph (4) of subsec-
<PAGE> 65
53
tion (E) of Section 14.14 hereof) as of any particular time all bonds which
theretofore shall have been authenticated and delivered under this Indenture,
except (a) bonds theretofore cancelled or delivered to the Trustee for
cancellation, (b) bonds for the payment or redemption of which funds in the
necessary amount shall have been or shall concurrently be specifically
deposited with or held by the Trustee in trust with irrevocable direction so to
apply the same (subject to the provisions of Section 15.04 hereof), provided
that if such bonds are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been published or otherwise given as required by
this Indenture and the terms of such bonds, or provision satisfactory to the
Trustee shall have been made for such notice, (c) bonds in lieu of or in
substitution for which other bonds shall have been authenticated and delivered
pursuant to the provisions of Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 8.04
and 17.04 hereof, and (d) bonds deposited with or held by the Trustee under any
of the provisions of this Indenture, including any so held under any sinking or
other similar fund unless otherwise expressly provided in relation to such
fund; provided, however, that for the purposes of this Indenture, in
determining the percentage of the principal amount of bonds outstanding (or of
bonds of a particular series outstanding) entitling the holders thereof to take
any action, or in determining whether the holders of the required percentage of
the principal amount of bonds outstanding (or of bonds of a particular series
outstanding) have concurred in any direction, demand, request, notice, consent
or other action, bonds owned by the Company or by any other obligor on the
bonds, or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or such obligor, shall
be disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction or consent, only bonds
which the Trustee knows are so owned, shall be so disregarded. Bonds so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this paragraph, if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such bonds and that the pledgee is
not a person directly or indirectly controlling or controlled by or under
direct or indirect
<PAGE> 66
54
common control with the Company or any other obligor on the bonds. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
resolution and resolution of the Board of Directors:
The terms "resolution" and "resolution of the Board of Directors"
shall mean a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors or Executive
Committee of the Company and to be in full force and effect on the date
certified.
officers' certificate:
The term "officers' certificate" shall mean a certificate signed and
verified by the President or a Vice-President of the Company and by an officer
of the Company (who may be the Treasurer or an Assistant Treasurer or the
Comptroller or an Assistant Comptroller or any other accounting officer of the
Company) actively engaged in accounting work but who need not be a certified or
licensed or public accountant. Each such certificate shall include the
statements required by Section 3.01 hereof.
opinion of counsel:
The term "opinion of counsel" shall mean an opinion in writing signed
by counsel (who may be an officer or employee of or of counsel to the Company)
appointed by the Board of Directors or Executive Committee of the Company and
satisfactory to the Trustee. Each such opinion shall include the statements
required by Section 3.01 hereof. Any opinion of counsel given as to title to
property may be based, in whole or in part, upon any guaranty or title policy,
certified abstract, certificate or opinion issued or rendered by any person,
firm or corporation while engaged in the business of insuring or guaranteeing
titles to property or of making or issuing certified abstracts, or upon the
opinion of other counsel; provided that in each case such opinion of counsel
shall state that the signer believes the person, firm or corporation or other
counsel so rendering or giving such guaranty or title policy, certified
abstract, certificate or opinion is reputable and one upon whom he may properly
rely.
<PAGE> 67
55
independent:
The term "independent", when applied to any accountant, engineer,
appraiser or other expert, shall mean such a person, who is in fact
independent, appointed by the Board of Directors or Executive Committee of the
Company and approved by the Trustee in the exercise of reasonable care.
control:
The term "control" shall mean the power to direct the management and
policies of a person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise, and the
terms "controlling" and "controlled" shall have meanings correlative to the
foregoing.
affiliate:
The term "affiliate" shall mean a person controlling, controlled by,
or under common control with, another person and the term "affiliated" shall
have a meaning correlative to the foregoing.
responsible officers:
The term "responsible officers" of the Trustee shall mean the chairman
of its board of directors, the chairman of its executive committee, the
president, every vice-president, every assistant vice-president, the cashier,
every assistant cashier, the treasurer, every assistant treasurer, the
secretary, every assistant secretary, every trust officer, every assistant
trust officer and every other officer and assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of, and familiarity with, a
particular subject; and the term "responsible officer" shall mean any of said
officers or assistant officers.
daily newspaper:
The term "daily newspaper" shall mean a newspaper printed in the
English language customarily published at least once on each business day other
than Sundays and holidays.
<PAGE> 68
56
SECTION 1.03.
property:
The term "property" shall mean all property, real, personal and mixed,
and all interests therein, and all rights and franchises.
the lien hereof and the lien of this Indenture:
The terms "the lien hereof" and "the lien of this Indenture" shall
mean the lien created by these presents (including the after-acquired property
clauses hereof) and the lien created by any subsequent conveyance or delivery
to or pledge with the Trustee hereunder (whether made by the Company or any
other person) effectively constituting any property a part of the security held
by the Trustee upon the terms and trusts and subject to the covenants,
conditions and uses specified in this Indenture.
the mortgaged and pledged property:
The term "the mortgaged and pledged property" shall mean as of any
particular time all property (except cash held by the Trustee for the payment
or redemption of particular bonds or coupons) which at such time is subject or
intended to be subject to the lien of this Indenture whether such lien be
created by these presents (including the after-acquired property clauses
hereof) or by subsequent conveyances or delivery to or pledge with the Trustee
hereunder or otherwise.
property additions:
The term "property additions" shall mean all tangible property (except
as hereinafter in this Section expressly provided), including permanent
improvements, extensions, betterments and replacements to or about the plants
and properties of the Company, purchased, constructed, erected or otherwise
acquired, and owned by the Company subsequent to June 30, 1950, which the
Company has lawful authority to acquire, own and operate, which has become
subject to the lien of this Indenture as a first mortgage lien thereon, subject
only to permitted liens, as hereinafter defined, and which is used or useful by
the Company in connection with the business of generating, manufacturing,
purchasing or otherwise acquiring, transmitting, distributing
<PAGE> 69
57
or supplying (i) electricity for light, heat, power or other purposes, (ii) gas
for domestic, commercial and industrial uses and (iii) water for public or
private use. All property of the character herein described as property
additions in the process of construction or erection shall be deemed to be
property additions as of any particular date, insofar as actually constructed
or erected (whether or not constituting completed property units) after June
30, 1950, and before such particular date. Property additions shall mean all
property additions, whether or not at the time retired. If the Company shall,
in accordance with the provisions of Article XIII hereof, be merged into or
consolidated with any other corporation or if all or substantially all of the
mortgaged and pledged property shall be conveyed as an entirety to any other
corporation in accordance with the provisions of Article XIII hereof, all
property of the character herein described as property additions and owned by
such successor corporation at the time of such consolidation, merger or
conveyance (other than such property acquired from the Company) shall be
deemed to be property additions acquired by such successor corporation at the
date upon which it became such successor corporation.
The term "property additions" shall not, however, include (i) any
property not subject to the direct lien of this Indenture or which is subject
to any lien, other than permitted liens, as hereinafter defined, prior to or on
a parity with the lien hereof; (ii) franchises or governmental permits, going
value, or good will, as such, separate and distinct from the property operated
thereunder or in connection therewith or incident thereto, or any leases,
contracts, choses in action, shares of stock, bonds, notes, bills of exchange,
evidences of indebtedness or other securities; (iii) any materials or supplies,
unless and until installed and charged to plant or plant addition account; (iv)
any item of property acquired to replace a similar item of property the
retirement of which has not been credited to plant account, or any item of
property the cost of which has been charged or is properly chargeable to
repairs, maintenance or other operating expense account or the cost of which
has not been charged or is not properly chargeable to plant or plant addition
account; (v) any plant, system or other property in which the Company shall
acquire only a leasehold interest,
<PAGE> 70
58
or (unless the same shall be movable physical property used or useful in
connection with bondable property and shall constitute, in the opinion of
counsel, personal property) any improvements, extensions, additions, and
betterments to any plant, system or other property in which the Company shall
hold only a leasehold interest; (vi) any property which is expressly excepted
from the lien of this Indenture; (vii) any property not located in the State of
Louisiana; or (viii) any property, real, personal and mixed purchased,
constructed, erected or otherwise acquired by the Company which is not used or
useful in connection with the business of the Company as an electric, gas or
water company or as an electric, gas or water utility. Materials and supplies
shall be deemed to have been acquired as property additions when installed and
charged to plant or plant addition account.
Except as provided in clause (v) above, there shall not be excluded
from property additions any plant, system, equipment or other property of the
Company by reason of the fact that it may be located upon or under public
highways or other places not owned by the Company if such property is installed
or constructed pursuant to rights held under easements, rights of way, permits,
licenses, franchises and other like privileges.
amount:
The term "amount", when used with respect to property additions, shall
mean the cost thereof to the Company, or the fair value thereof to the Company,
whichever shall be less.
bondable property:
The term "bondable property" shall mean (i) all mortgaged and pledged
property owned by the Company on July 1, 1950, and which would constitute
property additions if purchased, constructed, erected or otherwise acquired by
the Company subsequent to June 30, 1950, and (ii) property additions.
nonbondable property:
The term "nonbondable property" shall mean (i) all of the mortgaged
and pledged property owned by the Company on July 1, 1950, which is not
bondable property and (ii) all of the mortgaged and
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59
pledged property purchased, constructed, erected or otherwise acquired by the
Company subsequent to June 30, 1950, which does not constitute property
additions; provided, however, that any nonbondable property, which, because of
a change of conditions, shall come within the definition of property additions,
shall be deemed to be property additions acquired by the Company on the date
when such property came within the definition of property additions and shall
thereupon cease to be nonbondable property and may thereafter be included in an
officers' certificate as provided in subdivision 2 of Paragraph B of Section
1.06.
cost:
The term "cost", when used with respect to any particular property
shall mean
(a) in the case of property acquired on or prior to January 1,
1935, the amount at which said property was carried on the books of
account of the Company subsequent to restatement by the Company of its
fixed property at original cost (estimated where not known) which
restatement was made as of December 31, 1945, and in the case of
property acquired subsequent to December 31, 1934, and before July 1,
1950, the cost (estimated where not known) thereof to the Company less
in each case a due proportion of the reserve for renewals,
replacements and retirements (or depreciation) accrued to July 1, 1950
as shown by the books of account of the Company on that date, and
(b) in the case of property purchased, constructed, erected or
otherwise acquired by the Company subsequent to June 30, 1950, the
cost (or, if not known, the estimated cost) thereof to the Company.
Such cost shall include (i) all amounts paid, expended or incurred in
the construction, erection or acquisition thereof, including the
installation thereof ready for operation and also including the cost
of paving, grading and other improvements to public highways
incidental to such construction, erection or acquisition and paid by
the Company or assessed against the Company or any of its properties;
(ii) the amount of any obligations or indebtedness payable in money
which were assumed or agreed to be paid by the Company in connection
with the construction,
<PAGE> 72
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erection or acquisition thereof or subject to which such property was
acquired and which were credited or allowed upon or deducted from or
constitute a part of the consideration therefor; (iii) such allowances
for interest during construction, taxes, engineering, casualties and
other items of overhead as are properly chargeable, in accordance with
the requirements of any system of accounting with which the Company is
then required to comply in accordance with the rules, regulations and
orders of the regulatory commission or commissions having jurisdiction
or supervisory authority over its accounts, or, if there be no such
requirements, in accordance with sound accounting practice for
companies engaged in business similar to that of the Company; and (iv)
in the case of property acquired in exchange for other property owned
by the Company at the time of such exchange, the fair value of the
property so transferred in exchange.
The cost of any property consisting of an acquired plant or system
shall include the cost, if any, to the Company of any franchises or other
rights acquired simultaneously therewith for which no separate or distinct
consideration shall have been paid or apportioned. In the case of property
additions consisting of property owned by a successor corporation immediately
prior to the time it shall have become such successor corporation by
consolidation, merger or conveyance, the cost of such property shall be the
cost thereof to such successor corporation, less applicable reserves for
renewals, replacements and retirements (or depreciation) immediately prior to
such consolidation, merger or conveyance.
In the case of property additions which prior to the date of
acquisition thereof by the Company have been used or operated by a person or
persons other than the Company in a business similar to that in which it has
been or is to be used or operated by the Company, the "cost" shall be the
original cost thereof (or, if not known, the estimated amount) as such cost is
defined in accordance with the requirements of any system of accounting with
which the Company is then required to comply in accordance with the rules,
regulations and orders of the regulatory, commission or commissions having
jurisdiction or supervisory authority over its accounts, less applicable
reserves for renewals, replacements and retirements (or depreciation).
<PAGE> 73
61
If property additions are acquired in whole or in part through the
delivery of shares of stock in payment therefor, the portion of the cost of
such property additions represented by such shares of stock shall be deemed to
be the fair value in cash of such shares of stock at the time of delivery
thereof in payment for such property additions.
In determining cost in cases in which property consists partly of
bondable property and partly of nonbondable property or in cases in which cost
is not allocated between various items of property and the determination of the
cost of any or all of such items is required under any of the provisions of
this Indenture, cost may be allocated to the various parts and items of
property in accordance with the requirements of any system of accounting with
which the Company is then required to comply in accordance with the rules,
regulations and orders of the regulatory commission or commissions having
jurisdiction or supervisory authority over its accounts, or, if there be no
such requirements, in any manner which the officers making the officers'
certificate in which the cost of such parts or items of property is required to
be stated deem reasonable and in accordance with sound accounting practice for
companies engaged in businesses similar to that of the Company.
For the purpose of making such allocation, the officers making such
officers' certificate may rely on and accept if they deem it proper so to do,
the certificate or opinion of an engineer, appraiser or other expert filed with
the Trustee with respect to the fair value of the property so acquired, and, if
the fair value of such property as set forth in such certificate or opinion
is not less than the greater of (i) twenty-five thousand dollars ($25,000) or
(ii) one per centum (1%) of the aggregate principal amount of the bonds at the
time outstanding, such certificate or opinion shall be made by an independent
engineer, appraiser or other expert which shall be filed with the Trustee and
shall govern for this purpose.
fair value to the company:
The term "fair value to the Company", when used with respect to any
particular property, shall mean the fair value of such property to the Company
as of the time that it was purchased, constructed,
<PAGE> 74
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erected or otherwise acquired by the Company, which fair value may, subject to
the provisions of Section 3.01 hereof, be determined without physical inventory
or inspection and by use of accounting and engineering records maintained by
the Company with respect to such property and by application of appropriate
life tables and indices of cost and other engineering methods. Such fair value
to the Company of property consisting of an acquired plant or system shall not
include any amount for any franchises, contracts, operating agreements or other
rights acquired simultaneously therewith, even though no separate or distinct
consideration shall have been paid for, or apportioned to, such franchises,
contracts, operating agreements or other rights.
SECTION 1.04.
permitted liens:
The term "permitted liens" shall mean as of any particular time
any of the following:
(i) liens for taxes, assessments or governmental charges not then
delinquent; (ii) the lien of taxes, assessments or governmental charges due, or
to become due, the validity of which is being contested at the time by the
Company in good faith and, if necessary, by appropriate legal proceedings,
provided that the Company shall have made such provision as may be required by
the Trustee for the payment of any amount or the giving of such security as
shall be required to prevent the loss or forfeiture of any of the mortgaged and
pledged property, and for the payment of the amount of any such taxes,
assessments or governmental charges as shall ultimately be determined to be due
and payable; (iii) any liens, the indebtedness secured by which has not been
assumed by the Company and on which it does not customarily pay interest
charges, existing upon real estate or rights in or relating to real estate
acquired by the Company for substation, transmission lines, distribution lines,
pipe lines, water mains, or right of way purposes or for storeroom or service
buildings incidental to any of the foregoing; (iv) rights reserved to or vested
in any municipality or public authority by the terms of any right, power,
franchise, grant, license, permit, or by any provision of law to terminate such
right, power, franchise, grant, license or permit or to purchase, condemn or
<PAGE> 75
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recapture or to designate a purchaser of any of the property of the Company;
(v) leases, easements, restrictions, exceptions or reservations in any property
of the Company created at or before the acquisition thereof by the Company for
the purpose of roads, water mains, pipe lines, transmission lines, distribution
lines or for the joint or common use of real property and equipment and other
like purposes, and other minor defects and irregularities of title in any
property, which do not materially impair the use of such property in the
operation of the business of the Company or which the Company itself has power
to cure by appropriate legal proceedings; (vi) rights reserved to or vested in
any municipality or public authority to use or control or regulate any property
of the Company; (vii) any obligations or duties affecting the property of the
Company to any municipality or public authority with respect to any franchise,
grant, license or permit; (viii) undetermined liens and charges incidental to
construction, except such as may result from any delinquent obligation of the
Company for the payment of money on account of such construction; or (ix)
funded liens.
funded liens:
The term "funded liens" shall mean and include mortgage or other liens
upon any of the mortgaged and pledged property prior to or on a parity with the
lien of this Indenture, other than permitted liens as above defined in clauses
(i) to (viii), both inclusive, securing indebtedness for the payment or
redemption of which funds in the necessary amount shall have been or shall
concurrently be deposited with or be held by the Trustee or by the trustee or
other holder of such prior or equal lien with irrevocable direction so to apply
same, provided that if such indebtedness is to be redeemed prior to the
maturity thereof notice of such redemption shall have been published or
otherwise given as required by the prior or equal lien securing the same, or
provision satisfactory to the Trustee shall have been made for such notice.
unfunded liens:
The term "unfunded liens" shall mean and include any mortgage or other
liens, other than permitted liens, upon any of the mortgaged
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or pledged property prior to or on a parity with the lien of this Indenture.
The bonds, obligations or principal indebtedness secured by such unfunded liens
are designated "unfunded lien bonds".
SECTION 1.05.
retirements of bondable property and amount thereof:
The term "retirements of bondable property" shall include all bondable
property which, subsequent to June 30, 1950, shall have been sold, exchanged or
otherwise disposed of by the Company or taken through the exercise of eminent
domain, or lost or destroyed by fire or other casualty, or which, subsequent to
June 30, 1950, shall have become obsolete or worn out or permanently
unserviceable, or which, subsequent to June 30, 1950, shall have been retired
from service for any reason, or shall have permanently ceased to be used or
useful in the business of the Company, or which, subsequent to June 30, 1950,
shall have been otherwise abandoned, and which, subsequent to June 30, 1950,
for any reason shall have been removed from the plant account of the Company or
should have been so removed in accordance with the rules and regulations of any
State or Federal governmental body under the jurisdiction of which the Company
may be operating, or, if there be no such body or no pertinent rules or
regulations, in accordance with sound accounting practice for companies engaged
in business similar to that of the Company; provided, however, that there shall
not be included in the term "retirements of bondable property" any items of
property the cost of replacement of which is properly chargeable to operating
expenses or maintenance or repair accounts or income account as distinguished
from capital account.
The term "amount of retirements of bondable property" shall mean, as
of any particular date, the sum of (i) the aggregate cost of all bondable
property, which was bondable property on July 1, 1950, retired subsequent to
June 30, 1950, and prior to such particular date, and (ii) the aggregate of the
cost or fair value to the Company, whichever shall be the lesser, of all
property additions retired subsequent to June 30, 1950, and prior to such
particular date.
<PAGE> 77
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minimum provision for property retirements or depreciation:
The term "minimum provision for property retirements or depreciation"
when used with reference to any period of time, shall mean an amount equal to
(i) fifteen per centum (15%) of the gross operating revenues of the Company
received from electric, gas and water operations, during such period arising
from the operation of bondable property, after deducting from such gross
operating revenues (a) an amount equal to the aggregate cost to the Company of
electric energy, gas and water purchased for resale in connection with the
operation of bondable property and (b) rentals paid for the lease of electric,
gas and water facilities, less (ii) an amount equal to the aggregate charges by
the Company to operating expenses during such period for current repairs and
maintenance of bondable property.
amount of net property retirements:
The term "amount of net property retirements" at any particular time
shall mean the amount, if any, by which (a) the aggregate amount of all
retirements of bondable property during the period subsequent to June 30, 1950,
or (b) the aggregate of the minimum provision for property retirements or
depreciation for such period, whichever shall be the greater, exceeds the sum
of (i) all cash and (ii) the principal amount of any purchase money obligations
and (iii) obligations of a governmental or public body, authority, agency or
licensee, deposited with the Trustee as the proceeds of insurance on, or of the
release of, or of the taking by eminent domain of, or of the purchase by any
governmental or public body, authority, agency or licensee, of, or other
disposition or change of, any bondable property retired during such period.
SECTION 1.06.
bondable value of property additions:
(A) The term "bondable value of property additions", at any particular
time, shall mean the sum of the cost or the fair value to the Company,
whichever shall be less, of all property additions then or theretofore
certified to the Trustee pursuant to the provisions of subsection B of this
Section, after deducting therefrom the sum
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of (a) the amount of net property retirements and (b) the amount of bondable
value of property additions theretofore made the basis for the authentication
and delivery of bonds or the withdrawal of cash under any provision of this
Indenture or for a credit under any sinking and improvement fund or other
purchase or similar fund which may be created pursuant to the provisions of any
indenture supplemental to this Indenture.
(B) Each computation of bondable value of property additions shall be
contained in an officers' certificate with respect to bondable value of
property additions. The Company may, at its option, deliver to the Trustee at
any time, an officers' certificate with respect to bondable value of property
additions, and shall deliver such an officers' certificate to the Trustee on or
before April 30 of each year beginning with the year 1951, whether or not any
part of the bondable value of property additions as computed therein is to be
used in connection with any application or certification then made to the
Trustee, and shall also be required to deliver such an officers' certificate in
connection with any application or certification at any time made to the
Trustee which provides for the use of bondable value of property additions;
provided, however, that no such officers' certificate shall be used in
connection with an application for the authentication and delivery of bonds
unless the end of the period covered thereby shall be not more than three (3)
months prior to the delivery thereof to the Trustee.
Each such officers' certificate required to be delivered to the
Trustee on or before April 30 of each year (hereinafter referred to as the
annual officers' certificate with respect to bondable value of property
additions) shall be for the period ended December 31 of the preceding year, and
any other such officers' certificate delivered to the Trustee shall be for the
period ended not more than three (3) months prior to the delivery thereof and,
if any such officers' certificate is delivered to the Trustee subsequent to
January 1 and prior to April 30 in any year and before there has been delivered
to the Trustee the annual officers' certificate with respect to bondable value
of property additions, it shall be for a period ended not later than December
31 of the preceding year.
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Each officers' certificate of bondable value of property additions
shall set forth and need only set forth:
(1) except in the case of the first such officers' certificate
so delivered to the Trustee, the sum of the cost or the fair value to
the Company, whichever shall be the lesser, of all property additions
theretofore certified to the Trustee as shown by the preceding
officers' certificates delivered to the Trustee pursuant to the
provisions of this subsection (B) (without detail as to the manner of
computation or as to the nature of the items included therein);
(2) a brief identification of the property additions then
being certified to the Trustee (and, if any property included in such
property additions is located on any leasehold, stating that the
property located on such leasehold constitutes movable physical
property used or useful in connection with bondable property), which
shall include only property additions purchased, constructed, erected
or otherwise acquired by the Company during the period subsequent to
the end of the period covered by the last preceding officers'
certificate delivered to the Trustee pursuant to this subsection (B),
or subsequent to June 30, 1950, if no such certificate shall
previously have been delivered to the Trustee; provided, however, that
property of the Company which originally constituted nonbondable
property, may be included in a later officers' certificate delivered
to the Trustee pursuant to this subsection (B) when such property
shall have come within the definition of the term property additions
regardless of the period covered by such later certificate; and
provided, further, that any property additions acquired by the Company
within fifteen days preceding, or to be so acquired concurrently with,
the making or granting of any application in connection with which
such officers' certificate is delivered to the Trustee may (unless
such property additions are to be acquired in exchange or substitution
for bondable property) be certified to the Trustee as property
additions in such officers' certificate and in such event shall be
treated for all purposes of this Indenture as having been acquired
within the period covered by such officers' certificate;
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(3) the cost to the Company of the property additions then
being certified to the Trustee, which cost, to the extent that it is
represented by shares of stock, shall be the fair value in cash of
such shares as determined by an appraiser or other expert in
accordance with the provisions of subsection (C) of this Section;
(4) the fair value to the Company of the property additions
then being certified to the Trustee, as determined by an engineer,
appraiser or other expert in accordance with the provisions of
subsection (C) of this Section;
(5) the aggregate cost or, in the event that the fair value to
the Company of any such property additions then being certified to the
Trustee shall be less than the cost thereof, the sum of the aggregate
fair value to the Company of such property additions and the aggregate
cost of all other property additions then being certified to the
Trustee;
(6) the aggregate amount of all retirements of bondable
property during the period subsequent to June 30, 1950;
(7) the aggregate of the minimum provision for property
retirements or depreciation for such period, showing, in reasonable
detail, how the same has been calculated;
(8) the aggregate amount of all cash and principal amount of
purchase money obligations and obligations of a governmental or public
body, authority, agency or licensee deposited with the Trustee as the
proceeds of insurance on, or the release, or the taking by eminent
domain, or the purchase by any governmental or public body, authority,
agency or licensee, of, or other disposition or change of any bondable
property retired during such period;
(9) the amount of net property retirements for such period;
(10) the aggregate amount of bondable value of property
additions theretofore made the basis for the authentication and
delivery of bonds or the withdrawal of cash under any provision of
this Indenture, or for a credit under any sinking and improvement fund
or other purchase or similar fund which may be created pursuant to the
provisions of any indenture supplemental to this Indenture during the
period;
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(11) the aggregate of the amount set forth pursuant to the
foregoing paragraphs (1) and (5);
(12) the aggregate of the amounts set forth pursuant to the
foregoing paragraphs (9) and (10);
(13) a computation showing the result (plus or minus) after
deducting from the amount set forth pursuant to the foregoing
paragraph (11) the amount set forth pursuant to the foregoing
paragraph (12); and
(14) the resulting balance available (or the resulting
deficiency) on the date of such officers' certificate and the amount,
if any, of any such balance then to be made the basis for the
authentication and delivery of bonds or the withdrawal of cash under
any provision of this Indenture, or for a credit under any sinking and
improvement fund or other purchase or similar fund which may be
created pursuant to the provisions of any indenture supplemental to
this Indenture, provided, however, that if any of such property
additions are used or useful to the Company in its business as a gas
company or gas utility, the certificate shall state that the cost or
fair value, whichever is lower, of such property additions does not
exceed ten per centum (10%) of the aggregate of (1) all property
additions certified to the Trustee hereunder including the property
additions contained in said certificate (but excluding property
additions certified pursuant to Section 5.23 hereof) and (2) one
hundred sixty-six and two-thirds per centum (166 2/3%) of the
principal amount of the bonds of Series A authenticated by the Trustee
and delivered pursuant to Section 4.02 hereof.
(C) Each officers' certificate delivered to the Trustee pursuant to
subsection (B) of this Section shall be accompanied by:
(1) a certificate or opinion of an engineer, appraiser or
other expert with respect to the fair value to the Company of the
property additions then being certified to the Trustee, and, if
(a) within six months prior to the date of the acquisition
thereof, any property included in such property additions was
used or operated by a person or persons other than the Company
in a business similar to that in which it has been or is to be
used or operated by the Company, and
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(b) the fair value to the Company of such property, as set
forth in such certificate or opinion, is not less than the
greater of (i) Twenty-five Thousand Dollars ($25,000) or (ii)
one per centum (1%) of the aggregate principal amount of the
bonds at the time outstanding,
such certificate or opinion with respect to such property so used or
operated shall be made by an independent engineer, appraiser or other
expert (and the fair value to the Company of such property as stated
in such certificate or opinion shall be used in the accompanying
officers' certificate), and such certificate or opinion shall also
cover the fair value to the Company of all property so used or
operated which shall have been subjected or shall have become subject
to the lien of this Indenture since the commencement of the then
current calendar year and which shall have been included in any
property additions certified to the Trustee and with respect to which
a certificate or opinion of an independent engineer, appraiser or
other expert shall not previously have been furnished; and if the
aggregate of the fair value to the Company, as stated in such
certificate or opinion, of the property previously so certified to the
Trustee and which is required to be covered by such certificate or
opinion of an independent engineer, appraiser or other expert, is less
than the aggregate amount at which such property was previously
certified to the Trustee pursuant to paragraph (5) of subsection (B)
of this Section, the difference shall be treated as a retirement of
bondable property in the accompanying officers' certificate;
(2) in case any property, included in the property additions
then being certified to the Trustee was acquired in whole or in part
through the delivery of shares of stock, a written appraisal of an
independent appraiser or other expert, stating the fair value in cash,
in the opinion of the signer, of such shares of stock at the time of
delivery thereof in payment for, or for the acquisition of, such
property;
(3) all such deeds, indentures supplemental hereto or
instruments of further assurance as in the opinion of counsel,
furnished pursuant to paragraph (4) below, may be necessary to subject
to the lien of this Indenture the property additions then being
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certified to the Trustee pursuant to the provisions of subsection (B)
of this Section; and
(4) an opinion of counsel specifying the deeds, indentures
supplemental hereto or instruments of further assurance necessary to
subject to the lien of this Indenture all the right, title and
interest of the Company in and to the property of the Company (except
property which has been retired) constituting the property additions
then being certified to the Trustee pursuant to the provisions of
subsection (B) of this Section, or stating that no such instruments
are necessary for such purpose, and also stating that in the opinion
of the signer (i) except with respect to property which has been
retired, the Company has title to, or contemporaneously with the
granting of any application in connection with which an officers'
certificate is then being delivered to the Trustee pursuant to the
provisions of subsection (B) of this Section will have title to, the
property constituting such property additions and that this Indenture
is, or upon the delivery of the deeds, indentures supplemental hereto
or instruments of further assurance, if any, specified in said
opinion, will be, a lien upon such property of the Company (except
property which has been retired) subject to no defect in title and
subject to no lien thereon prior to the lien of this Indenture, except
permitted liens, and, if any such property of the Company is located
on any leasehold, stating that the property located on such leasehold
constitutes personal property; and (ii) that the Company has
corporate authority and all necessary permission from governmental
authorities to acquire, own and operate the property constituting such
property additions. Unless such opinion shall show that no consent or
approval of any governmental authority (other than those previously
evidenced to the Trustee) is requisite to the acquisition, ownership
or operation of such property additions, it shall specify and be
accompanied by officially authenticated certificates, or other
documents, by which such consent or approval is or may be evidenced.
SECTION 1.07.
net earnings certificate:
The term "net earnings certificate" shall mean an officers'
certificate stating:
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(A) for a period of any twelve (12) consecutive calendar
months within the fifteen (15) calendar months immediately preceding
the first day of the month in which the application for the
authentication and delivery of the bonds then applied for is made to
the Trustee, the net earnings of the Company, which shall be the
amount stated in subparagraph (I) below minus the amount stated in
subparagraph (II) below and plus the amount (or minus the amount if it
represents a net loss) stated in subparagraph (III) below; provided,
that in no event shall the amount to be added with respect to the
amount stated in subparagraph (III) below exceed ten per centum (10%)
of the balance arrived at by deducting the amount stated in
subparagraph (II) below from the amount stated in subparagraph (I)
below; and specifying for such period:
(I) the gross electric, gas and water operating
revenues of the Company with the principal divisions thereof
(including operating revenues from the operation of any
property acquired within fifteen (15) days preceding, or to
be so acquired concurrently with, the making or granting of
the application in connection with the issue of the bonds
applied for in the application in connection with which such
certificate is made); provided, however, that there shall not
be included in arriving at the amount to be stated pursuant to
this subparagraph (I) any revenues arising from the operation
of any business unit not owned or to be owned by the Company
or not subject to or to be subject to the lien of this
Indenture at the time of the making of such net earnings
certificate (or upon the issue of the bonds then applied for),
nor shall there be included any revenues properly classifiable
as non-operating revenues;
(II) the electric, gas and water operating expenses
of the Company specifying the principal divisions thereof,
including taxes (other than Federal and State income, excess
profits and other taxes measured by or dependent on net
taxable income) assessments, rentals, insurance, actual
charges for current repairs and maintenance, and amounts set
aside or reserved to provide for property retirements or
depreciation, and the amount, if any, by which the minimum
provision for
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property retirements or depreciation for the period of
computation exceeds the amounts so set aside or reserved, but
excluding all interest and sinking fund charges and excluding
any charges to income or otherwise for the amortization of
utility plant account or amounts transferred therefrom and
excluding amortization of debt and stock discount and expense
or premium; provided that there shall be included in arriving
at the amount to be stated pursuant to this subparagraph (II)
all the charges referred to in the foregoing provisions of
this subparagraph (II) applying to property acquired within
fifteen (15) days preceding, or to be acquired concurrently
with, the making or granting of the application in connection
with the issue of the bonds then applied for, but there shall
be excluded in arriving at the amount to be stated pursuant to
this subparagraph (II) all expenses and charges arising from
the operation of any business unit not owned or to be owned by
the Company or not subject to or to be subject to the lien of
this Indenture at the time of the making of such net earnings
certificate (or upon the issue of the bonds then applied for),
and there shall also be excluded all expenses and charges
properly classifiable as non-operating expenses or charges;
and
(III) the aggregate (net income or net loss) of (1)
net non-operating income and (2) net income which in the
opinion of the signers is directly derived from the operation
of any business unit not owned or to be owned by the Company
or not subject to or to be subject to the lien of this
Indenture at the time of the making of such net earnings
certificate (or upon the issue of the bonds then applied for);
(B) the annual interest charges upon (1) all bonds outstanding
hereunder at the date of such certificate except any for the refunding
of which the bonds applied for are to be issued, (2) those then
applied for in the application in connection with which such
certificate is made and those applied for in any other pending
application, and (3) all indebtedness outstanding at the date of such
certificate which is secured by lien for the payment of money or its
equivalent prior to or on a parity with the lien of this Indenture
within the restrictions contained in this
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Indenture other than permitted liens but only to the extent the same
will be outstanding immediately after the authentication of the bonds
then applied for in the application in connection with which such
certificate is made and after the authentication of any other bonds
applied for in any other pending application; and
(C) the "interest earnings requirement", which shall be a
figure equal to two and one-half times the aggregate annual interest
charges specified in subsection (B) of this Section.
The term "business unit" shall not apply to any leased electric, gas
or water facilities operated by the Company as part of its system.
If any of the property owned by the Company at the time of the making
of any net earnings certificate or acquired by the Company within fifteen days
preceding, or to be acquired concurrently with, the making or the granting of
any application in connection with which such net earnings certificate is
delivered to the Trustee, shall consist of property formerly operated by others
and acquired by the Company during or after the period covered by such net
earnings certificate or to be acquired by the Company, as aforesaid, the net
earnings of such property (computed in the manner specified in this Section for
the computation of the net earnings of the Company) during such period or such
part of such period as shall have preceded the acquisition thereof by the
Company, if and to the extent that the same have not otherwise been included
and can be determined, and unless such property shall have been acquired, or is
to be acquired, in exchange or substitution for property the earnings of which
have been included, shall for all purposes of this Indenture be treated as a
part of the net earnings of the Company.
In any application for the authentication and delivery of bonds where
a net earnings certificate is required, if the aggregate principal amount of
bonds then applied for plus the aggregate principal amount of bonds
authenticated and delivered since the commencement of the then current calendar
year (other than those with respect to which a net earnings certificate is not
required or with respect to which a net earnings certificate signed by an
independent public accountant has previously been furnished) is ten per centum
(10%) or more of
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the aggregate amount of the bonds at the time outstanding hereunder, such net
earnings certificate shall be made and signed by an independent public
accountant.
Each net earnings certificate required to be delivered to the Trustee
shall include the statements required by Section 3.01 hereof.
ARTICLE II.
DESCRIPTION, FORM, EXECUTION, REGISTRATION AND EXCHANGE OF BONDS.
SECTION 2.01. The bonds may be issued in one or more series as from
time to time shall be authorized by the Board of Directors of the Company, and
shall be designated generally as the "First Mortgage Bonds" of the Company. The
bonds of each series other than Series A shall have such further particular
designations as the Board of Directors may adopt for such series, and each bond
issued hereunder shall bear upon the face thereof the designation so adopted
for the series to which it belongs.
The bonds of each series and the coupons shall be substantially in the
forms hereinbefore recited for the bonds of Series A, but in the case of other
series with such omissions, variations and insertions as are authorized or
permitted by this Indenture. The definitive bonds of each series shall be
engraved, lithographed or printed, as the Board of Directors may determine.
The bonds and the coupons may contain such specifications, descriptive
words and recitals, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon, as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the bonds
may be listed or to conform to usage.
The bonds of any series other than Series A at the election of the
Board of Directors, as expressed in one or more indentures supplemental hereto,
may contain such terms and conditions, not in
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conflict with the provisions of this Indenture, as may be prescribed by the
Board of Directors, including terms and conditions with respect to: (a) date,
(b) date of maturity, (c) interest rate, (d) interest payment dates, (e) the
place or places for the payment of principal and for the payment of interest,
(f) payment of principal or interest, or both, without deduction for, or with
respect to reimbursement of, taxes, (g) redemption, (h) a sinking, purchase or
similar fund with respect to the bonds of the series, (i) convertibility, (j)
exchangeability, (k) limitation, if any, upon the aggregate principal amount of
bonds of the series which may be issued, (l) whether issuable as coupon bonds
with or without provision for registration as to principal, and whether
issuable as fully registered bonds, and (m) any other provisions not in
conflict with the provisions of this Indenture.
In authorizing the issue of any series of bonds (other than bonds of
Series A), the Board of Directors shall determine and specify substantially the
form of the bonds and coupons, if any, of such series.
All bonds of any one series at any time simultaneously outstanding
hereunder shall be identical in respect of the date of maturity (unless they
are of serial maturities), the place or places of payment of the principal
thereof and interest thereon, the interest rate (unless they are of serial
maturities) and interest payment dates, the terms and rate or rates of
redemption (unless they are of serial maturities), if redeemable, the
provisions (if any) for a sinking, purchase or similar fund for the retirement
of bonds of such series, and the provisions (if any) as to the payment of
principal or interest, or both, without deduction for, or as to the
reimbursement of, taxes and (except for necessary or proper variations between
bonds of different denominations) as to conversion, but bonds of the same
series may be of different denominations and bonds of any series other than
Series A may be of serial maturities and, if of serial maturities, may differ
with respect to maturity date, interest rate and price and terms of redemption.
All coupon bonds of any one series shall be dated as of the same date.
SECTION 2.02. The bonds shall be signed on behalf of the Company by
its President or a Vice-President under its corporate seal which
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shall be attested by its Secretary or an Assistant Secretary and, to the extent
permitted by law, may be in the form of a facsimile of the seal of the Company
and may be impressed, affixed, imprinted or otherwise reproduced on the bonds.
Only such bonds as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee, shall
be secured by this Indenture or be entitled to any right or benefit hereunder.
No bond and no coupon thereunto appertaining shall be or become valid or
obligatory for any purpose until such certificate shall have been duly executed
on such bond. Such certificate by the Trustee upon any bond executed by the
Company shall be conclusive evidence and the only competent evidence that the
bond so authenticated has been duly authenticated and delivered hereunder and
that the holder is entitled to the security and benefit of this Indenture. The
Trustee shall not authenticate or deliver any coupon bond until all matured
coupons thereunto appertaining shall have been detached and cancelled, except
as otherwise provided in Section 2.03 hereof or permitted in Section 2.08
hereof.
In case any officer of the Company who shall have signed any of the
bonds or attested the seal thereon shall cease to be such officer before the
bonds so signed or sealed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such bonds, nevertheless, may be
authenticated and delivered or disposed of as though the person who signed such
bonds or attested the seal thereon had not ceased to be such officer; and any
bond may be signed on behalf of the Company and the seal of the Company may be
attested by such persons as, at the actual date of the execution of the bond,
shall be the proper officers of the Company, although at the date of such bond
any such person was not such officer. The coupons attached to coupon bonds
shall bear the facsimile signature of the present Treasurer or of any future
Treasurer of the Company, and for that purpose the Company may adopt and use
the facsimile signature of any person who shall have been such Treasurer,
notwithstanding the fact that at the time when such coupon bonds shall be
authenticated and delivered or disposed of he shall have ceased to be the
Treasurer of the Company.
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SECTION 2.03. No registered bonds without coupons of any series other
than Series A shall be issued under this Indenture unless the Board of
Directors shall determine that, in the case of any particular series, such
bonds shall be issued and shall cause registered bonds without coupons,
substantially in the form hereinbefore set forth with such changes therein or
modifications thereof as shall be appropriate, in such denominations as shall
be determined by the Board of Directors, to be prepared and delivered to the
Trustee. Any registered bond without coupons of any series may be transferred
at the office or agency of the Company specified for such purpose in the bond
or in any indenture supplemental hereto with respect to the bonds of the
particular series, upon surrender thereof at said office or agency for
cancellation, and thereupon the Company shall issue in the name of the
transferee or transferees, and the Trustee shall authenticate and deliver, a
new registered bond or bonds of the same series and maturity in authorized
denominations, for a like aggregate principal amount. Except as provided in
Section 2.08, every registered bond without coupons shall be dated as of the
date of its issue (except that if any registered bond shall be issued on any
interest payment date it shall be dated as of the day next following such
interest payment date). Every registered bond without coupons shall bear
interest from the interest payment date next preceding the date of such bond
(or, if the date of such bond is prior to the first interest payment date for
the bonds of such series, then from the date from which interest is payable
with respect to the bonds of such series); provided, however, that upon any
transfer or exchange of registered bonds without coupons, if the Company at the
time shall be in default in the payment of interest on the registered bond or
bonds surrendered on such transfer or exchange, the Trustee shall endorse upon
any registered bond or bonds issued upon such transfer or exchange a legend to
the effect that the same bear interest from a specified date, which date shall
be the last interest payment date to which interest has been paid on the
registered bond or bonds so surrendered.
Registered bonds without coupons may, upon surrender thereof at the
aforesaid office or agency of the Company, be exchanged for a like aggregate
principal amount of bonds of like form, in authorized denominations, or of
coupon bonds of the same series and maturity,
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in the denomination of One Thousand Dollars ($1,000) and with coupons
representing interest from the last interest payment date to which interest has
been paid on the registered bonds so surrendered, or for a like aggregate
principal amount of both such registered bonds without coupons and coupon
bonds; provided, however, that the Company shall not be obligated to make any
such exchange until sixty (60) days after the date of receipt by it of notice
of the proposed surrender of such registered bonds.
SECTION 2.04. All coupon bonds issued hereunder shall be transferable
by delivery except while registered as to principal in the manner hereinafter
provided. Any coupon bond issued hereunder may be registered as to principal in
the name of the holder on books of the Company to be kept for that purpose at
the office or agency of the Company specified for such purpose in the bond or
in any indenture supplemental hereto with respect to the bonds of the
particular series, and such registration shall be noted on the bond. After such
registration, no transfer shall be valid unless made on said books by the
registered owner in person, or by his attorney duly authorized in writing, and
similarly noted on the bond; but such bond may be discharged from registration
by being in like manner transferred to bearer, and thereupon transferability by
delivery shall be restored; and such bond may again, from time to time, be
registered or discharged from registration in the same manner. Such
registration, however, shall not affect the negotiability by delivery of the
coupons, but every such coupon shall continue to be transferable by delivery
merely, and shall be and remain payable to bearer, and payment thereof to
bearer shall fully discharge the Company in respect of the interest therein
mentioned, whether or not the bond to which such coupon shall appertain be
registered as to principal. Such registrations, transfers and discharges from
registration shall be under such reasonable regulations as the Company may
prescribe and shall be without expense to the holder or registered owner of the
bond; but any taxes or other governmental charges required to be paid with
respect to the same shall be paid by the party requesting such registration,
transfer or discharge from registration as a condition precedent to the
exercise of the privilege conferred by this Section.
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Coupon bonds of any authorized denominations less than One Thousand Dollars
($1,000), bearing all unmatured coupons, may, upon surrender thereof at the
aforesaid office or agency of the Company in principal amounts aggregating One
Thousand Dollars ($1,000) or any multiple thereof, be exchanged for a like
aggregate principal amount of coupon bonds of the same series and maturity, in
the denomination of One Thousand Dollars ($1,000), bearing all unmatured
coupons. Coupon bonds of any series other than Series A, whether issued upon
original issue or in exchange for registered bonds without coupons, shall not
be exchangeable for registered bonds without coupons unless the Board of
Directors of the Company shall so determine with respect to the bonds of such
series.
SECTION 2.05. In all cases in which the privilege of exchanging bonds
or transferring registered bonds exists and is exercised, the bonds to be
exchanged or transferred shall be surrendered for cancellation at the office or
agency of the Company specified for such purpose in the bonds or in any
indenture supplemental hereto with respect to the bonds of the particular
series, with all unmatured coupons (if any) attached and, in the case of coupon
bonds registered as to principal or registered bonds without coupons,
accompanied by such duly executed instruments of transfer as may be required by
the Company and the Trustee, and the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor the bonds, with appropriate
coupons attached, which the person making the exchange or transfer shall be
entitled to receive.
Every exchange or transfer of bonds under the provisions of this
Article II shall be effected in such manner as may be prescribed by the Board of
Directors, with the approval of the Trustee, and as may be required to comply
with the rules and regulations of any stock exchange upon which the bonds are
listed or are to be listed or to conform to any usage with respect thereto. The
Company shall not be required to make exchanges or transfers of any bond under
any provision of this Article II after the first publication of notice of
redemption of such bond, anything in such bond to the contrary notwithstanding.
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Upon any such exchange of bonds or transfer of registered bonds
without coupons the Company may require the payment of such reasonable charges,
therefor, not exceeding Two Dollars ($2) for each such bond issued, as it may
deem proper, the payment of which, together with any taxes or other
governmental charges required to be paid with respect to such exchange or
transfer, shall be made by the person requesting the same as a condition
precedent to the exercise of the privilege of such exchange or transfer.
SECTION 2.06. In case the Company, pursuant to the provisions of
Article XIII hereof, shall be consolidated with or merged into any other
corporation or shall convey or transfer, subject to the lien of this Indenture,
all or substantially all of the mortgaged and pledged property as an entirety
or substantially as an entirety, and the successor corporation resulting from
such consolidation, or into which the Company shall have been merged, or which
shall have received a conveyance or transfer as aforesaid, shall have executed
with the Trustee and caused to be recorded an indenture pursuant to the
provisions of Section 13.02 hereof, any bonds issued under this Indenture prior
to such consolidation, merger, conveyance or transfer may, from time to time,
at the request of the successor corporation and with the consent of the holders
of such bonds, be exchanged for other bonds of the same series and maturity,
executed in the name and under the seal of the successor corporation, with such
changes in phraseology and form as may be appropriate but in substance of like
tenor as the bonds surrendered for such exchange, and of like principal amount;
and the Trustee, upon the request of the successor corporation, shall
authenticate bonds as specified in such request for the purpose of such
exchange and shall deliver such bonds upon surrender of the bonds so to be
exchanged therefor. All coupon bonds so surrendered and all coupon bonds
delivered in exchange therefor shall be accompanied by all unmatured coupons
appertaining thereto, and all coupon bonds registered as to principal and
registered bonds without coupons so surrendered shall be accompanied by written
instruments of transfer duly executed by the registered holder or his attorney
duly authorized in writing, if deemed necessary by the Trustee. The Trustee
shall forthwith cancel all bonds and coupons so surrendered
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and shall cremate all coupon bonds and coupons so cancelled and deliver a
certificate of such cremation to the Company, and, on the written request of
the Company, shall deliver to the Company all registered bonds without coupons
so cancelled. All bonds so executed in the name and under the seal of the
successor corporation and authenticated and delivered shall in all respects
have the same legal rank and security as the bonds executed in the name of the
Company and surrendered upon such exchange, with like effect as if the bonds so
executed in the name of the successor corporation had been issued,
authenticated and delivered hereunder on the date hereof.
The Company covenants and agrees that, if additional bonds of any
particular series of which bonds are at the time outstanding shall at any time
be issued in any new name, the Company will provide for the exchange of any
bonds of such series previously issued, at the option of and without expense to
the holders, for bonds issued in such new name.
SECTION 2.07. Pending the preparation of definitive bonds of any
series, the Company may execute and the Trustee shall authenticate and deliver
one or more temporary typewritten, printed, lithographed or engraved bonds of
such series, of any denomination or denominations, in bearer form, with or
without one or more coupons and with or without the privilege of registration
as to principal, or in fully registered form, exchangeable or not exchangeable
for temporary bonds of other form or other authorized denominations of such
series, and substantially in the form of the definitive bonds of such series,
but with such omissions, insertions and variations appropriate for temporary
bonds, all as provided in the written order of the Company for the
authentication and delivery thereof. Every such temporary bond shall be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive bonds. The Company shall,
without unnecessary delay and at its own expense, prepare, execute and deliver
to the Trustee, and thereupon, upon the presentation and surrender of any such
temporary bond or bonds, the Trustee shall authenticate and deliver therefor,
definitive bonds of the same series and maturity, for the same aggregate
principal amount as, and in the authorized denomination indicated by, the
holders of the temporary bond or bonds so surrendered.
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All temporary bonds so surrendered for exchange shall be in bearer form or, if
registered, shall be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and to the Trustee, duly executed
by the registered holder or by his duly authorized attorney, with all unmatured
coupons, if any, appertaining thereto. Until so exchanged, the temporary bonds
shall in all respects be entitled to the same benefit and security of this
Indenture as definitive bonds authenticated and delivered hereunder. When and
as interest is paid upon any temporary bond in bearer form but without coupons,
the fact of such payment shall be noted thereon, and interest due on any
temporary bond which is represented by a coupon shall be paid only upon
presentation and surrender of such coupon for cancellation.
Until definitive bonds are ready for delivery, the holder of any
temporary bond or bonds may, with the consent of the Company, exchange the
same, upon the surrender thereof to the Trustee for cancellation, with all
matured coupons, if any, appertaining thereto, for a like aggregate principal
amount of temporary bonds of the same series and maturity, in any other
authorized denomination or denominations indicated by him, bearing all
unmatured coupons, if any.
SECTION 2.08. In case any temporary or definitive bond and any coupons
appertaining thereto shall become mutilated or be destroyed, lost or stolen,
the Company in its discretion may execute, and upon its request the Trustee
shall authenticate and deliver, a new bond (with coupons corresponding to the
coupons, if any, appertaining to the mutilated, destroyed, lost or stolen bond)
of the same series and maturity and of like tenor, in exchange and substitution
for the mutilated bond and its coupons (if any), or in lieu of and substitution
for the bond and its coupons (if any) so destroyed, lost or stolen, or, if any
such bond or any coupon shall have matured or shall be about to mature, instead
of issuing a substituted bond or coupon the Company may pay the same without
surrender thereof. In case of destruction, loss or theft of any bond or coupon,
the applicant for a substituted bond or for such payment shall furnish to the
Company and to the Trustee, in its discretion, evidence to their satisfaction
of the
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destruction, loss or theft of such bond and its coupons (if any) and of the
ownership thereof, and also such security or indemnity as may be required by
the Company and the Trustee to save each of them harmless. The Trustee may
authenticate any such substituted bond and deliver the same with appurtenant
coupons (if any), or the Trustee or any paying agent of the Company may make
any such payment upon the written request or authorization of the Company, and
shall incur no liability to anyone by reason of anything done or omitted to be
done by it in good faith and without negligence under the provisions of this
Section. Upon the issue of any substituted bond, the Company may require the
payment of a sum sufficient to cover any tax or taxes or other governmental
charge and any other expense connected therewith, and also a further sum not
exceeding two dollars ($2) for each bond so issued in substitution.
Any bonds and coupons issued under the provisions of this Section
shall constitute additional original contractual obligations on the part of the
Company and shall be equally and proportionately entitled to the benefit and
security of this Indenture with all other bonds and coupons issued under this
Indenture.
SECTION 2.09. All bonds and coupons surrendered for the purpose of
payment, redemption, exchange or transfer shall, if surrendered to the Company
or any paying agent, be cancelled and delivered to the Trustee, or, if
surrendered to the Trustee, shall be cancelled by it, and no bonds or coupons
shall be issued under this Indenture in lieu thereof except as expressly
permitted by any of the provisions hereof. If the Company shall acquire any of
the bonds, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such bonds unless and until the
same are surrendered to the Trustee for cancellation.
The Trustee shall make appropriate notations in its records in respect
of all the bonds and coupons cancelled by it and shall cremate all coupon bonds
and coupons so cancelled and deliver a certificate of such cremation to the
Company and, on the written request of the Company, shall deliver to the
Company all registered bonds without coupons so cancelled.
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SECTION 2.10. A series of bonds to be issued hereunder and secured
hereby is hereby created, which shall be designated, and distinguished from the
bonds of all other series, by the title "First Mortgage Bonds, Series A, 3%",
elsewhere herein referred to as the "bonds of Series A".
The aggregate principal amount of the bonds of Series A is not limited
except as provided in this Indenture.
The bonds of Series A shall be dated, and shall bear interest from,
July 1, 1950, except as provided in Section 2.03 with respect to registered
bonds without coupons, and shall be due July 1, 1980, and shall bear interest at
the rate of 3 per centum (3%) per annum, payable semi-annually on the first day
of January and the first day of July in each year, until maturity or until the
obligation of the Company with respect to payment of the principal thereof shall
have been discharged. The principal of and the premium (if any) and the interest
on the bonds of Series A shall be payable at the office or agency of the Company
in the City of New Orleans, Louisiana, in such coin or currency of United States
of America as, at the time of payment, shall be legal tender for public and
private debts.
All bonds of Series A shall be redeemable, either at the option of the
Company or pursuant to any provision of this Indenture requiring such
redemption, either as a whole or in part from time to time, at any time prior
to maturity, upon notice published as provided in Section 8.02 hereof, at
least once in each of four (4) successive calendar weeks upon any business day
of each such calendar week, the first publication to be not less than thirty
(30) days and not more than sixty (60) days before such redemption date (or
upon mailing of notice of redemption as provided in the second paragraph of
Section 8.02 hereof in the event such paragraph shall be applicable). If
redeemed by the application of moneys in the Sinking Fund for bonds of Series A
provided for in Section 6.01 of this Indenture or moneys in the Depreciation
Fund provided for in Section 5.07 of this Indenture or by application of moneys
received by the Trustee in connection with any release of property upon
acquisition thereof by any municipal corporation or other governmental
subdivision or governmental body or public authority, the bonds of Series A are
redeemable at the
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redemption prices specified for such redemption in Column A of the schedule
contained in the form of such bonds set forth in the recitals hereof, together
with accrued interest to the date of redemption. If redeemed otherwise than by
the application of such moneys, the bonds of Series A are redeemable at the
redemption prices specified for such redemption in Column B of the schedule
contained in the form of such bonds set forth in the recitals hereof, together
with accrued interest to the date of redemption.
Coupon bonds of Series A shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds without
coupons of Series A shall be issuable in the denomination of $1,000 and any
multiple of $1,000. Bonds of Series A shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
ARTICLE III.
GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS.
SECTION 3.01. Any certificate or opinion of an engineer, appraiser or
other expert required to be delivered to the Trustee under any provision of
this Indenture may be signed by an engineer, appraiser or other expert who is
an officer or employee of the Company, unless under such provision of this
Indenture such certificate or opinion is required to be signed by an
independent engineer, appraiser or other expert. Where any such certificate or
opinion is required to be made by an independent engineer, appraiser or other
expert, such certificate or opinion shall be made by an independent engineer,
appraiser or other expert appointed by the Board of Directors or Executive
Committee of the Company and approved by the Trustee in the exercise of
reasonable care.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include (a) a
statement that the person making such certificate or opinion has read such
covenant or condition, (b) a brief statement as to the nature and
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scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with, and (d) a statement as to
whether or not in the opinion of such person such condition or covenant has
been complied with.
In addition to such other certificates or opinions as may be required
by other provisions of this Indenture, every request or application by the
Company for action by the Trustee shall be accompanied by an opinion of counsel
and an officers' certificate, each such opinion of counsel and officers'
certificate stating that, in the signers' opinion, the conditions precedent, if
any, to such action provided for in this Indenture (including any covenants,
compliance with which constitutes a condition precedent) have been complied
with.
Any officers' certificate and any certificate or opinion of an
engineer, appraiser or other expert may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by counsel,
unless the persons signing such certificate or opinion know that the
certificate or opinion or representations of counsel with respect to the
matters upon which their certificate or opinion may be based as aforesaid are
erroneous or, in the exercise of reasonable care, should have known that the
same were erroneous. Any net earnings certificate may be based upon the books
and records of the Company and upon a certificate or opinion of or
representations by an accountant or accountants or the Treasurer or an
Assistant Treasurer of the Company, unless the persons signing such certificate
know that the books and records of the Company or the certificate or opinion or
representations with respect to the matters upon which the certificate or
opinion may be based as aforesaid are erroneous or, in the exercise of
reasonable care, should have known that the same were erroneous. Any opinion of
counsel may be based, insofar as it relates to factual matters, information
with respect to which is in the possession of the Company, upon a certificate
or opinion of, or representations by, an officer or officers of the Company,
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unless such counsel knows that the certificate or opinion or representations
with respect to the matters upon which his opinion may be based as aforesaid
are erroneous or, in the exercise of reasonable care, should have known that
the same were erroneous.
The same officers of the Company, or the same engineer, appraiser, or
other expert, or the same counsel or other person, as the case may be, need not
certify to all of the matters required to be certified under any of the
provisions hereof, but different officers, engineers, appraisers, other
experts, counsel or other persons may certify to different facts respectively.
Where any person or persons are required to make, give or execute two or more
orders, requests, certificates, opinions or other instruments under this
Indenture, any such orders, requests, certificates, opinions or other
instruments may be consolidated and form one instrument.
The acceptance by the Trustee of a certificate or opinion shall be
sufficient evidence that the signer or the signers have been approved by or are
satisfactory to the Trustee, as the case may be, within the meaning of this
Indenture, unless the Trustee shall give written notice to the Company that the
signer or signers have not been approved by or are not satisfactory to the
Trustee, as the case may be; and where, under any provision of this Indenture,
a certificate of an independent engineer, appraiser or other expert is
required, such requirement, so far as the validity of action taken in reliance
thereon is concerned, shall be deemed to have been complied with if the
Trustee shall have received a certificate made by the engineer, appraiser or
other expert, as the case may be, who shall have been so approved by the
Trustee for such purpose, but nothing contained in this paragraph shall relieve
the Trustee of its obligation to exercise reasonable care with respect to the
approval of independent engineers, appraisers or other experts who may furnish
opinions or certificates to the Trustee pursuant to any provision of this
Indenture.
ARTICLE IV.
ISSUANCE OF BONDS.
SECTION 4.01. The aggregate principal amount of bonds which may be
secured by this Indenture shall be such aggregate principal
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amount as may now or hereafter from time to time be authenticated and delivered
under the provisions hereof, but not exceeding $100,000,000 aggregate principal
amount.
Nothing in this Indenture contained shall limit the power of the Board
of Directors or Executive Committee of the Company to fix the price at which
the bonds authenticated and delivered under any of the provisions of this
Indenture may be issued, exchanged, sold or disposed of, but any or all of said
bonds may be issued, exchanged, sold or disposed of upon such terms and for
such considerations as the Board of Directors or Executive Committee of the
Company may deem fit, subject to any provisions of law in respect thereof.
SECTION 4.02. Bonds of Series A for the aggregate principal amount of
Five Million Five Hundred Thousand Dollars ($5,500,000) shall forthwith be
executed by the Company and delivered to the Trustee and shall be authenticated
by the Trustee and delivered, either before or after the filing or recording of
this Indenture, at one time or from time to time, in accordance with the order
or orders of the Company, evidenced by a writing or writings signed in the name
of the Company by its President or one of its Vice-Presidents and its Treasurer
or one of its Assistant Treasurers.
SECTION 4.03. Bonds of any one or more series may from time to time be
executed by the Company and delivered to the Trustee, and shall be
authenticated by the Trustee and delivered from time to time, to an aggregate
principal amount not exceeding sixty per centum (60%) of the bondable value of
property additions.
Prior to the authentication and delivery of any bonds under this
Section, there shall in each case have been delivered to the Trustee,
(1) the instruments required by Section 4.06 hereof;
(2) an officers' certificate of bondable value of property
additions, meeting the requirements of subsection (B) of Section 1.06
hereof, accompanied by the instruments required by subsection (C) of
Section 1.06; and
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(3) a net earnings certificate meeting the requirements of
Section 4.07 hereof.
SECTION 4.04. Except as may be otherwise provided in any supplemental
indenture, bonds of any one or more series may from time to time be executed by
the Company and shall be authenticated by the Trustee and delivered from time
to time to an aggregate principal amount not exceeding the aggregate principal
amount of any bonds theretofore authenticated and delivered under this
Indenture which have been cancelled or delivered to the Trustee for
cancellation (except bonds surrendered for the purpose of exchange, transfer or
substitution pursuant to Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 17.04
hereof or bonds surrendered for conversion into stock or other securities, or
bonds deposited with the Trustee pursuant to, or in satisfaction of, or paid,
purchased or redeemed pursuant to any sinking, purchase, improvement, or other
similar fund provided for the bonds of any series) or for the payment or
redemption of which funds in the necessary amount shall have been or shall
concurrently be deposited with or shall be held by the Trustee in trust with
irrevocable direction so to apply the same, subject to the provisions of
Section 15.04 hereof, and to the provision of any sinking, purchase,
improvement, or other similar fund provided for the bonds of any series,
(provided that, if such bonds are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been published or otherwise given as
required by this Indenture and the terms of such bonds, or provision
satisfactory to the Trustee shall have been made for such notice) and which have
not theretofore been made the basis for the authentication and delivery of bonds
or the withdrawal, use or application of cash under any provision of this
Indenture or for a credit pursuant to Section 5.07 or Section 6.01 hereof.
Prior to the authentication and delivery of any bonds under this
Section, upon the basis of any such bonds so cancelled or delivered to the
Trustee for cancellation or so to be paid or redeemed, there shall in each case
have been delivered to the Trustee:
(a) the instruments required by Section 4.06 hereof;
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(b) an officers' certificate,
(i) describing the bonds so cancelled or delivered to the
Trustee for cancellation or so to be paid or redeemed,
(ii) stating that such bonds were not surrendered pursuant
to Sections 2.03, 2.04, 2.05, 2.07, 8.04 or 17.04, or
surrendered for conversion into stock or other securities, or
deposited with the Trustee pursuant to or in satisfaction of
any sinking, purchase, improvement, or other similar fund
provided for the bonds of any series, and were not and are not
to be purchased, paid or redeemed by the use of cash deposited
with the Trustee pursuant to any sinking, purchase,
improvement, or other similar fund provided for the bonds of
any series,
(iii) stating that such bonds have not theretofore been made
the basis for the authentication and delivery of bonds or the
withdrawal, use or application of cash under any provision of
this Indenture or for a credit pursuant to Section 5.07 or
Section 6.01 hereof, and
(iv) stating separately the principal amount of all such
bonds, if any, which have been authenticated and delivered by
the Trustee but which have not been issued by the Company and
the interest rate borne by each thereof not so issued;
(c) either (i) the particular bonds so cancelled or delivered
to the Trustee for cancellation together with all unmatured coupons,
if any, appertaining thereto, or (ii) moneys in trust in the necessary
amount for the payment or redemption thereof together with proof
satisfactory to the Trustee that such notice of such redemption shall
have been published or otherwise given, or provision satisfactory to
the Trustee shall have been made for such notice; and
(d) in case any of such bonds shall have ceased to be
outstanding prior to the authentication and delivery of the bonds then
applied for and during the intervening period an officers' certificate
with respect to net earnings of the Company shall have been delivered
to the Trustee pursuant to Section 4.03 or 4.05
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hereof in which the annual interest charges on any such bond which
shall have so ceased to be outstanding shall not have been included,
or in case the interest rate borne by any of said bonds which have
been authenticated and delivered by the Trustee but have not been
issued by the Company is shown by the officers' certificate provided
for in paragraph (b) of this Section to be less than the interest rate
to be borne by the bonds the authentication and delivery of which are
then applied for, then there shall also be furnished to the Trustee a
net earnings certificate meeting the requirements of Section 4.07
hereof. Bonds issued by the Company merely by way of pledge shall not
be deemed to have been issued for the purposes of this paragraph (d).
SECTION 4.05. Bonds of any one or more series may from time to time be
executed by the Company and shall be authenticated by the Trustee and delivered
from time to time upon deposit with the Trustee by the Company of cash equal to
the aggregate principal amount of the bonds so requested to be authenticated
and delivered and upon delivery to the Trustee of:
(1) the instruments required by Section 4.06 hereof; and
(2) a net earnings certificate meeting the requirements of
Section 4.07 hereof.
All cash so deposited with the Trustee shall be held by the Trustee as
part of the mortgaged and pledged property.
Any cash so deposited with the Trustee may be withdrawn by the Company
from time to time in an amount equal to the principal amount of each bond to
the authentication and delivery of which the Company shall then be entitled.
Prior to the withdrawal of any such cash there shall, in each case have been
delivered to the Trustee:
(a) a written order of the Company for said cash evidenced by
a writing signed in the name of the Company by its President or one of
its Vice-Presidents and its Treasurer or one of its Assistant
Treasurers;
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(b) a resolution of the Board of Directors of the Company
authorizing the withdrawal of such cash; and
(c) an officers' certificate stating that the Company is not,
to the knowledge of the signers, in default in the performance of any
of the covenants on its part to be performed under this Indenture;
and the Company shall comply with all applicable provisions of this Article
(except the provisions of Sections 4.06 and 4.07 hereof) relating to the
authentication and delivery of the bonds on which the withdrawal of such cash
is based. Any withdrawal of cash under this Section shall be in lieu of the
right of the Company to the authentication and delivery of the bonds on which
it is based.
Any cash so deposited with the Trustee may also be used or applied in
the manner, for the purposes and subject to the conditions provided in
paragraphs (2) and (3) of subsection (A) of Section 9.06 hereof.
SECTION 4.06. Prior to the authentication and delivery of any bonds
under Sections 4.03, 4.04 or 4.05 hereof there shall, in each case, be
delivered to the Trustee:
(1) a written order of the Company for said bonds evidenced by
a writing signed in the name of the Company by its President or one of
its Vice-Presidents and its Treasurer or one of its Assistant
Treasurers;
(2) a resolution of the Board of Directors of the Company
requesting the Trustee to authenticate and deliver a specified
principal amount of bonds of a specified series and, in the case of
the creation of a new series of bonds, determining the provisions and
form of the bonds of such series as provided in Section 2.01 hereof;
(3) in case of the creation of a new series of bonds, an
indenture supplemental hereto which shall set forth substantially the
provisions and form of the bonds of such series as so determined;
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(4) an officers' certificate stating that the Company is not,
to the knowledge of the signers, in default in the performance of any
of the covenants on its part to be performed under this Indenture;
(5) an opinion of counsel stating that the issuance of the
bonds, the authentication and delivery of which is then applied for,
will not cause the then limit of indebtedness, if any, of the Company
permitted by this Indenture but not exceeding $100,000,000. aggregate
principal amount, to be exceeded and has been authorized by the
Company and has been authorized or approved or consented to by any and
all governmental bodies and authorities, the authorization, approval
or consent of which is requisite to the legal issuance of such bonds,
or that no such authorization, approval or consent is required, and
stating that, when executed by the Company and authenticated and
delivered by the Trustee and issued by the Company, such bonds will be
valid and binding obligations and will be secured by the lien of this
Indenture; and
(6) a certified copy of any order or other writing evidencing
each such authorization, approval or consent to the issuance of such
bonds as may be shown by said opinion of counsel to be requisite.
SECTION 4.07. No bonds shall be authenticated and delivered under
Section 4.03 or 4.05 hereof (or under Section 4.04 hereof in case the
conditions specified in paragraph (d) thereof respectively shall be applicable)
unless as shown by a net earnings certificate the net earnings of the Company
for the period therein referred to shall have been not less than the interest
earnings requirement as defined in Section 1.07 hereof.
ARTICLE V.
PARTICULAR COVENANTS OF THE COMPANY.
The Company hereby covenants as follows:
SECTION 5.01. That it is lawfully seized and possessed of all the
property constituting the mortgaged and pledged property at the date
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of the execution of this Indenture; that it will maintain and preserve the lien
of this Indenture so long as any of the bonds issued hereunder are outstanding;
that it has good right and lawful authority to mortgage and pledge said
property, as provided in and by this Indenture and that said property is not
subject to any lien prior in lien to the lien of this Indenture except (a)
permitted liens and (b) the lien of the indenture of the Company dated as of
January 1, 1941, as supplemented. The Company agrees that, prior to or
simultaneously with the authentication and delivery of any bonds hereunder, the
Company will have (i) duly elected, by resolution of the Board of Directors of
the Company, to redeem on or before July 12, 1950, in accordance with the
provisions of said indenture, all the bonds outstanding thereunder at the date
of the authentication and delivery of the initial issue of the bonds of Series
A and that no additional bonds will be issued thereunder, (ii) deposited with
the trustee under said indenture, cash sufficient for such redemption of such
bonds, in trust, and accompanied by irrevocable written instructions to apply
the same to and effect such redemption, together with irrevocable written
instructions to publish, or complete publication of, notice of such redemption
in accordance with the provisions of said indenture, in lieu of the publication
of notice of redemption as hereinabove provided, the Company may, if permitted
by the indenture, as amended, securing such bonds, give such other notice as is
therein permitted or may obtain written consents waiving such notice of
redemption signed by the holders of all of the bonds outstanding under the
indenture, as amended, and (iii) procured the delivery to the Trustee of
instruments of satisfaction and discharge of (or powers of attorney to satisfy
of record) said indenture and the indentures supplemental thereto or the
deposit in escrow of such instruments of satisfaction and discharge (or such
powers of attorney) to be delivered to the Trustee upon completion of
publication of such notices of redemption. Promptly after the receipt by the
Trustee of such instruments of satisfaction and discharge (or such powers of
attorney to satisfy of record) the Company will cause the same to be recorded
(or will cause such indenture and the indentures supplemental thereto to be
satisfied of record) in all places in which said indenture and the indentures
supplemental thereto have been
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recorded. The Company further agrees that it will as soon as practicable
deliver to the Trustee an opinion of counsel to the effect that said indenture
and the indentures supplemental thereto have been satisfied and discharged of
record.
SECTION 5.02. That it will duly and punctually pay or cause to be paid
the principal of and interest and premium, if any, on all the bonds outstanding
hereunder, according to the terms thereof. As the coupons appertaining to said
bonds are paid they shall be cancelled. The Company may require the holder of
each bond or coupon to furnish such evidence as will enable the Company to
determine whether it is required by law to deduct or retain any tax or taxes on
the principal or premium or interest payable. The Company will not directly or
indirectly extend or assent to the extension of the time for payment of any
coupon or claim for interest on any of the bonds secured hereby, and will not
directly or indirectly be a party to or approve of any arrangement for any such
extension by purchasing such coupons or claims or in any other manner.
SECTION 5.03. That it will maintain an office or agency in the City of
New Orleans, Louisiana, while any bonds are outstanding hereunder, where
notices, presentations and demands to or upon it in respect of this Indenture
or said bonds or the coupons appertaining thereto, may be given or made; that
it will maintain an office or agency for the payment of the principal of and
interest on any bonds at the time outstanding in any place or places where such
principal or interest shall be payable; that it will keep books for the
registration and transfer of bonds at an office or agency in such place or
places as shall be specified in said bonds, or in any indenture supplemental
hereto with respect thereto, as the place or places where said bonds are
registerable or transferable: that such books shall be open to inspection by
the Trustee at all reasonable times; and that it will lodge from time to time
with the Trustee notice of designation and of any change of any such office or
agency. In the event that the Company shall at any time fail to designate and
maintain an office or agency for any such purposes required to be maintained in
the City of New Orleans, Louisiana, the principal office of the
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Trustee shall be conclusively deemed to be the agency of the Company in that
city for such purposes.
SECTION 5.04. (A) That, if the Company shall appoint a paying agent
other than the Trustee, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such paying agent shall agree with the
Trustee, subject to the provisions of this Section, (1) that such paying agent
will hold in trust for the benefit of the holders of the bonds or of the
coupons for interest thereon, as the case may be, or of the Trustee all sums
held by such paying agent for the payment of the principal of (and premium, if
any) or interest on the bonds (whether such sums have been so paid to such
paying agent by the Company or any other obligor on the bonds); and (2) that
such paying agent will give the Trustee notice of any default by the Company or
any other obligor on the bonds in the making of any deposit with it for the
payment of the principal of (and premium, if any) or interest on the bonds, and
of any default by the Company in the making of any such payment. Such paying
agent shall not be obligated to segregate such sums from other funds held in
trust by such paying agent except to the extent required by law.
(B) That if the Company shall act as its own paying agent, it will, on
or before each due date of the principal (and premium, if any) or interest on
the bonds, set aside and segregate and hold in trust for the benefit of the
holders of the bonds or of the coupons for interest thereon, as the case may
be, or of the Trustee a sum sufficient to pay such principal (and premium, if
any) or interest so becoming due, and will notify the Trustee of such action or
of any failure to take such action.
(C) Anything in this Section to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a release or satisfaction
of this Indenture, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by it or any paying agent as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
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(D) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust, as provided in this Section, is subject to the
provisions of Article XV hereof.
SECTION 5.05. That it will pay all taxes, assessments and other
governmental charges lawfully levied or assessed upon the mortgaged and pledged
property or upon any part thereof or upon any income therefrom or upon the
interest of the Trustee in the mortgaged and pledged property when the same
shall become due and payable; that it will duly observe and conform to all
valid requirements of any governmental authority relative to any mortgaged and
pledged property and all covenants, terms and conditions upon or under which
any of such properties are held; that it will not suffer any lien, charge or
encumbrance to be hereafter created or to continue upon the mortgaged and
pledged property, or upon any part thereof, or upon any income therefrom, prior
to the lien of these presents, other than permitted liens, and, in the case of
property hereafter acquired, permitted liens and unfunded liens thereon within
the limits specified in Section 5.15 hereof; that within four months after the
accruing of any lawful claims or demands for labor, materials, supplies or
other objects, which if unpaid might by law be given precedence over the lien
of this Indenture as a lien or charge upon any of the mortgaged and pledged
property or the income thereof, it will pay or cause to be discharged or make
adequate provisions to satisfy or discharge the same; provided, however, that
unless the security afforded by this Indenture would thereby, in the opinion of
the Trustee, be materially affected, nothing in this Section contained shall
require the Company to pay any such tax, assessment or governmental charge, or
to observe or conform to any requirement of governmental authority or to cause
to be paid or discharged, or to make provision for, any such lien or charge, so
long as the validity thereof shall be contested in good faith and by
appropriate legal proceedings and if adequate security for the payment or
discharge of such tax assessment, charge or lien shall be provided for by the
Company.
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SECTION 5.06. That it will keep all the mortgaged and pledged property
insured against loss or damage, to the extent that property of similar
character is usually so insured by companies similarly situated and operating
like properties, by insurance companies believed by the Company to be
responsible, any loss, except as to materials and supplies and except any loss
less than Ten Thousand Dollars ($10,000), to be made payable to the Trustee as
the interest of the Trustee may appear (or to the trustee or other holder of
any unfunded lien bonds, if required by the terms thereof and to the Trustee as
its interest may appear). In case of any such payment to any such trustee or
other holder of any unfunded lien bonds the Company will furnish the Trustee
with the certificate of such trustee or other holder that it has received
payment. The Company will deliver to the Trustee promptly after the execution
of this Indenture and on or before April 30 of each year beginning with the
year 1951 an officers' certificate setting forth a description of all insurance
policies then outstanding and in force upon the aforesaid property, or any part
thereof, including the names of the insurance companies which have issued the
policies, the maturities and amounts thereof, and the provisions of the
respective policies with respect to payment of losses thereunder.
All moneys received by the Trustee pursuant to the provisions of this
Section shall be held by the Trustee as part of the mortgaged and pledged
property and shall be paid by it to the Company to reimburse the Company for an
equal amount spent in the rebuilding or renewal of the property destroyed or
damaged, or in the construction of other property subject to the lien of this
Indenture (which property shall be bondable property if the property destroyed
or damaged was bondable property), upon receipt by the Trustee of an officers'
certificate stating the amount so expended and the nature of such renewal or
rebuilding or construction and requesting such reimbursement, together with an
opinion of counsel that the property so rebuilt or renewed or constructed is
subject to the lien hereof to the same extent as was the property so lost or
damaged, and a certificate or opinion of an engineer, appraiser or other expert
with respect to the fair value to the Company of the property so rebuilt or
renewed or constructed; and if
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(a) within six months prior to the date of the acquisition
thereof by the Company, such property has been used or operated by a
person or persons other than the Company in a business similar to that
in which it has been or is to be used or operated by the Company, and
(b) the fair value to the Company of such property, as set
forth in such certificate or opinion, is not less than the greater of
(i) Twenty-five Thousand Dollars ($25,000) or (ii) one per centum (1%)
of the aggregate principal amount of the bonds at the time
outstanding.
such certificate or opinion shall be made by an independent engineer, appraiser
or other expert. Any such money not so applied within eighteen months after its
receipt by the Trustee, or in respect of which notice in writing of intention
to apply the same to the work of rebuilding or renewal or construction then in
progress and uncompleted shall not have been given to the Trustee by the
Company within such eighteen months, or which the Company shall at any time
notify the Trustee is not to be so applied, may thereafter be withdrawn, used
or applied in the manner and for the purposes and subject to the conditions
provided in Section 9.06 hereof.
The Company covenants that all money directly received by it pursuant
to the provisions of this Section will be spent in the rebuilding or renewal of
the property destroyed or damaged, or in the construction of other property,
subject to the lien of this Indenture (which property shall be bondable
property if the property destroyed or damaged was bondable property), or will
be deposited with the Trustee to be held and disposed of by the Trustee as in
the case of money directly received by the Trustee pursuant to the provisions
of this Section; and the Company covenants that on or before April 30 in each
year beginning with the year 1951 it will deliver to the Trustee an officers'
certificate stating, with respect to the six months' period ended December 31,
1950 or with respect to the calendar year ended December 31 of any year
subsequent to 1950, as the case may be, that all money directly received by the
Company pursuant to the provisions of this Section has been spent in the
rebuilding or renewal
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of the property destroyed or damaged, or in the construction of other property
subject to the lien of this Indenture, or has been deposited with the Trustee,
or with the trustee or other holder of any unfunded lien bonds if required by
the terms hereof.
SECTION 5.07. That (a) it will at all times maintain, preserve and
keep the mortgaged and pledged property, with the appurtenances and every part
and parcel thereof, in thorough repair, working order and condition and
equipped with suitable equipment and appliances; (b) it will make regular
charges to expense for property retirements or depreciation (which in the
aggregate shall not be less than the minimum provision for property retirements
or depreciation determined as provided in Section 1.05 hereof), and from time
to time make all needful and proper repairs, retirements, renewals and
replacements of the mortgaged and pledged property, so that at all times the
value of the security for the bonds issued hereunder and the efficiency of said
properties shall be fully preserved and maintained; (c) it will not charge to
its property, plant and equipment accounts any expenditures which are properly
chargeable to maintenance or repairs or to any other expense account in
accordance with the requirements of any system of accounting with which the
Company is then required to comply in accordance with the rules, regulations
and orders of the regulatory commission or commissions having jurisdiction or
supervisory authority over its accounts, or, if there be no such requirements
in accordance with sound accounting practice, and (d) it will promptly classify
as retired all property that has permanently ceased to be used or useful in the
Company's business. Nothing in this Section or elsewhere in this Indenture
contained shall be construed to prevent the Company from ceasing to operate any
of its plants or any other property, if, in the judgment of the Board of
Directors of the Company, it is advisable not to operate the same and the
operation thereof shall not be essential to the maintenance and continued
operation of the rest of the mortgaged and pledged property, and the security
afforded by this Indenture will not be substantially impaired by the
termination of such operation.
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Without in anywise limiting the foregoing, the Company covenants that
the aggregate amount applied by it subsequent to June 30, 1950, for property
additions will as of the end of each calendar year, commencing with the year
1950, equal the aggregate of the minimum provision for property retirements or
depreciation, determined as provided in Section 1.05 hereof, for the period
subsequent to June 30, 1950, and ending December 31, 1950, and for each
calendar year subsequent to December 31, 1950; or that, if at the end of any
calendar year, commencing with the year 1950, the Company has not subsequent to
June 30, 1950, and up to the end of such calendar year applied for such
purposes an amount which is equal to the aggregate of the minimum provision for
property retirements or depreciation for the period subsequent to June 30,
1950, and ending December 31, 1950, and for each calendar year subsequent to
December 31, 1950, it will, on or before the next succeeding April 30, to the
extent of the difference, deposit cash with the Trustee for the credit of a
fund, sometimes herein referred to as the "depreciation fund"; provided,
however, that there shall be credited against the amount of cash so required to
be deposited with the Trustee the principal amount of bonds authenticated and
delivered hereunder which might then be made the basis for the authentication
and delivery of bonds under the provisions of Section 4.04 hereof and which the
Company then elects to make the basis of a credit under this Section.
On or before April 30 of each year beginning with the year 1951,
concurrently with the delivery to the Trustee in each such year of the annual
officers' certificate of bondable value of property additions, the Company
shall deliver to the Trustee a depreciation certificate which shall be dated
within thirty (30) days of the date of delivery to the Trustee and shall state:
(1) the minimum provision (plus or minus) for property
retirements or depreciation for the period subsequent to June 30,
1950, and prior to the January 1 next preceding the date of such
depreciation certificate;
(2) the amount (plus or minus) specified pursuant to
paragraph (1) in the depreciation certificate filed in the preceding
year;
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(3) the difference between the amount specified in
paragraph (1) above and the amount specified in paragraph (2) above;
(4) the amount applied for property additions, subsequent
to June 30, 1950, and prior to the January 1 next preceding the date
of such depreciation certificate;
(5) the amount specified pursuant to paragraph (4) in the
depreciation certificate filed in the preceding year, if any;
(6) the difference between the amount specified in
paragraph (4) above and the amount specified in paragraph (5) above;
(7) any available depreciation credit, as hereinafter
defined, and the computation thereof;
(8) the depreciation credit or unsatisfied balance, as
hereinafter defined.
The term "depreciation credit" shall mean the excess, if any, of the
sum of the amounts stated pursuant to paragraphs (6) and (7) above over the
amount stated pursuant to paragraph (3) above. The term "available depreciation
credit" shall mean the amount of the depreciation credit, if any, stated in
paragraph (8) of the last depreciation certificate theretofore filed, less the
amount of cash thereafter withdrawn upon the basis of such depreciation credit
as hereinafter in this Section provided.
The term "unsatisfied balance" shall mean the excess, if any, of the
amount stated pursuant to paragraph (3) above over the sum of the amounts
stated pursuant to paragraphs (6) and (7) above.
The term "depreciation certificate" shall mean an officers'
certificate filed by the Company with the Trustee pursuant to this Section.
In case any depreciation certificate shows an unsatisfied balance, the
Company covenants that it will, concurrently with the filing of such
certificate, satisfy such unsatisfied balance by depositing cash with the
Trustee; provided, however, that there shall be credited against the amount of
cash so required to be deposited with the Trustee the principal amount of bonds
authenticated and delivered hereunder
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which might then be made the basis for the authentication and delivery of
bonds under the provisions of Section 4.04 hereof and which the Company then
elects to make the basis of a credit under this Section. In case credit under
the provisions of this Section is applied for, as aforesaid, upon the basis of
bonds authenticated and delivered hereunder, the Company shall deliver to the
Trustee an officers' certificate stating the aggregate principal amount of
bonds authenticated and delivered hereunder which might then be made the basis
for the authentication and delivery of bonds under the provisions of Section
4.04 hereof and which the Company then elects to make the basis of a credit
under this Section, and shall comply with the provisions of Section 4.04 hereof
except the provisions therein relating to Section 4.06 hereof. Any credit under
this Section shall be in lieu of the right of the Company to the authentication
and delivery of bonds on the basis of bonds authenticated and delivered
hereunder which are made the basis of such credit.
All cash deposited by the Company with the Trustee pursuant to the
covenants set forth in this Section shall be held by the Trustee as part of the
mortgaged and pledged property but may, at any time or from time to time
during the next succeeding three years, be withdrawn by the Company in an
amount equal to any available depreciation credit upon delivery to the Trustee
of the written order of the Company evidenced by a writing signed in the name
of the Company by its President or one of its Vice-Presidents and its Treasurer
or one of its Assistant Treasurers and of an officers' certificate stating that
the Company is not, to the knowledge of the signers, in default in the
performance of any of the covenants on its part to be performed under this
Indenture. If such cash shall not be so withdrawn within the next succeeding
three years after the same shall have been so deposited by the Company with the
Trustee, it shall thereafter be used or applied by the Trustee in the manner,
for the purposes and subject to the conditions provided in paragraphs (2) and
(3) of subsection (A) of Section 9.06 hereof.
In addition to the annual depreciation certificate, the Company at its
election may during any calendar year file its depreciation certificate or
certificates for a period or periods other than the entire calendar
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105
year, within four (4) months after the close of such period or periods, and in
each case all of the provisions of this Section 5.07 shall apply, but, where
applicable, to the period in question instead of to the calendar year. In cases
where such interim certificates are filed covering periods of less than a
calendar year, the annual certificate for that year shall cover only the
remaining portion of the year not included in such interim certificate.
Subject to the provisions of Sections 14.02 and 14.03 hereof, the
Trustee may accept any depreciation certificate and any other documents
delivered to it under this Section as conclusive evidence of any matter or fact
therein set forth, and, subject as aforesaid, shall not incur any liability or
responsibility for any action taken or omitted to be taken in reliance
thereon.
SECTION 5.08. That it will, subject to the provisions of the last
sentence of the first paragraph of Section 5.07 hereof and of Article XIII
hereof, at all times maintain its corporate existence and right to carry on
business, and that it will take such action as may be necessary or advisable to
preserve and maintain its right to conduct its business in the State or States
where it shall be conducting its business and will use its best efforts to
procure and maintain in force and effect such franchises, ordinances, permits
or other grants by or contracts with any municipal, county, state or other
governmental authority as shall be required for such purpose.
SECTION 5.09. That if it shall fail to perform any covenants contained
in Sections 5.05, 5.06 or 5.08 hereof, the Trustee may make advances to perform
the same in its behalf, but, subject to the provisions of Sections 14.02 and
14.03 hereof, shall be under no obligation so to do unless requested so to do
by the holders of not less than a majority in principal amount of the bonds
then outstanding hereunder and furnished with funds adequate for the purpose
and for the payment of any expense incurred in connection with such
performance, and all sums so advanced shall be at once repayable by the
Company, and shall bear interest at the rate of six per centum (6%) per annum
until paid, and all sums so advanced with the interest thereon shall be secured
hereby, having the benefit of the lien hereby created in
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priority to the indebtedness evidenced by the bonds and coupons issued
hereunder, but no such advance shall be deemed to relieve the Company from
any default hereunder.
SECTION 5.10. That it will execute and deliver such further
instruments and do such further acts as may be necessary or proper to carry out
more effectually the purposes of this Indenture, and to make subject to the
lien hereof any property whether now owned or hereafter acquired and intended
to be covered hereby, and to transfer to any new trustee or trustees or
co-trustee or co-trustees the estate, powers, instruments or funds held in
trust hereunder.
SECTION 5.11. That it will cause this Indenture, and each supplemental
indenture or instrument purporting to create a lien upon mortgaged and pledged
property to secure the bonds, to be promptly recorded and filed and re-recorded
and refiled in such manner and in such places as may be required by law in
order to fully make effective and maintain the lien intended to be created
thereby and to preserve and protect the security of the bondholders and all
rights of the Trustee, and that it will furnish to the Trustee:
(1) Promptly after the execution and delivery of this
Indenture and of each supplemental indenture or other instrument
purporting to create such lien, an opinion of counsel either stating
that in the opinion of such counsel this Indenture or such
supplemental indenture or instrument has been properly recorded and
filed so as to make effective the lien intended to be created thereby,
and reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary, to make such lien
effective, and
(2) On or before April 30 of each year, beginning with
the year 1951, an opinion of counsel either stating that in the
opinion of such counsel such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture and of
each supplemental indenture or other instrument purporting to create
such lien as is necessary to maintain the lien thereof, and reciting
the details of such action, or stating that in the opinion of such
counsel no such action is necessary to maintain such lien.
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It shall be a compliance with paragraphs (1) and (2) of this Section
if (a) the opinion of counsel therein required to be delivered to the Trustee
shall state (i) that the indentures or other instruments which may be the
subject matter of any such opinion have been received for recordation or filing
or re-recording or refiling in each jurisdiction in which in the opinion of
such counsel they are respectively required to be recorded or filed or
re-recorded or refiled and (ii) that, in the opinion of such counsel, no further
action is necessary to make effective the lien intended to be created by such
indentures or other instruments, and (b) such opinion is delivered to the
Trustee within such time, following the date of the execution and delivery of
the respective indentures or other instruments which may be the subject matter
of such opinion, as shall be practicable, having due regard to the number and
distance of the jurisdictions in which the same are required to be recorded or
filed or re-recorded or refiled.
SECTION 5.12. That books of record and account will be kept, in which
full, true and correct entries will be made, of all dealings or transactions
of, or in relation to, the plants, properties, business and affairs of the
Company, and that all books, documents and vouchers relating to the plants,
properties, business and affairs of the Company shall at all reasonable times
be open to the inspection of such reputable accountant or other agent of
recognized standing as the Trustee may from time to time designate, and that
the Company will bear all expenses of any such inspection.
SECTION 5.13. That it will not issue, or permit to be issued, any
bonds hereunder in any manner other than in accordance with the provisions of
this Indenture and that it will faithfully observe and perform all the
conditions, covenants and requirements of this Indenture and of all indentures
supplemental hereto and of the bonds issued hereunder.
SECTION 5.14. That upon the cancellation and discharge of any unfunded
lien upon property of the Company, it will cause any cash or securities held by
the trustee or other holder of such unfunded lien to be deposited with the
Trustee hereunder (unless such cash or securities are required to be deposited
with the trustee or other holder
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of some other unfunded lien) to be held and disposed of by it in the manner
provided in Article IX hereof. That it will not apply, on the basis of property
additions under any provision of any unfunded lien, for the withdrawal of cash
deposited, in connection with the release of property from the lien of this
Indenture, with the trustee or other holder of the unfunded lien securing such
unfunded lien bonds unless such cash so withdrawn shall be deposited with the
Trustee hereunder, to be held and disposed of by it in the manner provided by
Article IX hereof.
SECTION 5.15. That it will not acquire any property which at the time
of acquisition thereof shall be or become subject to any unfunded lien or
liens, if, immediately subsequent to any such acquisition, the amount of
outstanding unfunded lien bonds would exceed fifteen per centum (15%) of the
principal amount of bonds at the time outstanding under this Indenture.
SECTION 5.16. That it will not permit any default in the payment, when
the same becomes due, of principal of, or premium, if any, or interest on any
outstanding unfunded lien bonds to continue beyond the period of grace, if any,
specified in the unfunded lien securing the same and that it will not permit
the amount of unfunded lien bonds outstanding to be increased unless such
unfunded lien bonds representing such increase shall be issued in replacement
of or in exchange for outstanding unfunded lien bonds on the exercise by a
holder or holders of such outstanding unfunded lien bonds of a right contained
in the unfunded lien securing the same to make such replacement or exchange.
SECTION 5.17. That it will, whenever necessary to avoid or fill a
vacancy in the office of Trustee, appoint, in the manner provided in Section
14.18 hereof, a Trustee so that there shall at all times be a Trustee
hereunder.
SECTION 5.18. That it will not consolidate with or merge into or sell,
convey or lease its property substantially as an entirety to any other
corporation except upon the conditions prescribed in Article XIII hereof.
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SECTION 5.19. That the recitals of fact and statements contained in
this Indenture are true.
SECTION 5.20. The Company covenants that, so long as any bonds of
Series A are outstanding, it will not at any time declare or pay any dividend
on its Common Stock or make any distribution to its Common Stockholders (other
than dividends or distributions payable solely in its Common Stock) or purchase
or otherwise acquire for value any of its Common Stock, except out of (1)
earned surplus of the Company accumulated after December 31, 1949, plus (2)
$530,000 of earned surplus accumulated prior to January 1, 1950 (such
aggregate amount being hereinafter called "unrestricted earned surplus"), nor
unless after the payment of such dividend or the making of such distribution,
purchase or acquisition the sum of (a) the provision for property retirements
or depreciation made by the Company, out of income or earned surplus, during
the period from July 1, 1950, to the end of the calendar year next preceding
the date of payment of such dividend or the making of such distribution,
purchase or acquisition and (b) the unrestricted earned surplus, if any, of the
Company shall be not less than the aggregate of the minimum provision for
property retirements or depreciation determined as provided in Section 1.05
hereof, for the period from July 1, 1950, to the end of the calendar year next
preceding the date of payment of such dividend or the making of such
distribution, purchase or acquisition. For the purposes of this Section, the
earned surplus of the Company accumulated after December 31, 1949, shall be
determined in accordance with sound accounting practice, and, so long as and to
the extent that there shall remain any earned surplus of the Company
accumulated prior to January 1, 1950, other than unrestricted earned surplus,
such amount shall be available for all surplus charges other than such
dividends or the making of such distribution, purchase or acquisition.
SECTION 5.21. In addition to the covenant contained in the first
paragraph of Section 5.07 hereof, the Company covenants and agrees that it
will, whenever requested by the Trustee or whenever requested in writing by the
holders of a majority in principal amount of bonds then outstanding hereunder,
but in any event not more often than once in every three years, and, whether or
not so requested by the Trustee or by bondholders as aforesaid, at least once
in every five years, cause an examination of the mortgaged and pledged property
of the character
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of property additions to be made by an independent engineer. Such independent
engineer, within a reasonable time from the date of his appointment, shall
deliver to the Trustee and the Company a certificate stating whether or not the
mortgaged and pledged property of the character of property additions (other
than property which has been retired) is in general being maintained in good
physical condition and in a state of good operating efficiency for the purposes
of the Company and whether or not all mortgaged and pledged property of the
character of property additions that is no longer used or useful in the
Company's business has been duly recorded as retired on the books of the
Company. If such certificate shall state that the mortgaged and pledged
property of the character of property additions (other than property which has
been retired) in general is not being so maintained, it shall state clearly the
character and extent and the estimated cost of making good such deficiency and
the estimated time reasonably necessary to make good such deficiency, and, if
it shall state that there is mortgaged and pledged property of the character of
property additions which is no longer used or useful in the Company's business
which has not been recorded as retired on the books of the Company, it shall
briefly describe such property and shall state the aggregate retirement which
should be recorded on the books in respect of such property. Said certificate
shall be open to inspection by any bondholder at any reasonable time.
If the certificate of such independent engineer shall state that such
a maintenance deficiency exists, and unless the Company shall (within thirty
(30) days after delivery of such certificate to the Trustee and the Company)
deliver to the Trustee written notice to the effect that it disagrees with the
statements made in such certificate, specifying the reasons therefor, the
Company will with all reasonable speed make such repairs and do such other
maintenance work as may be necessary to make good such deficiency as shall
exist at the time of such certificate; whereupon such independent engineer (or,
in the ease of his refusal or inability to act, some other independent
engineer) shall deliver to the Trustee and the Company a certificate stating
that such deficiency has been made good.
If the Company shall deliver to the Trustee within such thirty (30)
day period such written notice of its disagreement with any of
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the statements made in the certificate of such independent engineer, the
Trustee shall appoint a committee consisting of three competent disinterested
persons, one of whom shall be an independent engineer, one of whom shall be a
person experienced in the operation of electric, gas and water utility
companies, and the other of whom shall be a person experienced in general
business and financial affairs. Such committee shall consider the certificate
of such independent engineer and any other matters or data which shall be
brought to its attention by the Company or the Trustee, and shall deliver to
the Trustee a written report in which it shall determine whether or not such a
maintenance deficiency exists, and if any shall exist, the nature and extent
thereof. Any such report signed by at least two members of such committee shall
be binding and conclusive upon the Company and the Trustee with respect to all
of the matters covered thereby, and if such report shall determine that a
maintenance deficiency exists, the Company will with all reasonable speed make
such repairs and do such other maintenance work as may be necessary to make
good such deficiency.
If any such deficiency (determined by such independent engineer, or,
if the Company shall have delivered to the Trustee, in accordance with the
provisions of this Section, written notice of its disagreement with any of the
statements contained in such certificate, determined by the report of such
committee) shall not have been made good within one (1) year after final
determination that such deficiency exists, or such longer period as may be
approved by such independent engineer or such committee, as the case may be,
the Trustee may, and, upon proper request of the holders of at least a majority
in principal amount of the bonds at the time outstanding hereunder and due
indemnification, shall, proceed in accordance with the provisions of Article X
hereof to enforce the covenant of the Company contained in the first paragraph
of Section 5.07 hereof, and in any such proceedings the certificate of such
independent engineer, or, if the Company shall have delivered to the Trustee in
accordance with the provisions of this Section written notice of its
disagreement with any of the statements contained in such certificate, the
report of such committee, shall be conclusive evidence against the Company of
the existence of the facts and conditions therein set forth.
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The Company further covenants and agrees that if the certificate of
such independent engineer, or, if the Company shall have delivered to the
Trustee in accordance with the provisions of this Section, written notice of
its disagreement with any of the statements contained in such certificate, the
report of such committee, shall state that there has not been recorded as
retired on the books of the Company mortgaged and pledged property of the
character of property additions which is no longer used or useful in the
Company's business, it will forthwith make appropriate entries on its books
recording the retirement of such property and will deliver to the Trustee an
officers' certificate stating that such entries have been made.
All expense incurred under this Section shall be borne by the Company.
SECTION 5.22. The Company covenants and agrees that it will at any
time, upon the written request of the holders of a majority in principal amount
of the bonds of any series outstanding hereunder at the time of such request,
use of its best efforts to cause this Indenture to be qualified under the
provisions of the Trust Indenture Act of 1939, and will do all such acts and
things as may reasonably be required in order to effect such qualification.
SECTION 5.23. The Company covenants and agrees that it will deposit
with the Trustee Three Hundred and Fifty Thousand Dollars ($350,000) of the
purchase price of the bonds of Series A issued pursuant to Section 4.02 hereof,
which sum shall only be withdrawn (1) in an amount equal to sixty per centum
(60%) of the property additions (of the type which would constitute "property
additions" as defined in Section 1.03 hereof if purchased, constructed,
erected, or otherwise acquired, and owned by the Company subsequent to June 30,
1950) acquired by the Company subsequent to January 1, 1950 and prior to July
1, 1950, less actual retirements of bondable property (of the type which would
constitute "retirements of bondable property" as defined in Section 1.05 hereof
if retired subsequent to June 30, 1950) subsequent to January 1, 1950 and prior
to July 1, 1950; provided, however, that said property additions less
retirements as aforesaid shall not exceed the sum of One Hundred and
Seventy-five Thousand Dollars ($175,000), and (2) the balance of said Three
Hundred and
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Fifty Thousand Dollars ($350,000) shall be withdrawn in the same manner as cash
deposited with the Trustee pursuant to Section 4.05 hereof.
Prior to the withdrawal of any cash pursuant to (1) above the Company
shall deliver to the Trustee
(a) an officers' certificate showing
(1) the amount of property additions for the
period subsequent to January 1, 1950 and prior to July 1,
1950; less
(2) the actual retirements of bondable property
made by the Company during the period subsequent to January 1,
1950, and prior to July 1, 1950;
(3) the difference between (1) and (2) above or
$175,000 whichever is the lesser; and
(4) sixty per centum (60%) of (3) above;
(b) a written order of the Company for said cash
evidenced by a writing signed in the name of the Company by its
President or one of its Vice Presidents and its Treasurer or one of
its Assistant Treasurers;
(c) a resolution of the Board of Directors of the Company
authorizing the withdrawal of such cash; and
(d) an officers' certificate stating that the Company is
not, to the knowledge of the signers, in default in the performance of
any of the covenants on its part to be performed under this Indenture.
ARTICLE VI.
SINKING FUND FOR BONDS OF SERIES A.
SECTION 6.01. The Company covenants and agrees that so long as any of
the bonds of Series A shall be outstanding it will pay to the Trustee, as and
for a sinking fund for the bonds of Series A, on the first day of July in the
year 1951 and on the first day of July in each year thereafter, an amount of
cash equal to one per centum (1%) of the greatest principal amount of bonds of
Series A at any one time outstanding under this Indenture; provided, however,
that the amount of cash payable to the Trustee on any such date pursuant to the
provisions of this Section shall be reduced by an amount equal to the aggregate
principal amount of bonds of
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Series A then being delivered by the Company to the Trustee, but no bonds of
Series A shall be delivered to the Trustee which have not been sold in a bona
fide transaction and reacquired by the Company.
All cash paid to the Trustee pursuant to the provisions of this
Section shall, to the extent practical, be applied promptly by the Trustee to
the purchase of bonds of Series A in accordance with the provisions of Section
8.06 hereof. If the Trustee on August 20 of any year shall hold cash under the
provisions of this Section amounting to $15,000 or more (or any amount less
than $15,000 if the Company so elects) not applied to the purchase of bonds of
Series A as above provided for, the Trustee shall apply all cash then held
under the provisions of this Section to the redemption, on the next succeeding
October 1 of bonds of Series A, in the manner and subject to the conditions
provided in such bonds and in Article VIII hereof; and for such purpose the
Trustee may publish notice of redemption in the name of the Company or in its
own name as Trustee.
SECTION 6.02. The Company further covenants to pay to the Trustee, on
demand, the compensation of the Trustee in administering the sinking fund as
provided in this Article VI, together with the Trustee's expenses, including
cost of advertisement of redemption notices and any other advertisements and
other lawful charges, if any, and any accrued interest and premium paid or
payable with respect to any such bonds of Series A purchased or redeemed as
provided for in Section 6.01, it being intended that the aforesaid
compensation, expenses, charges, accrued interest and premium shall not be
charged against sinking fund moneys.
SECTION 6.03. All bonds of Series A delivered to the Trustee for the
purpose of taking a credit pursuant to the provisions of Section 6.01, or
purchased or redeemed pursuant to the provisions of Section 6.01, shall be
forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 7.01. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee between March 15
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and March 31 and between September 15 and September 30 in each year beginning
with the period between March 15 and March 31 in the year 1951, and at such
other times as the Trustee may request in writing, a list in such form as the
Trustee may reasonably require containing all the information in the possession
or control of the Company, or any of its paying agents other than the Trustee,
as to the names and addresses of the holders of bonds obtained since the date
as of which the next previous list, if any, was furnished. Any such list may be
dated as of a date not more than fifteen days prior to the time such
information is furnished or caused to be furnished, and need not include
information received after such date.
SECTION 7.02. (A) The Trustee shall preserve in as current a form as
is reasonably practicable all information as to the names and addresses of the
holders of the bonds outstanding under this Indenture (1) contained in the most
recent list furnished to it, as provided in Section 7.01 hereof, (2) received
by it in the capacity of paying agent, if so acting, with respect to any of the
bonds outstanding under this Indenture, and (3) filed with it within the two
preceding years pursuant to the provisions of paragraph (2) of subsection (C)
of Section 7.04 hereof.
The Trustee may (a) destroy any list furnished to it as provided in
said Section 7.01 upon receipt of a new list so furnished to it; (b) destroy
any information received by it as paying agent, if so acting, upon delivering
to itself as Trustee, not earlier than forty-five days after an interest
payment date of the bonds, a list containing the names and addresses of the
holders of bonds obtained from such information since the delivery of the next
previous list, if any; (c) destroy any list delivered to itself as Trustee
which was compiled from information received by it as paying agent, if so
acting, upon receipt of a new list so delivered; and (d) destroy any
information received by it pursuant to the provisions of paragraph (2) of
subsection (C) of said Section 7.04 but not until two years after such
information has been filed with it.
(B) In case three or more holders of bonds (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a bond outstanding under
this Indenture for a period of at least six
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116
months preceding the date of such application, and such application states that
the applicants desire to communicate with other holders of bonds with respect
to their rights under this Indenture or under the bonds, and is accompanied by
a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within five business days after the
receipt of such application, at its election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (A) of this Section and to a list of the names and
addresses of holders of registered bonds; or
(2) inform such applicants as to the approximate number
of holders of bonds whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with
the provisions of subsection (A) of this Section, and the approximate
number of holders of registered bonds, and as to the approximate cost
of mailing to such bondholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each bondholder whose name and address appears in the
information preserved at the time by the Trustee, in accordance with the
provisions of subsection (A) of this Section and to each holder of a registered
bond, a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of such mailing, unless within five days after such tender,
the Trustee shall mail to such applicants and file with the Securities and
Exchange Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the holders of bonds or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If said Commission, after opportunity for a hearing
upon the objections
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specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections, or if, after the entry of an order sustaining
one or more of such objections, said Commission shall find, after notice and
opportunity for a hearing, that all the objections so sustained have been met
and shall enter an order so declaring, the Trustee shall mail copies of such
material to all such bondholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise, the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(C) The Trustee shall not be held accountable by reason of the
disclosure of any information or the mailing of any material pursuant to any
request made under subsection (B) of this Section regardless of the source from
which such information was derived or such material was obtained.
SECTION 7.03. The Company covenants and agrees
(A) To file with the Trustee, within fifteen days after
the Company is required to file the same with the Securities and
Exchange Commission, copies of the annual reports, and of the
information, documents and other reports (or copies of such portions
of any of the foregoings as such Commission may from time to time by
rules and regulations prescribe) which the Company may be required to
file with such Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports, pursuant to either
of such Sections, then to file with the Trustee and the Securities and
Exchange Commission, in accordance with rules and regulations
prescribed from time to time by said Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(B) To file with the Trustee and the Securities and
Exchange Commission, in accordance with the rules and regulations
pre-
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scribed from time to time by said Commission, such additional
information, documents reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations;
(C) To transmit to the holders of bonds outstanding under
this Indenture, within thirty days after the filing thereof with the
Trustee (or at such other time as shall be fixed by the Securities and
Exchange Commission) and in the manner and to the extent provided in
subsection (C) of Section 7.04 hereof with respect to reports pursuant
to subsection (A) of said Section, such summaries of any information,
documents and reports required to be filed by the Company, pursuant to
subsections (A) and (B) of this Section, as may be required by the
rules and regulations prescribed from time to time by the Securities
and Exchange Commission;
(D) If at any time hereafter the Company shall not be
required under the provisions of subsection (A) of this Section to
file with the Securities and Exchange Commission copies of its annual
report or other information, documents and reports, to file with the
Trustee within one hundred twenty (120) days after the close of each
fiscal year a statement signed by the Treasurer or an Assistant
Treasurer or the Comptroller or an Assistant Comptroller of the
Company and an independent certified or public accountant showing its
financial condition and giving reasonably detailed information as to
its assets and liabilities and its earnings and operating expenses;
and
(E) To furnish to the Trustee (a) with or as a part of
each annual report and each other document or report filed with the
Trustee pursuant to subsections (A) or (B) of this Section, an
officers' certificate stating that in the opinion of the officers
making such certificate such annual report or other document or report
complies with the requirements of such subsections (A) or (B); and
(b), upon request of the Trustee after the Company shall have mailed
to the holders of bonds any summary of information, documents or
reports pursuant to subsection (C) of this
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Section, an officers' certificate stating that in the opinion of the
officers making such certificate such summary complies with the
requirements of such subsection (C).
SECTION 7.04. (A) On or before March 31, 1951, and on or before March
31 in every year thereafter, so long as any bonds are outstanding hereunder,
the Trustee shall transmit to the bondholders as hereinafter provided, a brief
report dated as of January 1 of such year with respect to
(1) Its eligibility and its qualifications under Sections
14.01 and 14.14. hereof, or in lieu thereof, if to the best of its
knowledge the Trustee has continued to be eligible and qualified under
such Sections, a written statement to such effect;
(2) The character and amount of any advances (and, if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee, as such, which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge prior to that of the bonds upon the mortgaged
and pledged property, or upon property or funds held or collected by
it as Trustee, if such advances so remaining unpaid aggregate more
than one-half of one per centum (1/2 of 1%) of the aggregate principal
amount of bonds outstanding under this Indenture on the date of such
report;
(3) The amount, interest rate and maturity date of all
other indebtedness owing by the Company, or any other obligor on the
bonds secured hereby, to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4) or (6) of subsection (B) of Section 14.15 hereof;
(4) The property and funds physically in the possession
of the Trustee, as such, or of a depositary for it, on the date of
such report;
(5) Any release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration therefor,
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if any) which it has not previously reported; provided, however, that
to the extent that the aggregate value as shown by the release papers
of any or all of such released properties does not exceed an amount
equal to one per centum (1%) of the principal amount of bonds then
outstanding, the report need only indicate the number of such
releases, the total value of property released as shown by the release
papers, the aggregate amount of cash received and the aggregate value
of property received in substitution therefor as shown by the release
papers;
(6) Any additional issue of bonds issued under this
Indenture which the Trustee has not previously reported; and
(7) Any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which, in its opinion, materially affects the bonds outstanding
under this Indenture, or materially affects the mortgaged and pledged
property, except action in respect of a default, notice of which has
been or is to be withheld by the Trustee, in accordance with the
provisions of Section 10.02 hereof.
(B) The Trustee shall transmit to the bondholders as hereinafter
provided a brief report with respect to:
(1) the release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration therefor,
if any) unless the fair value of such property, as set forth in the
certificate or opinion required by Sections 9.03 or 9.04 hereof is
less than ten per centum (10%) of the principal amount of bonds
outstanding at the time of such release, or such release and
substitution, such report to be so transmitted within ninety days
after such time; and
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee, as such, since the date of the last
report transmitted pursuant to the provisions of subsection (A) of
this Section (or if no such report has yet been so transmitted, since
the date of execution of this Indenture), for the reimbursement of
which it claims or may claim a lien or charge
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prior to that of the bonds on the mortgaged and pledged property or on
property or funds held or collected by it as Trustee, and which it has
not previously reported pursuant to this paragraph, if such advances
remaining unpaid at any time aggregate more than ten per centum (10%)
of the principal amount of bonds outstanding at such time, such report
to be transmitted within ninety days after such time.
(C) Reports, pursuant to this Section, shall be transmitted by mail
(1) to all registered holders of bonds outstanding under
this Indenture. as the names and addresses of such holders appear upon
the registration books of the Company;
(2) to such holders of bonds outstanding under this
Indenture as have, within the two years preceding such transmission,
filed their names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection
(B) of this Section, to each bondholder whose name and address is
preserved at the time by the Trustee, as provided in subsection (A) of
Section 7.02 hereof.
(D) A copy of each such report shall, at the time of such
transmission to the bondholders, be filed by the Trustee with each stock
exchange upon which any of the bonds are listed, and also with the Securities
and Exchange Commission.
(E) If an individual trustee, separate trustee, or co-trustee is
appointed pursuant to Section 14.19, the provisions of this Section which have
been made specifically applicable to the Trustee shall also apply to such
individual trustee, separate trustee, or co-trustee to the extent consistent
with the rights, powers, duties and obligations conferred or imposed upon such
individual trustee, separate trustee, or co-trustee by the terms of his or its
appointment. Any such individual trustee, separate trustee, or co-trustee may,
if he or it so elects, furnish to the Trustee all information concerning such
individual trustee, separate trustee, or co-trustee which such individual
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trustee, separate trustee, or co-trustee is required to report, and the Trustee
shall transmit and file such information in accordance with the provisions of
this Section on behalf of such individual trustee, separate trustee, or
co-trustee; provided, however, that, subject to the provisions of Sections
14.02 and 14.03 hereof, the Trustee shall not be responsible for the accuracy
or completeness of any such information or for the failure of any such
individual trustee, separate trustee, or co-trustee to report or to furnish any
such information. In the event that any such individual trustee, separate
trustee, or co-trustee shall elect to furnish information to the Trustee in
accordance with the provisions of this subsection (E), the information required
pursuant to subsection (A) of this Section shall be furnished to the Trustee in
writing not less than fifteen (15) days before the report is required to be
made, and, in the case of information required pursuant to subsection (B) of
this Section, such information shall be furnished to the Trustee in writing
within sixty (60) days after the taking by any such individual trustee,
separate trustee, or co-trustee of any action required to be reported.
(F) For the purpose of this Section all bonds which have been
authenticated and delivered and not returned to the Trustee and cancelled,
shall be deemed to be outstanding.
ARTICLE VIII.
REDEMPTION OR PURCHASE OF BONDS.
SECTION 8.01. The Company reserves the right to redeem the bonds of
Series A issued hereunder as set forth in Section 2.10 hereof. In the creation
of each particular series of bonds issued hereunder other than Series A, the
Company may reserve the right to redeem and pay prior to their fixed maturity
all or any part of the bonds of such series at such time or times, and from
time to time, and on such terms as the Board of Directors may determine and as
shall be appropriately expressed in the bonds of such series and in the
supplemental indenture with respect to the bonds of such series.
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123
SECTION 8.02. In case the Company shall desire to exercise such right
of redemption of all or any part of the bonds in accordance with the right so
reserved by it, it shall publish, or cause to be published on its behalf, in
one daily newspaper published and of general circulation in the City of New
Orleans, Louisiana, and in one daily newspaper published and of general
circulation in each of such other cities, if any, in which the interest on the
bonds so to be redeemed is payable, at least once in each of four successive
calendar weeks, the first publication to be at least thirty (30) and not more
than sixty (60) days before the date fixed for redemption, a notice to the
effect that the Company has elected to redeem all the bonds or a part thereof,
as the case may be, on a date therein designated, specifying, in the case of
the redemption of less than all series, the serial designations of the bonds to
be redeemed, and, in the case of the redemption of less than all of the
outstanding bonds of a series, the distinctive numbers of the bonds to be
redeemed, and in every case stating that on said date there will become and be
due and payable upon each bond so to be redeemed, at the principal office of
the Trustee, the principal thereof, together with the accrued interest to such
date, with such premium if any, as is due and payable on such bond upon such
redemption, and that from and after such date interest thereon will cease to
accrue. If any of the bonds to be redeemed are registered bonds without coupons
or coupon bonds registered as to principal, similar notice shall be mailed by
the Company, postage prepaid, at least thirty (30) and not more than sixty (60)
days prior to such redemption date, to the persons respectively who shall
appear by the transfer register or registers of the Company to be the
registered owners of such bonds, at their addresses as the same shall appear,
if at all, upon the transfer register or registers of the Company; but such
mailing shall not be a condition precedent to such redemption, and failure so
to mail any notice or any defect therein or in the mailing thereof shall not
affect the validity of the proceedings for the redemption of such bonds. If all
of the bonds of any series which are to be redeemed are registered bonds
without coupons or coupon bonds registered as to principal, then, at the option
of the Company, publication of such notice of redemption with respect to the
bonds of such series
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may be omitted; but, if publication of such notice of redemption with respect
to the bonds of any series shall be so omitted, then such notice shall be
mailed, by registered mail with return receipt requested, at least thirty (30)
and not more than sixty (60) days prior to such redemption date, to the
registered owners of the bonds of such series which are to be redeemed, at
their addresses hereinabove specified, and such mailing thereof (but not the
receipt thereof or the return of the receipt so requested) shall be a condition
precedent to the redemption of the bonds of such series. In case provision
shall be made in respect to any series for the publication of such notice of
redemption in other cities or for publication more than once in such of four
successive calendar weeks or in more newspapers or for a longer period than
thirty (30) days or for any other additional condition to the redemption of
bonds of such series, compliance shall be made with such provision in case
bonds of such series shall be redeemed.
In case the Company shall have elected to redeem less than all of the
outstanding bonds of any series, it shall in each such instance, at least
fifteen (15) days before the first date upon which the notice of redemption
hereinbefore mentioned is required to be given, notify the Trustee in writing of
such election and of the aggregate principal amount of bonds of such series to
be redeemed, and thereupon the Trustee shall draw by lot (assigning separate
numbers for each $1,000 of principal mount of each registered bond without
coupons of such series then outstanding), in any manner deemed by it proper, the
bonds to be redeemed, and shall notify the Company in writing of the numbers of
the bonds so drawn in ample time to permit the notice of redemption to be given
as herein provided; provided, however, that if all of the outstanding bonds of
such series shall be registered bonds without coupons or coupon bonds registered
as to principal, the particular bonds of such series to be redeemed may be
selected in accordance with any agreement between the registered holders of all
of the outstanding bonds of such series. In case any registered bond without
coupons shall be redeemed in part only, such notice shall specify the principal
amount thereof to be redeemed and shall state that, at the option of the
registered owner, such bond may be presented for the notation thereon of the
principal amount
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thereof so to be redeemed, or may be surrendered for partial redemption, in
which case a new bond or new bonds of the same series of an aggregate principal
amount equal to the unredeemed portion of such registered bond will be issued
in lieu thereof, and the Company shall execute and the Trustees shall
authenticate and deliver such new bond or bonds to or upon the written order of
the registered owner of such registered bond, at the expense of the Company.
SECTION 8.03. In the event that the Company shall complete the giving
of notice of its intention to redeem any bonds so redeemable, the Company shall,
and it hereby covenants that it will, on or before the redemption date specified
in such notice, deposit with the Trustee a sum of money sufficient to redeem all
such bonds or portions of bonds so to be redeemed on such date or irrevocably
direct the Trustee to apply from moneys held by it available to be used for the
redemption of bonds, a sum of money sufficient to redeem such bonds or portions
of bonds. If the Company shall fail so to deposit or direct the application of
the money for such redemption such failure shall constitute a completed default
under this Indenture and the said bonds or portions of bonds so called for
redemption shall immediately become due and payable, and the holders of said
bonds or portions of bonds shall be entitled to receive and the Company shall be
obligated to pay the redemption price of said bonds or portions of bonds and
thereupon and without the lapse of any period of time all the remedies provided
for in Article X hereof with respect to a default in the payment of principal of
bonds outstanding hereunder shall be available to and enforceable by the
Trustee. If publication of notice of redemption shall have been completed and
the money necessary to redeem the bonds or portions of bonds specified in such
notice shall have been deposited with the Trustee (or the Trustee shall have
been irrevocably directed to apply from money held by it available to be used
for the redemption of bonds the money necessary for such redemption), such bonds
or portions of bonds shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after such date of
redemption interest on the bonds or portions of bonds so called for redemption
shall cease to accrue, and the
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coupons for such interest shall be void. On presentation and surrender of such
bonds at said place or places of payment in said notice specified with all
unmatured coupons, if any, thereto appertaining, they shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption. Coupons maturing
prior to the redemption date shall remain payable in accordance with their
terms. In any case where the redemption date is an interest payment date, the
coupons maturing on such date on the coupon bonds called for redemption may be
detached by the holders thereof and presented for payment in the usual manner.
Upon presentation of any bond which is redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the registered holder
thereof, at the expense of the Company, new bonds of the same series and
maturity in principal amount equal to the unredeemed portion of the bonds so
presented.
SECTION 8.04. All moneys deposited by the Company with the Trustee
under the provisions of this Article VIII for the redemption of bonds or which
the Company directs shall be applied by the Trustee to the redemption of bonds
shall, subject to the provisions of Section 15.04 hereof, be held by the Trustee
in trust for account of the holders of the bonds and portions of bonds so to be
redeemed. Upon the making of such deposit or the giving of such direction and
the furnishing to the Trustee of proof satisfactory to it that the giving of
notice of redemption has been completed or the making of provision satisfactory
to the Trustee for the giving of such notice the bonds or portions of bonds so
to be redeemed shall no longer be entitled to any lien or benefit under this
Indenture.
SECTION 8.05. If the redemption date be a legal holiday or a day on
which banking institutions are authorized by law to close, then payment of the
redemption price and interest payable upon redemption may be made on the next
succeeding day, not a legal holiday or day on which banking institutions are
authorized by law to close, with the same force and effect as if made on the
nominal redemption date, and no interest shall accrue for the period after the
nominal redemption date.
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SECTION 8.06. At any time, upon the request of the Company, the
Trustee shall, to the extent that such bonds are available for such purchase,
apply all or any part of the cash held by it as part of the mortgaged and
pledged property (other than cash held by it in trust for the payment or
redemption of specific bonds or for the payment of specific interest) or any
cash deposited with it by the Company for the purpose, to the purchase of bonds
then outstanding hereunder of such series as the Company may designate at a
price not exceeding the current redemption price of such bonds as shall be by
their terms redeemable before maturity, or at not more than one hundred and five
per centum (105%) of the principal amount of bonds not so redeemable plus
accrued interest. Before making any such purchase the Trustee may, and upon
request of the Company shall, by notice published once in each of two successive
calendar weeks (on any business day in the week) in at least one daily newspaper
of general circulation in the City of New Orleans, Louisiana, advertise for
written proposals (to be received by it on or before a specified date) to sell
to it on or before a subsequent specified date bonds of the series designated by
the Company then outstanding hereunder; and the Trustee, to the extent as nearly
as is possible of such funds then in its hands and requested by the Company to
be so applied, shall purchase the bonds so offered at the price or prices most
favorable to the Company, and reasonable notice shall be mailed by the Trustee
to the holder or holders of the bonds whose proposals may be accepted. If all of
the bonds of the series designated by the Company are registered bonds without
coupons or coupon bonds registered as to principal, such publication need not be
made, but, in lieu thereof, a copy of such notice shall thereupon be mailed to
each such registered holder directed to his registered address. The Trustee may
also in its discretion, and upon request of the Company so to do, shall invite
offers of bonds for sale to it in any other usual manner. The Company shall have
the right to tender bonds for sale by it to the Trustee under any of the
foregoing provisions of this Section. The Trustee may reject any or all
proposals in whole or in part if it can at the time of opening said proposals
purchase the requisite amount of such bonds or any part thereof from the Company
or others at a more favorable price than it could by accepting said proposals.
All offers by holders
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shall be subject to acceptance of a portion thereof unless otherwise expressed
in the offers and all advertisements for written proposals shall so state. The
term "current redemption price" as used in this Section with respect to the
bonds of any particular series shall be deemed to be the current redemption
price at which bonds of such series are redeemable solely at the option of the
Company, except as may be otherwise provided with respect to bonds of such
series. All bonds purchased by the Trustee pursuant to the provisions of this
Section 8.06 shall be forthwith cancelled by the Trustee.
SECTION 8.07. All expenses incurred by the Trustee in connection with
any purchase or redemption of bonds issued hereunder and the accrued interest
and premium, if any, on any bonds purchased or redeemed shall be paid by the
Company out of its general funds, and the Company agrees to reimburse the
Trustee on demand for any funds disbursed by it for such purposes, or, if
required by the Trustee, the funds necessary therefor shall be paid by the
Company in anticipation of such disbursements by the Trustee, and any such
disbursements by the Trustee until reimbursed shall be secured by a lien on the
mortgaged and pledged property and the proceeds thereof prior to the lien of
the bonds and coupons issued hereunder.
ARTICLE IX.
POSSESSION, USE AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY.
SECTION 9.01. So long as the Company is not in default in the payment
of the interest on any of the bonds then outstanding hereunder and none of the
completed defaults specified in Section 10.01 hereof shall have occurred and be
continuing, the Company shall be entitled to possess, use and enjoy the
mortgaged and pledged property (except such cash and securities as are
expressly required to be or have been deposited with the Trustee) and to
receive, use and dispose of the tolls, rents, revenues, issues, earnings,
income, product and profits thereof, with power in the ordinary course of
business freely and without let or hinderance on the part of the Trustee or of
the bondholders, to use, consume and dispose of materials and supplies, and,
except as herein otherwise expressly provided to the contrary, to exercise any
and all rights under choses in action, contracts, franchises and claims.
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SECTION 9.02. So long as the Company is not in default in the payment
of the interest on any of the bonds then outstanding hereunder and none of the
completed defaults specified in Section 10.01 hereof shall have occurred and be
continuing, the Company may at any time and from time to time, without any
notice to or release or consent by the Trustee or accountability to it for any
consideration received by the Company:
(1) sell or otherwise dispose of, free from the lien of
this Indenture, any machinery, equipment, tools, implements or other
similar property, which shall have become old, inadequate, obsolete,
worn out, unfit or unadapted for use in the operations of the Company
upon replacing the same by or substituting for the same other property
of at least equal value to that of the property sold or otherwise
disposed of;
(2) make changes or alterations in or substitutions of
any and all leases, easements or right of way grants, provided that
such change, alteration or substitution is, in the opinion of the
Board of Directors of the Company, desirable in the conduct of the
business of the Company and does not impair the security of the bonds
outstanding hereunder;
(3) modify, surrender, abandon, or otherwise terminate
any right, power, privilege or franchise, (a) if the Company shall
contemporaneously, or as part of the same transaction, obtain or shall
previously have obtained a new right, power, privilege or franchise
under which it may continue to perform the service and conduct the
business theretofore performed or conducted under or by virtue of the
right, power, privilege or franchise, modified, surrendered, abandoned
or terminated, and which, in the opinion of the Board of Directors, is
the most advantageous right, power, privilege or franchise obtainable
under circumstances then prevailing, or (b) whenever in the opinion
of the Board of Directors the right, power, privilege or franchise to
be modified, surrendered, abandoned or terminated can no longer be
profitably exercised or availed of and shall not be essential to the
maintenance and continued use of the rest of the mortgaged and pledged
property; and if, in any such event in the opinion of the Board of
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Directors the security of the bonds outstanding hereunder would not
thereby be impaired.
SECTION 9.03. (A) So long as the Company is not in default in the
payment of the interest on any bonds then outstanding hereunder and none of the
completed defaults specified in Section 10.01 hereof shall have occurred and be
continuing, the Company may obtain a release of any part of the mortgaged and
pledged property (other than cash, purchase money obligations and obligations
of a governmental body or agency, held by the Trustee, none of which shall be
released except as provided in other Sections hereof) which the Company has
sold or exchanged, or contracted to sell or exchange, and the Trustee shall
execute and deliver a release of such part of the mortgaged and pledged
property from the lien hereof, if the aggregate of the fair value (as
determined in accordance with the provisions of paragraph (7) of subsection (B)
of this Section) of the bondable property, and the nonbondable property, if
any, to be released shall not exceed the aggregate of:
(1) cash then being deposited with the Trustee (or with
the trustee or other holder of an unfunded lien pursuant to the
provisions of this Section);
(2) the principal amount of any purchase money
obligations then being pledged with the Trustee (or with the trustee
or other holder of an unfunded lien pursuant to the provisions of this
Section), which shall have been received by the Company as
consideration or part consideration for bondable property to be
released and which shall be secured by a purchase money mortgage
thereon; provided that
(a) such purchase money obligations shall be
included only to the extent that the principal amount thereof
does not in the aggregate exceed sixty per centum (60%) of the
fair value (as determined in accordance with the provisions of
paragraph (7) of subsection (B) of this Section) of the
bondable property to be released by which such purchase money
obligations will be secured; and
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(b) the aggregate principal amount of such
purchase money obligations and all other purchase money
obligations (except purchase money obligations received with
respect to the release of nonbondable property) pledged with
the Trustee pursuant to the provisions of this Section and
then held as part of the mortgaged and pledged property (or
pledged with the trustee or other holder of an unfunded lien
pursuant to the provisions of this Section and then held by
such trustee or other holder) shall not exceed twenty per
centum (20%) of the aggregate principal amount of all bonds
outstanding hereunder at the date of the officers' certificate
then being delivered to the Trustee, pursuant to the
provisions of paragraph (3) of subsection (B) of this Section,
in connection with the proposed release, plus all bonds which
might be authenticated and delivered hereunder at the date of
such officers' certificate pursuant to the provisions of
Sections 4.03 and 4.04 hereof;
(3) the fair value to the Company (as determined in
accordance with the provisions of paragraph (9) of subsection (B) of
this Section) of any property additions then being certified to the
Trustee in subparagraph (f) of the officers' certificate delivered to
the Trustee pursuant to the provisions of paragraph (3) of subsection
(B) of this Section which shall have been acquired by the Company as
consideration or part consideration for the mortgaged and pledged
property to be released;
(4) if nonbondable property is to be released, then to
the extent of the fair value (as determined in accordance with the
provisions of paragraph (7) of subsection (B) of this Section) of such
nonbondable property, the fair value to the Company (as determined in
accordance with the provisions of paragraphs (8) or (9) of subsection
(B) of this Section) of the aggregate of (i) any other property then
being certified to the Trustee in subparagraph (g) of the officers'
certificate delivered to the Trustee pursuant to the provisions of
paragraph (3) of subsection (B) of this Section and (ii) securities
(other than purchase money mortgages received with respect to the
release of bondable property or unfunded lien bonds or bonds
authenticated and
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delivered hereunder or obligations of a governmental body or agency)
then being pledged with the Trustee (or with the trustee or other
holder of an unfunded lien pursuant to the provisions of this
Section), which property or securities shall have been acquired by the
Company as consideration or part consideration for the nonbondable
property to be released; provided, however, that there shall be
deducted from the fair value to the Company (as determined in
accordance with the provisions of paragraphs (8) or (9) of subsection
(B) of this Section) of such property or securities the principal
amount of any unfunded lien bonds secured by an unfunded lien on all
or part of such property or securities, unless the principal amount of
such unfunded lien bonds has theretofore been deducted when property
additions or securities subject to unfunded lien have theretofore been
certified to the Trustee under this paragraph (4);
provided, however, that in case some or all of the part of the mortgaged and
pledged property to be released is being sold or exchanged subject to an
unfunded lien then existing thereon (and on no other part of the mortgaged and
pledged property) and all the outstanding unfunded lien bonds secured by such
unfunded lien are being assumed by the purchaser of the property to be
released, then, for all purposes of the computation above provided for there
shall be deducted from the fair value (as determined in accordance with the
provisions of paragraph (7) of subsection (B) of this Section) of the
nonbondable property to be released the principal amount of such unfunded lien
bonds.
(B) Prior to the release of any part of the mortgaged and pledged
property under this Section there shall in each case have been delivered to the
Trustee:
(1) a written request of the Company for such release
evidenced by a writing signed in the name of the Company by its
President or one of its Vice-Presidents and its Treasurer or one of
its Assistant Treasurers;
(2) a certified copy of a resolution of the Board of
Directors of the Company, authorizing or approving such request and
stating
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that in the judgment of the Board the sale or exchange of such part of
the mortgaged and pledged property is desirable in the conduct of the
business of the Company and that the release thereof will not impair
the security under this Indenture in contravention of the provisions
thereof;
(3) an officers' certificate containing
(a) a statement that the Company is not in
default in the payment of the interest on any bonds then
outstanding hereunder and that none of the completed defaults
specified in Section 10.01 hereof has occurred and is
continuing;
(b) a brief description of the part of the
mortgaged and pledged property to be released (bondable and
nonbondable property being described separately), a statement
that the Company has sold or exchanged, or contracted to sell
or exchange, such part of the mortgaged and pledged property,
and the fair value (as determined by an engineer, appraiser or
other expert in accordance with the provisions of paragraph
(7) of this subsection (B)), stated separately, of the
bondable property, and the non-bondable property, if any, to
be released;
(c) in a case falling within the proviso
following paragraph (4) of subsection (A) of this Section, a
brief description of the unfunded lien existing on mortgaged
and pledged property to be released, a statement that no other
part of the mortgaged and pledged property is subject to such
unfunded lien and that all the outstanding unfunded lien bonds
secured by such unfunded lien are being assumed by the
purchaser of the property to be released, and a statement of
the principal amount of such unfunded lien bonds as are
secured by an unfunded lien on nonbondable property to be
released;
(d) a statement of the amount of cash, if any,
being deposited pursuant to paragraph (1) of subsection (A) of
this Section;
(e) a brief description of any purchase money
obligations being pledged pursuant to paragraph (2) of
subsection (A) of this Section, the principal amount thereof,
a statement that
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such purchase money obligations have been received as
consideration or part consideration for bondable property to
be released, a statement that such purchase money obligations
do not exceed the limitations of the first proviso to said
paragraph (2) and a computation showing that the principal
amount of such purchase money obligations complies with the
second proviso of said paragraph (2);
(f) a brief description of any property additions
then being certified to the Trustee pursuant to paragraph (3)
of subsection (A) of this Section, the fair value to the
Company of such property additions (as determined by an
engineer, appraiser or other expert in accordance with the
provisions of paragraph (9) of this subsection (B)), and a
statement that such property additions have been received as
consideration or part consideration for mortgaged and pledged
property to be released; and
(g) a brief description of any other property or
securities then being certified to the Trustee and pledged
pursuant to paragraph (4) of subsection (A) of this Section,
the fair value to the Company of such property or securities
(as determined by an engineer, appraiser or other expert in
accordance with the provisions of paragraphs (8) or (9) of
this subsection (B)), a computation showing that such fair
value does not exceed the fair value (as stated in
subparagraph (b) of such officers' certificate) of the
nonbondable property, if any, to be released, a statement that
such property or securities have been received as
consideration or part consideration for the mortgaged and
pledged property to be released, and a computation showing any
deduction required by the proviso to said paragraph (4) or, in
case such proviso is inapplicable, a statement to that effect;
(4) the cash, if any, then being deposited with the
Trustee pursuant to paragraph (1) of subsection (A) of this Section,
or, if any cash is then being deposited with the trustee or other
holder of an unfunded lien pursuant to the provisions of this Section,
in connection with the release of the property to be
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135
released, a certificate of such trustee or other holder, as the case
may be, stating that such cash has been deposited with it;
(5) any purchase money obligations or securities then
being pledged with the Trustee pursuant to the provisions of paragraph
(2) or paragraph (4) of subsection (A) of this Section, or, if any
such purchase money obligations or securities are then being pledged
with the trustee or other holder of an unfunded lien pursuant to the
provisions of this Section, in connection with the release of the
property to be released, a certificate of such trustee or other
holder, as the case may be, stating that such purchase money
obligations or securities have been pledged with it;
(6) all such deeds, indentures supplemental hereto or
instruments of further assurance which, as set forth in the opinion of
counsel furnished pursuant to paragraph (10) of this subsection (B),
may be necessary or advisable to subject to the lien of this Indenture
any property additions certified to the Trustee pursuant to paragraph
(3) of subsection (A) of this Section and any other property certified
to the Trustee pursuant to paragraph (4) of subsection (A) of this
Section;
(7) a certificate or opinion of an engineer, appraiser or
other expert stating separately the fair value of the bondable
property and of the nonbondable property to be released and also
stating that, in the opinion of the expert signing such certificate or
opinion, the proposed release will not impair the security under this
Indenture in contravention of the provisions thereof; and if the fair
value of the property or securities the release of which is requested
and of all other property or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in any certificates or opinions furnished pursuant to the
provisions of this paragraph and of Section 9.04 hereof, is ten per
centum (10%) or more of the aggregate principal amount of the bonds at
the time outstanding, the certificate or opinion required by this
paragraph shall be made by an independent engineer, appraiser or other
expert; provided, however, that such certificate or opinion need not
be by an independent
<PAGE> 148
136
engineer, appraiser or other expert if the fair value of the property
or securities to be released as set forth in the certificate or
opinion is less than the greater of (i) Twenty-five Thousand Dollars
($25,000) or (ii) one per centum (1%) of the aggregate principal
amount of the bonds at the time outstanding;
(8) if the pledge of securities pursuant to the
provisions of paragraph (4) of subsection (A) of this Section is to be
made the basis for the release of mortgaged and pledged property, a
certificate or opinion of an engineer, appraiser or other expert
stating the fair value to the Company of such securities; and if the
fair value to the Company of such securities and of all other
securities which shall have been pledged pursuant to the provisions of
paragraph (4) of subsection (A) of this Section and of Section 9.04
hereof since the commencement of the then calendar year, as set forth
in any certificates or opinions furnished pursuant to the provisions
of this paragraph and of Section 9.04 hereof, is ten per centum (10%)
or more of the aggregate principal amount of the bonds at the time
outstanding, the certificate or opinion required by this paragraph
shall be made by an independent engineer, appraiser or other expert;
provided, however, that such a certificate of an independent engineer,
appraiser or other expert shall not be required with respect to any
securities so pledged, if the fair value to the Company of such
securities, as set forth pursuant to the provisions of this paragraph
is less than the greater of (i) Twenty-five Thousand Dollars ($25,000)
or (ii) one per centum (1%") of the aggregate principal amount of the
bonds at the time outstanding;
(9) if any property is being certified to the Trustee
pursuant to the provisions of paragraph (3) or paragraph (4) of
subsection (A) of this Section, a certificate or opinion of an
engineer, appraiser or other expert stating separately the fair value
to the Company of such property certified pursuant to the provisions
of paragraph (3) of subsection (A) of this Section and of such
property certified pursuant to paragraph (4) of subsection (A) of this
Section; and if
(a) within six months prior to the date of the
acquisition thereof by the Company, such property has been
used or operated
<PAGE> 149
137
by a person or persons other than the Company in a business
similar to that in which it has been or is to be used or
operated by the Company, and
(b) the fair value to the Company of such
property, as set forth in such certificate or opinion, is not
less than the greater of (i) Twenty-five Thousand Dollars
($25,000) or (ii) one per centum (1%) of the aggregate
principal amount of the bonds at the time outstanding,
such certificate or opinion shall be made by an independent engineer,
appraiser or other expert; and
(10) an opinion of counsel
(a) stating that the Company has full corporate
authority and all necessary permission from governmental
authorities to dispose of the property to be released and to
acquire, own and operate any property or securities to be
received as consideration therefor, or that no such permission
is required therefor, and unless such opinion shall show that
no consent or approval of any governmental authority, is
requisite to the acquisition, ownership or operation of such
property or securities, it shall specify and be accompanied by
officially authenticated certificates, or other documents, by
which such consent or approval is or may be evidenced;
(b) stating that the unfunded lien bonds, if any,
the principal amount of which is being deducted pursuant to
the proviso following paragraph (4) of subsection (A) of this
Section, are secured by an unfunded lien existing on some or
all of the mortgaged and pledged property to be released and
that no other part of the mortgaged and pledged property is
subject to such unfunded lien;
(c) stating that any purchase money obligations
and any securities pledged with the Trustee, or with the
trustee or other holder of an unfunded lien, pursuant to the
provisions of paragraph (2) of subsection (A) of this Section
or paragraph (4) of subsection (A) of this Section, have been
validly issued, that such purchase money obligations and
securities have been duly
<PAGE> 150
138
subjected to the lien of this Indenture or assigned to the
Trustee subject to such unfunded lien, that any shares of
stock included in any such securities are fully paid and
nonassessable, and that any such purchase money obligations
are secured by a valid lien upon property released, subject to
no liens prior or equal to the lien thereof except any liens
which were permitted liens on such property released and
except any unfunded lien subject to which such property
released was sold or exchanged; and
(d) specifying the deeds, indentures supplemental
hereto or instruments of further assurance necessary to
subject to the lien of this Indenture all the right, title and
interest of the Company in and to the property then being
certified to the Trustee pursuant to the provisions of
paragraphs (3) and (4) of subsection (A) of this Section, or
stating that no such instruments are necessary for such
purpose, stating that the Company has title to, or
contemporaneously with the release of the property to be
released will have title to, such property, that this
Indenture is, or upon the delivery of the deeds, indentures
supplemental hereto or instruments of further assurance, if
any, specified in said opinion, will be, a lien upon such
property subject to no defect in title and, in the case of
property certified pursuant to paragraph (3) of subsection (A)
of this Section, subject to no lien thereon prior to the lien
of this Indenture except permitted liens.
(C) If under the provisions of any mortgage or other instrument
which is an unfunded lien there is required to be made with the trustee or
other holder of such unfunded lien a deposit of cash or pledge of purchase
money obligations or securities in order to obtain a release therefrom of any
part of the mortgaged and pledged property to be released' from the lien
hereof, the Company shall not be required to deposit or pledge with the Trustee
such cash, purchase money obligations or securities. In any such event, in lieu
of the deposit or pledge with the Trustee of such cash, purchase money
obligations or securities in accordance with the provisions of this Section or
Section 9.04 hereof, and in addition to the instruments required to be
delivered to the Trustee pursuant to this Section, the Company shall furnish to
the
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139
Trustee an opinion of counsel stating that such cash, purchase money
obligations or securities are required to be deposited or pledged with the
trustee or other holder of such unfunded lien, together with such instruments
as shall be stated in such opinion of counsel to be adequate to evidence the
right of the Trustee to receive such cash or purchase money obligations or
securities or any property substituted therefor remaining with such trustee or
other holder of such unfunded lien upon the discharge of such unfunded lien.
SECTION 9.04. (A) So long as the Company is not in default in the
payment of interest on any of the bonds then outstanding hereunder and none of
the completed defaults specified in Section 10.01 hereof shall have occurred
and shall be continuing, the Company may, in any calendar year, sell, exchange
or otherwise dispose of any bondable property of an aggregate value not
exceeding Twenty-five Thousand Dollars ($25,000), without compliance with the
provisions of Section 9.03, and the Trustee shall release the same upon receipt
by it of
(1) a written request of the Company for such release
evidenced by a writing signed in the name of the Company by its
President or one of its Vice-Presidents and its Treasurer or one of
its Assistant Treasurers;
(2) a certified copy of a resolution of the Board of
Directors authorizing or approving such request;
(3) an officers' certificate stating (i) that the Company
has sold, exchanged or otherwise disposed of, or has contracted to
sell, exchange or otherwise dispose of the property so to be released
(and briefly describing such property) for a consideration
representing the fair value of such property as stated in the
certificate of the engineer, appraiser or other expert delivered to
the Trustee pursuant to the provisions of paragraph (4) of this
subsection (A), and stating the nature of such consideration; (ii)
that such release is desirable in the conduct of the business of the
Company; and (iii) that the Company is not in default in the payment
of interest on any of the bonds then outstanding hereunder and that
none of the completed defaults specified in Section 10.01 hereof has
occurred and is continuing;
<PAGE> 152
140
(4) a certificate of an engineer, appraiser or other
expert as to the fair value of the property so to be released, and the
fair value of all other bondable property released pursuant to the
provisions of this subsection (A) since the beginning of the then
current calendar year, and as to the fair value to the Company of any
property to be received by the Company in exchange for the property so
to be released, and stating that, in the opinion of the signer or
signers, the proposed release will not impair the security under this
Indenture in contravention of the provisions thereof;
provided, however, that if the fair value of the property the release of which
is so requested shall be equal to or greater than one per centum (1%) of the
aggregate principal amount of the bonds at the time outstanding, the Trustee
shall release such property only upon compliance with the provisions of
Section 9.03.
The Company covenants that, upon receipt of such consideration, it
will deposit, pledge or subject to the lien of this Indenture (in accordance
with the provisions of paragraphs (4), (5) and (6) of subsection (B) of Section
9.03 hereof) the consideration, if any, received by it upon the sale, exchange
or other disposition of any property so released pursuant to the provisions of
this subsection (A) which shall be accompanied by an opinion of counsel that
the requirements of this paragraph have been complied with.
(B) The Trustee shall, whenever from time to time requested by the
Company in a writing signed in the name of the Company by its President or one
of its Vice-Presidents and its Treasurer or one of its Assistant Treasurers,
such request to be accompanied by a certified copy of a resolution of the Board
of Directors of the Company as provided by paragraph (2) of subsection (B) of
Section 9.03 hereof, but without requiring compliance with any other provisions
of Section 9.03 hereof, except as below specified, and irrespective of the
values stated in the certificate provided for in paragraph (2) of this
subsection (B), release from the lien hereof any nonbondable property (other
than cash, purchase money obligations received with respect to the release of
any bondable property, unfunded lien bonds,
<PAGE> 153
141
bonds authenticated and delivered hereunder, or obligations of a governmental
body or agency held by the Trustee, none of which shall be released except as
provided in other Sections hereof) upon receipt by the Trustee of:
(1) an officers' certificate containing (i) a statement
that the Company is not in default in the payment of the interest on
any bonds then outstanding hereunder and that none of the completed
defaults specified in Section 10.01 hereof has occurred and is
continuing, (ii) a brief description of the property so to be
released, (iii) a statement that the Company has sold or exchanged, or
contracted to sell or exchange, the property so to be released for a
consideration which may consist of any property or securities other
than unfunded lien bonds or bonds authenticated and delivered
hereunder, (iv) a statement that the property so to be released is
nonbondable property (other than cash, purchase money obligations
received with respect to the release of any bondable property,
unfunded lien bonds, bonds authenticated and delivered hereunder,
obligations of a governmental body or agency held by the Trustee), and
(v) a brief description of the entire consideration received and to be
received by the Company therefor;
(2) a certificate of an engineer, appraiser or other
expert, or, under the circumstances specified in paragraphs (7), (8)
and (9) of subsection (B) of Section 9.03 hereof, a certificate of an
independent engineer, appraiser or other expert, as to the fair value
of the property so to be released and the fair value to the Company of
the consideration specified in paragraph (1) of this subsection (B),
stating that, in the opinion of the signer or signers, the proposed
release will not impair the security under this Indenture in
contravention of the provisions thereof;
(3) the deposit, pledge or subjection to the lien of this
Indenture (in accordance with the provisions of paragraphs (4), (5)
and (6) of subsection (B) of Section 9.03 hereof) of the consideration
specified in paragraph (1) above; and
(4) an opinion of counsel in accordance with the
provisions of paragraph (10) of subsection (B) of Section 9.03 hereof.
<PAGE> 154
142
SECTION 9.05. Should any part of the mortgaged and pledged property be
taken by exercise of the power of eminent domain, or should any governmental
body at any time exercise any right which it may have to require the sale to
it, or to a purchaser designated by it, of any part of the mortgaged and
pledged property, the Trustee, upon request of the Company, shall release the
part of the mortgaged and pledged property so taken or sold, upon being
furnished with an opinion of counsel to the effect that such part of the
mortgaged and pledged property has been lawfully taken or sold as aforesaid.
The aforesaid opinion of counsel shall state the amount of proceeds received or
to be received for the property so taken or sold (which proceeds shall, in any
event, be required to be cash or obligations of a governmental body or agency)
and the amount so stated shall be deemed to be the fair value of such property
for the purposes of paragraph (5) of subsection (A) and paragraph (1) of
subsection (B) of Section 7.04 hereof. Subject to the provisions of subsection
(C) of Section 9.03 hereof, the proceeds of all property so taken or sold,
together with any amount paid to the Company in connection with such taking or
sale as severance damages to property of the Company not so taken or purchased,
shall be deposited or pledged with the Trustee.
SECTION 9.06. (A) So long as the Company is not in default in the
payment of the interest on any of the bonds then outstanding hereunder and none
of the completed defaults specified in Section 10.01 hereof shall have occurred
and be continuing, any money received by the Trustee pursuant to the provisions
of this Article IX or the provisions of Section 5.14 hereof and any money which
it is specifically provided may be withdrawn, used or applied pursuant to this
Section and any moneys received by the Trustee the withdrawal, use or
application of which is not otherwise provided for may, at the option of the
Company, evidenced by a writing signed in the name of the Company by its
President or a Vice-President and its Treasurer or an Assistant Treasurer, and
accompanied by an officers' certificate stating that the Company is not in
default in the payment of the interest on any of the bonds then outstanding
hereunder and none of the completed defaults specified in Section 10.01 hereof
has occurred and is continuing,
<PAGE> 155
143
(1) be withdrawn from time to time by the Company in an
amount equal to (i) the amount of bondable value of property additions
which the Company elects to make the basis of a withdrawal under this
Section and (ii) the principal amount of bonds authenticated and
delivered hereunder which might then be made the basis for the
authentication and delivery of bonds under the provisions of Section
4.04 hereof and which the Company elects to make the basis of a
withdrawal under this Section in lieu of the right of the Company to
the authentication and delivery of bonds on such basis; provided, that
in case the withdrawal is applied for in whole or in part upon the
basis of bonds authenticated and delivered hereunder which might then
be made the basis for the authentication and delivery of bonds under
the provisions of Section 4.04 hereof, the Company shall comply with
the provisions of Section 4.04 hereof, except the provisions therein
relating to Section 4.06 and Section 4.07 hereof; or
(2) be used by the Trustee for the purchase of bonds
issued hereunder in accordance with the provisions of Section 8.06
hereof; or
(3) be applied by the Trustee to the payment at maturity
of any bonds issued hereunder or the redemption of any bonds issued
hereunder as are by their terms redeemable before maturity, of such
series as may be designated by the Company or by the Trustee upon the
failure of the Company to make such designation, any such redemption
to be in the manner and subject to the conditions provided in the
bonds to be redeemed and in Article VIII hereof; and for such purpose
the Trustee may publish notice of redemption in the name of the
Company or in its own name as Trustee;
provided, however, that, notwithstanding the foregoing, any money received by
the Trustee in connection with any release of property upon any acquisition
thereof by any municipal corporation or other governmental subdivision or
governmental body or public authority shall be immediately used or applied by
the Trustee as provided in paragraphs (2) and (3) of this subsection (A) except
that if the Company shall fail to designate the series to be purchased or
<PAGE> 156
144
redeemed or shall fail to take any other action required in connection with
such use or application of such money, the Trustee shall do so. If any money
received by the Trustee pursuant to the provisions this Article IX or the
provisions of Section 5.14 hereof or any money which it is specifically
provided may be withdrawn, used or applied pursuant to the provisions of this
Section, and any moneys received by the Trustee the withdrawal, use or
application of which is not otherwise provided for shall not be so withdrawn,
used or applied within the next succeeding three years after the same shall
have been deposited with the Trustee, it shall thereafter be used or applied by
the Trustee as provided in paragraphs (2) and (3) of this subsection (A) except
that if the Company shall fail to designate the series to be purchased or
redeemed or shall fail to take any other action required in connection with
such use or application of such money, the Trustee shall do so.
(B) So long as the Company is not in default in the payment of the
interest on any of the bonds outstanding hereunder and none of the completed
defaults specified in Section 10.01 hereof shall have occurred and be
continuing, any money received by the Trustee representing the release or the
taking by eminent domain or purchase of nonbondable property (other than
purchase money obligations or obligations of a governmental body or agency
received with respect to the release of bondable property) may also, at the
option of the Company, evidenced by a writing signed in the name of the Company
by its President or a Vice-President and its Treasurer or an Assistant
Treasurer, and irrespective of the value stated in the certificate provided for
in paragraph (2) of this subsection (B), be withdrawn from time to time by the
Company to be applied to the purchase of any nonbondable property or
reimbursements of the purchase price thereof, upon receipt by the Trustee of,
(1) an officers' certificate containing (i) a statement
that the Company is not in default in the payment of the interest on
any bonds then outstanding hereunder and that none of the completed
defaults specified in Section 10.01 hereof has occurred and is
continuing, (ii) a statement that the Company has purchased, or
contracted to purchase the property so to be purchased, (iii) a
statement that the property so to be purchased is nonbondable
<PAGE> 157
145
property, and (iv) a brief description of the property so purchased;
(2) a certificate of an engineer, appraiser or other
expert, or, under the circumstances specified in paragraph (9) of
subsection (B) of Section 9.03 hereof, a certificate of an independent
engineer, appraiser or other expert, as to the fair value to the
Company of the property so purchased;
(3) the subjection to the lien of this Indenture (in
accordance with the provisions of paragraph (6) of subsection (B) of
Section 9.03 hereof) of the property so purchased; and
(4) an opinion of counsel in accordance with the
provisions of subparagraph (d) of paragraph (10) of subsection (B) of
Section 9.03 hereof.
SECTION 9.07. (A) All unfunded lien bonds received by the Trustee
shall be held by the Trustee as part of the mortgaged and pledged property and
without impairment of the obligation represented thereby or the lien thereof
for the protection and further security for the bonds issued hereunder. Except
during the continuance of a completed default specified in Section 10.01, no
payment by way of interest or otherwise on any of the unfunded lien bonds held
by the Trustee shall be made or demanded and the coupons thereto pertaining as
they mature shall be cancelled by the Trustee and delivered so cancelled to the
Company, unless the Company shall direct with respect to any such unfunded lien
bonds to have such payments made and demanded, in which event the Company shall
be entitled to receive all such payments. In any event, except during the
continuance of a completed default as aforesaid, all moneys received by the
Trustee (a) on account of the principal of or interest or premium on said
unfunded lien bonds, or (b) by reason of the sale or delivery of any of said
bonds to the sinking fund or other similar device for the retirement of bonds
provided for in any lien securing the same (as to both (a) and (b) above, to
the extent that an officers' certificate delivered to the Trustee shall state
that such moneys do not represent the proceeds of insurance on, or of the
release of, or of the taking by eminent domain or purchase of, bondable
property including the proceeds of and substitutes for any thereof) shall be
paid over by the Trustee to or upon
<PAGE> 158
146
the written order of the Company; provided that if and to the extent that such
officers' certificate shall not state that such moneys do not represent the
proceeds of insurance on, or of the release of, or of the taking by eminent
domain or purchase of, bondable property, including the proceeds of and
substitutes for any thereof, the same shall be retained by the Trustee and held
as part of the mortgaged and pledged property, and may be withdrawn, used or
applied, in the manner, for the purposes, and subject to the conditions
provided in Section 9.06 hereof.
So long as the Company is not in default in the payment of the
interest on any bonds then outstanding hereunder and none of the completed
defaults specified in Section 10.01 hereof shall have occurred and be
continuing, the Trustee, if so directed by the Company, shall cause any
unfunded lien bonds held by it to be cancelled, and the obligation thereby
evidenced to be satisfied and discharged, provided that it shall have received
notice from the trustee or other holder of the unfunded lien securing the same
that such trustee or other holder, on receipt of the unfunded lien bonds held by
the Trustee, will cause such unfunded lien to be satisfied and discharged of
record; and upon similar direction, shall sell or surrender any unfunded lien
bonds held by it subject to this Section 9.07 (A) to the trustee or other
holder of the unfunded lien securing the same for cancellation, or to be held
uncancelled for the purposes of any sinking fund or other similar device for
the retirement of bonds for which provision may have been made in the unfunded
lien securing the unfunded lien bonds so sold or surrendered, provided,
however, that no such unfunded lien bonds shall be caused by the Trustee to be
cancelled or shall be sold or surrendered for cancellation as aforesaid, until
the Trustee shall have received (i) an opinion of counsel to the effect (a)
that there is no lien outstanding (other than permitted liens) covering any
part of the property upon which such unfunded lien exists junior to such
unfunded lien and senior to the lien hereof, or (b) that the provisions of the
unfunded lien securing the unfunded lien bonds so to be sold or surrendered are
such that no transfer of ownership or possession of such unfunded lien bonds by
the trustee or other holder of such unfunded lien is permissible thereunder
except upon default thereunder or except to the Trustee hereunder to be held
subject to the provisions of this Section 9.07 (A), or to the trustee or other
holder of an unfunded
<PAGE> 159
147
lien for cancellation or to be held uncancelled under the terms of an unfunded
lien under like conditions, or (c) that all of the property subject to the
unfunded lien, with respect to which such unfunded lien bonds have been
deposited with the Trustee, has been released from the lien of this Indenture
and (ii) an officers' certificate stating that all conditions precedent,
specified in this Indenture, to the right of the Company to have said unfunded
lien bonds cancelled and the obligation thereby evidenced satisfied and
discharged have been complied with; and provided further that if all of the
property subject to the unfunded lien securing unfunded lien bonds deposited
with the Trustee, shall be released from the lien of this Indenture, such
unfunded lien bonds shall be delivered to or upon the order of the Company.
Unless a completed default specified in Section 10.01 shall have
occurred, the Trustee may exercise, but only with the consent of the Company,
and upon the occurrence of any completed default specified in Section 10.01
hereof, the Trustee may exercise in its absolute discretion, without the
consent of the Company, any and all rights of a bondholder with respect to the
unfunded lien bonds then held by the Trustee or may take any other action which
shall in its judgment be desirable or necessary to avail itself of the security
created for such unfunded lien bonds by the unfunded liens securing the same.
The Trustee shall be reimbursed from the trust estate for all expenses by it
properly incurred by reason of any such action taken, without negligence or bad
faith, with interest upon all such expenditures at the rate of six per centum
(6%) per annum; and the amount of such expenses and interest shall, until
repaid, constitute a lien upon the mortgaged and pledged property prior to the
lien of the bonds and coupons issued hereunder.
(B) Any purchase money obligations, obligations of a governmental
body or agency and any other evidences of indebtedness other than unfunded lien
bonds held by the Trustee, may be released by the Trustee from the lien of this
Indenture upon payment to the Trustee of the unpaid portion of such obligations
or evidences of indebtedness. The principal of and interest on any such
securities shall be collected by the Trustee as and when the same become
payable. Cash received upon the payment of the principal of or the release of
any such securities
<PAGE> 160
148
may be withdrawn, used or applied pursuant to the provisions of Section 9.06
hereof. Upon receipt by the Trustee of an officers' certificate stating that,
so far as known to the signers, the Company is not in default in the
performance of any of the covenants or provisions of this Indenture, the
interest received by the Trustee on any such securities, except that due
subsequent to the maturity thereof, together with any premium received upon
payment of the principal thereof, shall be paid over to the Company.
All sums received by the Trustee upon the redemption or retirement of
any stock held by the Trustee under this Article IX may be withdrawn, used or
applied pursuant to the provisions of Section 9.06 hereof. All dividends
received by the Trustee on any such stock shall be paid over to the Company,
except dividends declared payable in stock of the corporation declaring the
same and except where such dividends shall have been declared from or with
respect to other than earnings of the corporation declaring the same, and such
payment shall be made upon receipt by the Trustee of an officers' certificate
stating that, so far as known to the signers, the Company is not in default in
the performance of any of the covenants or provisions of this Indenture and
stating that the dividend to be paid over to the Company is not a dividend
excepted as aforesaid; and to that end the Trustee upon receipt of such an
officers' certificate shall from time to time deliver to the Company such
suitable assignments and orders as the Company may reasonably request for the
payment of such dividends. Dividends on such stocks declared from or with
respect to other than earnings of the corporation declaring the same may be
withdrawn, used or applied pursuant to the provisions of Section 9.06 hereof.
So long as the Company is not in default in the payment of the interest on any
bonds then outstanding hereunder and none of the completed defaults specified
in Section 10.01 hereof shall have occurred and be continuing, the Company
shall have the right to vote any such stock or voting securities held by the
Trustee; and to that end the Trustee shall from time to time deliver to the
Company such suitable powers of attorney and proxies as the Company may
reasonably request to vote on any such securities, but no such power of
attorney or proxy shall be voted in contravention of the terms of this
Indenture.
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149
So long as the Company is not in default in the payment of the
interest on any bonds then outstanding hereunder and none of the completed
defaults specified in Section 10.01 hereof shall have occurred and be
continuing, the Trustee may exercise, but only with the consent of the Company,
and, upon the occurrence of any of such defaults, the Trustee may exercise in
its absolute discretion, without the consent of the Company, any and all rights
of an owner with respect to any such obligations, evidences of indebtedness or
stock held under this Article IX and may take any action which in its judgment
may be desirable or necessary to avail itself of the benefit of any security
created for any such obligations, evidences of indebtedness or stock including,
but not in limitation, the extension or modification thereof at a higher or
lower or the same rate of interest or dividends and joining in any plan of
reorganization, readjustment, arrangement, composition or similar plan with
respect thereto, whether voluntary or involuntary, and may accept and hold
hereunder any new obligations or securities issued in exchange therefor under
any such plan; but, subject to the provisions of Sections 14.02 and 14.03
hereof, the Trustee shall be under no obligation to exercise any such rights
unless requested so to do and reasonably indemnified by the holders of not less
than a majority in principal amount of the bonds then outstanding hereunder.
The Trustee shall be reimbursed by the Company upon demand for all expenses by
it properly incurred by reason of any such action taken, with interest upon all
such expenditures at the rate of six per centum (6%) per annum; and the amount
of such expenses and interest shall, until repaid, constitute a lien upon the
mortgaged and pledged property prior to the lien of the bonds and coupons
issued hereunder.
SECTION 9.08. In case the mortgaged and pledged property or any part
thereof shall be in the possession of a receiver, trustee or other court
officer lawfully appointed, the powers in and by this Article IX conferred upon
the Company may, notwithstanding the occurrence and continuance of a completed
default specified in Section 10.01 hereof, be exercised by such receiver,
trustee or other court officer under the order or orders of the court
appointing such receiver, trustee or other court officer. If the Trustee shall
be in possession
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of the mortgaged and pledged property or any part thereof under any provision
of this Indenture, then all the powers in this Article IX conferred upon the
Company may, notwithstanding the occurrence and continuance of a completed
default specified in Section 10.01 hereof, be exercised by the Trustee.
SECTION 9.09. The Trustee shall not be required under any of the
provisions of this Article IX to release any part of the mortgaged and pledged
property from the lien hereof or to pay over any moneys held by it at any time
when the Company is in default in payment of the interest on any bonds then
outstanding hereunder or when a completed default specified in Section 10.01
hereof shall have occurred and be continuing; but, notwithstanding any default
in payment of such interest or any such completed default specified in Section
10.01 hereof, the Trustee may do so, and the Company may exercise any of the
powers conferred upon it in and by this Article IX, upon compliance with the
conditions specified in this Article IX with respect thereto, if the Trustee in
its discretion, subject to the provisions of Sections 14.02 and 14.03, hereof
shall deem that such release or payment or such exercise of powers by the
Company will not adversely affect the interests of the holders of the bonds, and
shall consent thereto in writing.
SECTION 9.10. In no event shall any purchaser or purchasers of any
part of the mortgaged and pledged property sold or disposed of under any
provisions of this Article IX be required to ascertain the authority of the
Trustee to execute any release, to see to the application of any purchase money
or to inquire as to any facts required by the provisions hereof for the
exercise of any authority.
SECTION 9.11. Any new property acquired to take the place of any
property released or to be substituted for any property held by the Trustee or
in connection with the withdrawal of cash under any provision of this Article
IX shall forthwith and without further conveyance become subject to the lien of
and be covered by this Indenture as a part of the mortgaged and pledged
property.
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ARTICLE X.
REMEDIES OF TRUSTEE AND BONDHOLDERS UPON DEFAULT.
SECTION 10.01. Upon the occurrence of any one or more of the following
events (herein sometimes called "completed defaults"), viz.:
(a) Default in the payment of the principal of any bond
hereby secured when the same shall have become due and payable,
whether at maturity as therein expressed or by declaration, or
otherwise; or
(b) Default continued for thirty days in the payment of any
interest upon any bond hereby secured; or
(c) Default in the payment of any installment of any sinking
fund or other purchase fund for a period of fifteen days after the
same shall become due and payable; or
(d) Default in the payment of principal (whether at maturity
as therein expressed or by declaration, or otherwise) of, or premium,
if any, or interest upon any outstanding unfunded lien bonds,
continued beyond the period of grace, if any, specified in the
unfunded lien securing the same; or
(e) By decree of a court of competent jurisdiction the
Company shall be adjudicated a bankrupt or insolvent, or an order
shall be made for the winding up or liquidation of the affairs of the
Company or approving a petition seeking reorganization or readjustment
of the Company under the Federal bankruptcy laws or other law or
statute of the United States of America or of the State of
incorporation of the Company, or, by order of such a court, a trustee
or liquidator or a receiver or receivers shall be appointed of the
Company or of all or substantially all of the property of the Company
or of all or any part of the mortgaged and pledged property, and any
such decree or order shall have continued unstayed on appeal or
otherwise and in effect for a period of thirty days; or
(f) The Company shall file a petition in voluntary
bankruptcy, or shall consent to the filing of any such petition, or
shall
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make an assignment for the benefit of creditors or shall consent to
the appointment of a trustee or liquidator or receiver of the Company
or of all or any part of its property, or shall file a petition or
answer or consent seeking reorganization or readjustment under the
federal bankruptcy laws or other law or statute of the United States
of America or any State thereof, or shall consent to the filing of any
such petition, or shall file a petition to take advantage of any
debtor's act; or
(g) Default continued for thirty days after written notice
shall have been given to the Company by the Trustee (or to the Company
and the Trustee by the holders of at least twenty-five per centum
(25%) in principal amount of the bonds at the time outstanding) in the
due observance or performance of any other covenant, agreement or
condition on the part of the Company in the bonds or in this Indenture
contained;
the Trustee by notice in writing delivered to the Company, or the holders of
not less than twenty-five per centum (25%) in principal amount of the bonds
then outstanding hereunder by notice in writing delivered to the Company and
the Trustee, may declare the principal of all bonds hereby secured then
outstanding and the interest accrued thereon immediately due and payable, and
such principal and interest shall thereupon become and be immediately due and
payable. This provision, however, is subject to the condition that if, at any
time after the principal of the bonds shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, or any sale of the
mortgaged and pledged property shall have been made under this Indenture, all
arrears of interest upon all the bonds (with interest on overdue installments
of interest at the highest rate of interest borne by any of the bonds
outstanding under the Indenture) and the principal (and premium, if any) of any
and all bonds which shall have become due otherwise than by acceleration and
the expenses of the Trustee, shall be paid by the Company, or collected out of
the mortgaged and pledged property, or be provided for by the deposit with the
Trustee of a sum sufficient to pay the same, and any and all defaults under the
Indenture, other than the nonpayment of
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principal on bonds which shall not have become due by their terms shall have
been remedied--then and in every such case the holders of not less than a
majority in aggregate principal amount of the bonds then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
SECTION 10.02. The Trustee shall, within ninety days after the
occurrence thereof, give to the bondholders, in the manner and to the extent
provided in subsection (C) of Section 7.04 hereof, notice of all defaults known
to the Trustee, unless such default shall have been cured before the giving of
such notice (the term "defaults" for the purposes of this Section being hereby
defined to be the events specified in paragraphs (a), (b), (c), (d), (e), (f)
and (g) of Section 10.01 hereof not including any periods of grace provided for
in said paragraphs), but, in the case of any default of the character specified
in said paragraph (g), no such notice shall be given by the Trustee until at
least sixty days after the occurrence of such default; provided that, except in
the case of default in the payment of the principal of or premium, if any, or
interest on any of the bonds, or in the payment of any sinking or purchase fund
installment, the Trustee. shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust
committee of directors and/or responsible officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
bondholders.
SECTION 10.03. Upon the occurrence of one or more completed defaults,
the Company, upon demand of the Trustee, shall forthwith surrender to the
Trustee, the actual possession of, and it shall be lawful for the Trustee, by
such officer or agent as it may appoint, to take possession of, all the
mortgaged and pledged property (with the books, papers and accounts of the
Company), and to hold, operate and manage the same, and from time to time to
make all needful repairs and such extensions, additions and improvements as to
the Trustee shall seem wise; and to receive the tolls, rents, revenues, issues,
earnings, income, products and profits thereof, and out of the same to pay all
proper costs, liabilities and
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expenses of so taking, holding sad managing the same, including reasonable
compensation to the Trustee, its agents and counsel, and any charges of the
Trustee hereunder, and any taxes and assessments and other charges prior to the
lien of this Indenture which the Trustee may deem it wise to pay, and all
expenses of such repairs, extensions, additions and improvements, and to apply
the remainder of the moneys so received by the Trustee, subject to the
provisions of Section 10.12 hereof with respect to extended, transferred or
pledged coupons or claims for interest, as follows:
First. In case the principal of none of the bonds shall have
become due, by declaration or otherwise, and be unpaid, to the payment
of interest in the order of the maturity of the installments of such
interest (with interest on overdue installments of interest, to the
extent permitted by law, at the highest rate of interest borne by any
of the bonds outstanding under the Indenture), such payments to be
made ratably to the persons entitled thereto, without distinction as
to series, according to the amount due to each by the terms of the
bond or coupon held by him; or
Second. In case the principal of any of the bonds, less than
the whole number outstanding, shall have become due by their terms, or
by redemption, to the payment of all the interest then due on all the
bonds outstanding in the order of the maturity of the installments of
interest (with interest on overdue installments of interest, to the
extent permitted by law, at the highest rate of interest borne by any
of the bonds outstanding under the Indenture), and, if any surplus
remains, toward the payment of the principal of the bonds then due,
such payments in every instance to be made ratably to the persons
entitled thereto according to the amounts due to each by the terms of
the bond or coupon held by him; or
Third. In case the principal of all the bonds shall have
become due, by declaration or otherwise, to the payment of the whole
amount then due and unpaid either for principal or interest, or for
both principal and interest, upon the bonds (with interest on overdue
installments of interest, to the extent permitted by law, at the
highest rate of interest borne by any of the bonds outstanding under
the Indenture); and in case such proceeds shall be insufficient to pay
in full the whole amount so due and unpaid, then, to the payment of
such principal and interest ratably, according to
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the aggregate of such principal and unpaid interest without preference
or priority of any one series over any other series of bonds, or of
principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest; and
then
Fourth. In case any bonds have been called for redemption and
default made in the payment of the redemption price, to the payment of
any premiums payable on such redemption, ratably and without
preference or priority of any one series over any other;
any payment as aforesaid shall be made only upon presentation of the several
bonds or coupons, as the case may be, for stamping thereon the payment if only
partially paid and for surrender thereof if fully paid.
Upon payment in full, as above provided, of whatever sum or sums may
be due for principal, premium and interest, or otherwise, the mortgaged and
pledged property (other than cash or securities required to be held by the
Trustee under the terms of this Indenture otherwise than pursuant to this
Section) in the possession of the Trustee and any excess cash in the possession
of the Trustee arising pursuant to this Section shall be returned to the
Company, its successors or assigns, as though no default had occurred.
Upon the occurrence of one or more completed defaults, or if a receiver
or the Trustee shall have entered into possession of the mortgaged and pledged
property, the Trustee shall be entitled to receive all sums payable for
principal, interest or otherwise upon any bonds or obligations that shall then
be in its possession and subject to the lien of this Indenture and to apply,
as hereinbefore in this Section provided, the moneys so received; and as holder
of any such bonds, to perform any and all acts or to make and execute any and
all transfers, requests, requisitions or other instruments for the purpose of
carrying out the provisions of this Section. In the event that a receiver of
the mortgaged or pledged property, or any part thereof, shall have been
appointed and shall be in possession thereof, the Trustee from time to time in
its discretion may turn over any part or all of the moneys so collected and
remaining in the hands of the Trustee to such receiver and may co-operate with
such receiver in managing and operating the mortgaged and pledged property in
such manner as the Trustee shall deem for the best interest of the holders of
the bonds.
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Section 10.04. Upon the occurrence of one or more completed defaults
it shall be lawful for the Trustee by such officer or agent as it may appoint,
with or without entry, to sell all the mortgaged and pledged property as an
entirety, or in such parcels as the holders of a majority in principal amount
of the bonds outstanding hereunder shall in writing request, or in the absence
of such request, as the Trustee may determine, at public auction, at some
convenient place in the City of Alexandria, State of Louisiana, or such other
place or places as may be required by law, at such time and upon such terms as
the Trustee may fix and briefly describe in the notice of such sale, having
first given notice of such sale by publication in at least one daily newspaper
of general circulation in the place or places where such sale is to take place,
at least once a week for four successive weeks (on any business day of each
such week) next preceding such sale, and any other notice which may be required
by law, and from time to time to adjourn such sale in its discretion by
announcement at the time and place fixed for such sale without further notice.
Section 10.05. In case of the breach of any of the covenants,
agreements or conditions of this Indenture, the Trustee shall have the right
and power to take appropriate judicial proceedings for the enforcement of its
rights and the rights of the bondholders hereunder by a suit or suits at law,
or in equity, for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, or for any or all of such purposes, as the Trustee shall deem
most effectual. The Trustee shall have power to institute and to maintain such
suits and proceedings as it may deem to be necessary or expedient to prevent
any impairment of the security hereunder by any acts of the Company, or of
others, in violation of this Indenture, or which are unlawful, or as the
Trustee may deem to be necessary or expedient to preserve and to protect its
interests and the security and interests of the holders of the bonds in respect
of the mortgaged and pledged property and in respect of the income, earnings,
issues and profits arising therefrom; including power to institute and to
maintain suits or proceedings to restrain the enforcement of, or compliance
with, or the observance of, any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid, if the
enforcement of, compliance with or observance of such enactment, rule or order
would impair the security hereunder or be prejudicial to the interests of the
holders of the bonds.
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In case of a completed default hereunder, the Trustee may either after
entry, or without entry, proceed by suit or suits at law or in equity or by any
other appropriate remedy to enforce payment of the bonds then outstanding
hereunder and to foreclose this mortgage and to sell the mortgaged and pledged
property under the judgment or decree of a court of competent jurisdiction; and
it shall be obligatory upon the Trustee to take action, either by such
proceedings or by the exercise of its powers with respect to entry or sale, as
it may determine, upon being requested in writing so to do by the holders of
not less than a majority in principal amount of the bonds then outstanding
hereunder and, subject to the provisions of Sections 14.02 and 14.03 hereof,
upon being reasonably indemnified.
Section 10.06. Anything in this Indenture to the contrary
notwithstanding, the holders of not less than a majority in principal amount of
the bonds then outstanding hereunder shall have the right, at any time, to
direct the time, method and place of conducting all proceedings to be taken for
any sale of the mortgaged and pledged property, or for the foreclosure of this
Indenture, or for the appointment of a receiver or any other proceedings
hereunder for any remedy available to the Trustee or for exercising any trust
or power conferred upon the Trustee under this Indenture; provided that such
direction shall not be otherwise than in accordance with the provisions of law
and of this Indenture and subject to the provisions of Sections 14.02 and 14.03
hereof, provided that if the Trustee by its responsible officers shall in good
faith determine that the action or proceeding so directed would involve it in
personal liability or be unjustly prejudicial to the rights of the
non-assenting holders of bonds, it shall have the right to decline to follow
any such direction, The holders of not less than two-thirds in aggregate
principal amount of the bonds outstanding may on behalf of the holders of all
of the bonds waive any past default hereunder and its consequences except a
completed default specified in paragraphs (a) and (b) of Section 10.01 hereof;
provided, however, that the holders of not less than a majority in aggregate
principal amount of the bonds then outstanding may waive defaults and rescind
and annul any declaration and its consequences as provided in Section 10.01
hereof. In the case of any such waiver, the Company, the Trustee and the
holders of the bonds shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 10.07. In case of a completed default hereunder, and upon the
filing of a bill in equity, or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the bondholders under this Indenture,
the Trustee shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the mortgaged and pledged property, and of the tolls,
rents, revenues, issues, earnings, income, products and profits thereof,
pending such proceedings, with such powers as the court making such appointment
shall confer.
Section 10.08. Upon any sale being made under or by virtue of this
Indenture, whether under the power of sale hereby given or under judgment or
decree in any judicial proceedings for the foreclosure or otherwise for the
enforcement of this Indenture, the principal of all bonds then secured hereby,
if not previously due, shall at once become and be immediately due and payable.
SECTION 10.09. Upon any such sale made under or by virtue of this
Indenture, whether under the power of sale hereby given or under judgment of
decree in any judicial proceedings for foreclosure or otherwise for the
enforcement of this Indenture, any purchaser, for the purpose of making
settlement or payment for the property purchased shall be entitled to use and
apply any of the bonds and any matured and unpaid interest obligations thereon,
by presenting the same so that there may be credited as paid thereon, the sums
payable out of the net proceeds of such sale in respect of such bonds and such
interest obligations, after allowing for the proportion of the total purchase
price required to pay the cost and expenses of the sale, compensations and
other charges, and thereupon such purchaser shall be credited on account of
such purchase price payable by him, with the portion of such net proceeds that
shall be applicable to the payment of, and that shall have been credited in
respect of, the bond so turned in; and at any such sale any bondholder may bid
for and purchase such property, may make payment on account thereof, as
aforesaid, and upon compliance with the terms of sale, may hold, retain and
dispose of such property without further accountability therefor. The
provisions of this Section are subject to the provisions of Section 10.12
hereof.
SECTION 10.10. Upon the completion of any sale under or by virtue of
this Indenture, whether under the power of sale hereby given or under judgment
or decree in any judicial proceedings for foreclosure or otherwise
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for the enforcement of this Indenture, the Trustee or the court officer
conducting the sale shall execute and deliver to the accepted purchaser or
purchasers a good and sufficient deed or deeds of conveyance of the property
and franchises sold; and the Trustee and its successors are hereby appointed
the true and lawful attorney and attorneys, irrevocable, of the Company, in its
name and stead, to make all necessary deeds and conveyances of the property
thus sold; and for that purpose they may execute all necessary deeds and
instruments of assignment and transfer, and may substitute one or more persons
with like power, the Company hereby ratifying and confirming all that its said
attorney or attorneys, or such substitute or substitutes, shall lawfully do by
virtue hereof. Nevertheless, the Company shall, if so requested by the Trustee,
ratify such sale by executing and delivering to the Trustee or to such
purchaser or purchasers as may be designated in such request, any such
instruments as, in the judgment of the Trustee, may be advisable. Upon any such
sale the receipt of the Trustee or of the officer making such sale shall be a
sufficient discharge to the purchaser or purchasers at any sale for his or
their purchase money and such purchaser or purchasers, his or their assigns or
personal representatives, shall not, after paying such purchase money and
receiving such receipt of the Trustee or of such officer therefor, be obliged
to see to the application of such purchase money, or be in anywise answerable
for any loss, misapplication or non-application thereof.
SECTION 10.11. Any such sale made under or by virtue of this
Indenture, whether under the power of sale hereby given or under judgment or
decree in any judicial proceedings for foreclosure or otherwise for the
enforcement of this Indenture, shall operate to divest all right, title,
interest, claim and demand whatsoever, either at law or in equity, of the
Company, of, in and to the property so sold, and shall be a perpetual bar both
at law and in equity against the Company, its successors and assigns and
against any and all persons, firms or corporations claiming or who may claim
the property sold or any part thereof, from, through or under the Company, its
successors or assigns.
SECTION 10.12. The proceeds of any sale made under or by virtue of this
Indenture, whether under the power of sale hereby given or under judgment or
decree in any judicial proceedings for the foreclosure or otherwise for the
enforcement of this Indenture, together with any other
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amounts of cash which may then be held by the Trustee as part of the mortgaged
and pledged property, shall be applied, as follows:
First--To the payment of all taxes, assessments, governmental
charges or liens prior to the lien of this Indenture, except those
subject to which such sale shall have been made, and of all the costs
and expenses of such sale, including reasonable compensation to the
Trustee, its agents and attorneys, and of all other sums payable to
the Trustee hereunder by reason of any expenses or liabilities
incurred (without negligence or bad faith on the part of the Trustee)
or advances made in connection with the management or administration
of the trusts hereby created;
Second--To the payment in full of the amounts then due and
unpaid for principal and interest upon the bonds then secured hereby
(with interest on overdue installments of interest, to the extent
permitted by law, at the highest rate of interest borne by any of the
bonds outstanding under this Indenture); and in case such proceeds
shall be insufficient to pay in full the amounts so due and unpaid,
then to the payment thereof ratably, without preference or priority of
principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, any
such payment to be made only upon presentation of the several bonds
and coupons for stamping thereon the payment if only partially paid
and for surrender thereof if fully paid; provided, however, that if
any coupon or claim for interest upon any of the bonds secured hereby
shall have been funded, or if the time for payment of any such coupon
or claim for interest shall have been extended, except pursuant to
action taken under Article XVI hereof, whether or not by or with the
consent of the Company, or if any thereof at or after maturity shall
have been transferred or pledged separate from the bond to which they
relate, such coupons or claims for interest shall not be entitled in
case of default hereunder to the benefit or security of this Indenture
except after the prior payment in full of the principal of all bonds
issued hereunder and then secured hereby and of all coupons and claims
for interest on such bonds the payment of which has not been so
extended, or not so transferred or pledged, but the foregoing proviso
shall not be applicable to any coupon or claim for interest, the time
for the payment of which shall
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have been extended, if such extension be pursuant to a plan proposed
by the Company to all holders of any one or more series of bonds then
outstanding and accepted by and binding upon the holder of such coupon
or claim for interest;
Third--In case any bonds have been called for redemption and
default made in the payment of the redemption price, to the payment of
any premiums payable on such redemption, ratably and without
preference or priority of any one series over any other;
Fourth--Any surplus remaining to the Company, its successors
or assigns or to whomsoever may be lawfully entitled to receive the
same.
SECTION 10.13. Neither the Company nor any one claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension, redemption or other laws now or
hereafter in force in any locality where any of the mortgaged and pledged
property may be situated, in order to prevent or hinder the enforcement or
foreclosure of this Indenture, or the absolute sale of the mortgaged and
pledged property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchaser or purchasers thereat, but the
Company, for itself and all who may claim through or under it, hereby waives
the benefit of all such laws and hereby waives all right of appraisement and
redemption to which it may be entitled under the laws of the State of Louisiana
or of any other state where any of the mortgaged and pledged property may be
situated. And the Company, for itself and all who may claim through or under
it, waives any and all right to have the estates comprised in the security
intended to be created hereby marshaled upon any foreclosure of the lien
hereof, and agrees that any court having jurisdiction to foreclose such lien
may sell the mortgaged and pledged property as an entirety.
SECTION 10.14. In case default shall be made in (a) the payment of the
principal (and premium, if any) of any bonds hereby secured when the same shall
become payable, whether at maturity, upon redemption, by declaration or
otherwise, or (b) the payment of any interest on any bonds hereby secured and
such default shall have continued for thirty (30) days--then (i) the Company
covenants that upon demand of the
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Trustee it will pay to the Trustee for the benefit of the holders of the bonds
and coupons then secured hereby, the whole amount due and payable on all such
bonds and coupons for principal (and premium, if any) and interest (with
interest upon the overdue installments of interest, to the extent permitted by
law, at the highest rate of interest borne by any of the bonds outstanding
under the Indenture), and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder, without
negligence or bad faith on the part of the Trustee, and (ii) the Trustee, in
its own name and as Trustee of an express trust, shall be entitled and
empowered to institute such action or proceeding at law or in equity as the
Trustee, being advised by its counsel, shall deem appropriate, for the
collection of the sums so due and unpaid and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company and any other obligor and collect in the
manner provided by law, out of the property of the Company and any other
obligor, wherever situated, the moneys adjudged or decreed to be payable.
The Trustee shall be entitled to institute and prosecute any action
and enforce any judgment or final decree as aforesaid, either before or after
or during the pendency of any proceedings for the enforcement of the lien of
this Indenture upon the mortgaged and pledged property and the right of the
Trustee to such judgment or final decree shall not be affected by any entry or
sale hereunder, or by the exercise of any other right, power or remedy for the
enforcement of the provisions of this Indenture or the foreclosure of the lien
hereof; and in case of a sale of any of the mortgaged and pledged property and
of the application of the proceeds of sale to the payment of the debt hereby
secured, the Trustee in its own name and as trustee of an express trust shall
be entitled to enforce payment of and to receive all amounts then remaining due
and unpaid upon any and all the bonds and coupons then outstanding hereunder,
for the benefit of the holders thereof, together with the costs and expenses of
collection, including reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any unpaid expenses or liabilities incurred by the
Trustee hereunder without negligence or bad faith on the part of the Trustee,
and shall be entitled to institute and prosecute any action and enforce any
judgment or final decree as aforesaid for any portion of the
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debt remaining unpaid, with interest. No judgment or decree obtained by the
Trustee and no levy of any execution upon any of the mortgaged and pledged
property or upon any other property, shall in any manner or to any extent
affect the lien of this Indenture upon the mortgaged and pledged property or
any part thereof, or any lien, rights, powers or remedies of the Trustee
hereunder, or any lien, rights, powers or remedies of the holders of the said
bonds, but such lien, rights, powers and remedies of the Trustee and of the
bondholders shall continue unimpaired as before. In case of any reorganization,
receivership, insolvency or bankruptcy proceedings affecting the Company or its
property, the Trustee, irrespective of whether the principal of the bonds shall
then be due and payable and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall have power to
intervene in such proceedings and take any action therein that may be permitted
by the court and shall be entitled to file and prove a claim for the entire
amount due and payable by the Company under this Indenture at the date of the
institution of such proceedings and for any additional amount which may become
due and payable by the Company hereunder after such date, without regard to or
deduction for any amount which may have been or which may thereafter be
received, collected or realized by the Trustee from or out of the mortgaged and
pledged property or any part thereof or from or out of the proceeds thereof or
any part thereof.
Any moneys thus collected or received by the Trustee under this
Section or Section 10.20 hereof shall be applied by it first to the payment of
its proper expenses, liabilities (incurred without negligence or bad faith),
disbursements and compensation and the proper expenses, liabilities (incurred
without negligence or bad faith), disbursements and compensation of its agents
and attorneys, and, second, toward payment of the amounts then due and unpaid
upon such bonds and coupons in respect of which such money shall have been
collected, ratably and without preference or priority of any kind (subject to
the provisions of Section 10.12 hereof) according to the Amounts due and
payable upon such bonds and coupons, respectively (with interest on overdue
installments of interest, to the extent permitted by law, at the highest rate
of interest borne by any of the bonds outstanding under this Indenture), at the
date fixed by the Trustee for the distribution of such moneys, upon
presentation of the several bonds and coupons and upon stamping such payment
thereon, if partly paid, and upon surrender thereof, if fully paid.
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Upon filing a bill in equity or upon other commencement of judicial
proceedings to enforce any right under this Indenture, the Trustee shall be
entitled to exercise the right of entry, and also any and all rights and powers
herein conferred and provided to be exercised by the Trustee upon the
occurrence of any completed default; and as a matter of right, the Trustee
shall be entitled to the appointment of a receiver of the mortgaged and pledged
property, and of the earnings, revenues, rents, issues, profits and other
income thereof and therefrom, with all such powers as the court or courts
making such appointment shall confer; but notwithstanding the appointment of
any receiver the Trustee shall be entitled, as pledgee, to continue to retain
possession and control of any stocks, bonds, cash and indebtedness deposited
with the Trustee hereunder.
SECTION 10.15. All rights of action (including the right to file
proof of claim) under this Indenture or under any of the bonds or coupons, may
be enforced by the Trustee without the possession of any of the bonds or
coupons or the production thereof on any trial or other proceeding relative
thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee and any recovery of judgment shall be for the
equal benefit of the holders of the outstanding bonds and coupons, subject to
the provisions of SECTION 10.12 hereof.
SECTION 10.16. No holder of any bond or coupon shall have any right
to institute any suit, action or proceeding at law or in equity upon, or in
respect of this Indenture, or for the execution of any trust or power created
hereby, or for any other remedy hereunder, unless
(1) such holder shall previously have given to the Trustee
written notice of the occurrence of a default;
(2) the holders of not less than twenty-five per centum (25%)
in principal amount of the bonds then outstanding hereunder shall have
tendered to the Trustee reasonable indemnity against all costs,
expenses and liabilities which might be incurred in or by reason of
such action, suit or proceeding, and shall have requested the Trustee
in writing to take action in respect of such default;
(3) the Trustee shall have declined to take such action or
shall have failed so to do within sixty (60) days thereafter; and
(4) no directions inconsistent with such written request shall
have been given pursuant to Section 10.06 hereof;
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it being understood and intended that no one or more holders of the bonds or
coupons shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by his or their action or to enforce any
right hereunder except in the manner herein provided, and that all proceedings
at law or in equity shall be instituted, had and maintained in the manner
herein provided and for the equal benefit, subject to the provisions of
Sections 10.03 and 10.12 hereof, of all holders of outstanding bonds and
coupons. Notwithstanding the provisions of Section 10.17 hereof or any other
provision of this Indenture or any indenture supplemental hereto, nothing in
this Indenture or in any such supplemental indenture contained shall, however,
affect or impair the right of any bondholder, which is absolute and
unconditional, to enforce the payment of the principal of and interest on his
bonds at and after maturity thereof as therein expressed or the obligation of
the Company, which is also absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the bonds provided the principal of and
interest and premium, if any, on each of the bonds issued hereunder to the
respective holders thereof at the time and place in said bonds and the
appurtenant coupons expressed.
SECTION 10.17. Notwithstanding any other provision of this Indenture,
all the parties hereto agree, and each holder or owner of any bond by his
acceptance thereof after the date of the execution hereof 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 that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any bondholder or group of
bondholders, holding in the aggregate more than ten per centum (10%) in
principal amount of the bonds outstanding, or to any suit instituted by any
bondholder for the enforcement of the payment of the principal of or interest
on any bond, on or after the respective due date expressed in such bond.
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SECTION 10.18. The Company may waive any period of grace provided for
in this Article X.
SECTION 10.19. In case the Trustee shall have proceeded to enforce
any right under this Indenture by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored to their former positions and rights
hereunder with respect to the mortgaged and pledged property, and all rights,
remedies and powers of the Trustee shall continue as if no such proceedings had
been taken.
SECTION 10.20. The Trustee is hereby irrevocably appointed (and the
successive respective holders of bonds and coupons issued hereunder, by taking
and holding the same, shall be conclusively deemed to have so appointed the
Trustee) the true and lawful attorney-in-fact of the respective holders of the
bonds and coupons issued hereunder, with authority to make or file,
irrespective of whether the bonds or any of them are in default as to payment
of principal or interest, in the respective names of the holders of the bonds
or coupons or in behalf of all holders of the bonds or coupons as a class, any
proof of debt, amendment to proof of debt, petition or other similar document;
to receive payment of any sums becoming distributable on account thereof; and
to execute any other papers and documents and to do and perform any and all
acts and things for and in behalf of the respective holders of the bonds or
coupons as a class, as may be necessary or advisable, in the opinion of the
Trustee in order to have the respective claims of the holders of the bonds or
coupons against the Company or any other obligor allowed in any equity
receivership, insolvency, liquidation, bankruptcy or other proceedings relative
to the Company or any other obligor, their creditors, or their property, and to
receive payment of or on account of such claims; and any receiver, assignee or
trustee in bankruptcy is hereby authorized by each of the bondholders to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to the bondholders, to pay to the
Trustee any amount due it for proper compensation and expenses, including
counsel fees, incurred by it up to the date of such distribution, and for
liabilities so incurred without negligence or bad faith on the part of the
Trustee. Nothing herein contained shall be
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construed to authorize the Trustee to accept any composition or plan of
reorganization on behalf of the bondholders or to surrender any of the rights
of the bondholders.
SECTION 10.21. All powers and remedies given by this Article to the
Trustee or to the bondholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of the bonds, and no delay or omission
of the Trustee or of any holder of any of the bonds or coupons to exercise any
right or power accruing upon any default, shall impair any such right or power,
or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 10.16 hereof, every power
and remedy given by this Article to the Trustee or to the bondholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the bondholders. No waiver of any default hereunder, whether by
the Trustee or by the bondholders, shall extend to or shall affect any
subsequent default or shall impair any rights or remedies consequent thereon.
ARTICLE XI.
EVIDENCE OF BONDHOLDERS' ACTION AND OWNERSHIP OF BONDS.
SECTION 11.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the bonds
may take any action (including the making of any demand or request, the giving
of any notice or consent or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (i) by any instrument or any number of
instruments of similar tenor executed by bondholders in person or by attorney
appointed in writing, or (ii) by the record of the holders of bonds voting in
favor thereof at any meeting of bondholders duly called and held in accordance
with the provisions of Article XVI hereof, or (iii) by a combination of
such instrument or instruments and any such record of such a meeting of
bondholders.
Proof of the execution of any such instrument, or of a writing
appointing any such attorney, or of the holding by any person of any of the
bonds or coupons shall, subject to the provisions of Sections 14.02
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and 14.03 hereof, be sufficient for any purpose of this Indenture (except as
otherwise herein expressly provided) if made in the following manner:
(a) The fact and date of the execution by any person of any
instrument or writing may be proved by the certificate of any notary
public, or other officer authorized to take acknowledgments of deeds
to be recorded in the state in which he purports to act, that the
person signing such instrument or writing acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer;
(b) The amount of bonds transferable by delivery, and the
series and serial numbers thereof, held by such person, and the date
of his holding the same, may be proved by a certificate executed by
any trust company, bank, banker or other depositary wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such person had on deposit
with such depositary, the bonds described in such certificate. The
holding by the person named in any such certificate of any bond
specified therein shall be presumed to continue unless (1) another
certificate bearing a later date issued in respect of the same bond
shall be produced, or (2) the bond specified in such certificate (or
another coupon bond or bonds issued in exchange or substitution for
said bond) shall be produced, or (3) the bond specified in such
certificate shall then be registered as to principal or shall have
been surrendered in exchange for a registered bond without coupons.
The Trustee may nevertheless in its discretion require further proof
in cases where it deems further proof desirable. The ownership of
registered bonds without coupons shall be proved by the registry
books. The record of any bondholders' meeting shall be proved in the
manner provided in Section 16.06 hereof.
SECTION 11.02. The Company and the Trustee and any paying agent and
any bond registrar may deem and treat the bearer of any temporary or coupon
bond outstanding hereunder, which shall not at the time be registered as to
principal as hereinbefore authorized, and the bearer of any coupon for interest
on any such bond, whether such bond shall be registered or not, as the absolute
owner of such bond or coupon, as the case may be, whether or not such bond or
coupon shall be overdue, for
<PAGE> 181
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the purpose of receiving payment thereof or on account thereof and for all
other purposes, and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
The Company and the Trustee and any paying agent and any bond
registrar may deem and treat the person in whose name any registered bond
without coupons shall be registered upon the books of the Company as herein
authorized, as the absolute owner of such bond, whether or not such bond shall
be overdue, for the purpose of receiving payment of or on account of the
principal of and interest on such bond and for all other purposes, and they may
deem and treat the person in whose name any coupon bond shall be so registered
as to principal as the absolute owner of such bond, whether or not such bond
shall be overdue, for the purpose of receiving payment of or on account of the
principal thereof and for all other purposes, except to receive payment of
interest represented by outstanding coupons; and all such payments so made to
any such registered holder or upon his order, shall be valid and effectual to
satisfy and discharge the liability upon such bond to the extent of the sum or
sums so paid, and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
Neither the Company nor the Trustee shall be bound to recognize any
person as the holder of a bond outstanding under this Indenture unless and
until his bond is submitted for inspection, if required, except as may
otherwise be provided by regulations made under Section 16.05 hereof, and his
title thereto satisfactorily established, if disputed.
SECTION 11.03. In determining whether the holders of the requisite
aggregate principal amount of bonds have concurred in any direction, demand,
request, notice, consent or other action under this Indenture, bonds which are
owned by the Company or any other obligor on the bonds or by any affiliate
thereof shall be disregarded and deemed not to be outstanding for the purpose
of any such determination, provided that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction or consent only
bonds which the Trustee knows are so owned shall be so disregarded.
SECTION 11.04. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 11.01 hereof, of the taking of any
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action by the holders of the percentage in aggregate principal amount of the
bonds specified in this Indenture in connection with such action, any holder of
a bond the serial number of which is shown by the evidence to be included in the
bonds the holders of which have consented to such action may, by filing written
notice with the Trustee at its principal office and upon proof of holding as
provided in Section 11.01 hereof, revoke such action so far as concerns such
bond. Except as aforesaid any such action taken by the holder of any bond shall
be conclusive and binding upon such holder and upon all future holders of such
bond, irrespective of whether or not any notation of such consent is made upon
such bond, and in any event any action taken by the holders of the percentage in
aggregate principal amount of the bonds specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the bonds.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, SUBSCRIBERS TO THE CAPITAL STOCK,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture or in any indenture supplemental hereto,
or in any bond or coupon hereby secured, or because of the creation of any
indebtedness hereby secured, or for any claim based thereon, or otherwise in
respect thereof, shall be had against any incorporator or any past, present or
future subscriber to the capital stock, stockholder, officer or director, as
such, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation under any rule of law, statute
or constitution or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise; it being expressly agreed and understood
that this Indenture, any indenture supplemental hereto and the obligations
hereby and thereby secured, are solely corporate obligations, and that no
personal liability whatever shall attach to, or be incurred by, such
incorporators, subscribers to the capital stock, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any of
them, because of the incurring of the indebtedness hereby authorized, or under
or by reason of any of the obligations, covenants or agreements contained in
this Indenture
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or in any indenture supplemental hereto or in any of the bonds or coupons hereby
secured, or implied therefrom, or because thereof or otherwise in respect
thereof, and that any and all personal liability of every name and nature, and
any and all rights and claims against every such incorporator, subscriber to the
capital stock, stockholder, officer or director, as such, whether arising at
common law or in equity, or created by rule of law, statute, constitution or
otherwise, are expressly released and waived as a condition of, and as part of
the consideration for, the execution of this Indenture and the issue of the
bonds and interest obligations secured hereby.
ARTICLE XIII.
EFFECT OF MERGER, CONSOLIDATION, ETC.
SECTION 13.01 Nothing in this Indenture shall prevent any
consolidation of the Company with, or merger of the Company into, any
corporation having corporate authority to own and operate the properties to be
vested in it by any such consolidation or merger, or shall prevent any
conveyance, transfer or lease, subject to the lien of this Indenture, of all or
substantially all the mortgaged and pledged property as an entirety, or
substantially as an entirety, to any corporation lawfully entitled to acquire or
lease and operate the same; provided, however, and the Company covenants and
agrees, that such consolidation, merger, conveyance, transfer or lease shall be
upon such terms as fully to preserve and in no respect to impair the lien or
security of this Indenture, or any of the rights or powers of the Trustee or the
bondholders hereunder; and provided, further, that any such lease shall be made
expressly subject to immediate termination by the Company or by the Trustee at
any time during the continuance of a completed default hereunder, and also by
the purchaser of the property so leased at any sale thereof hereunder, whether
such sale be made under the power of sale hereby conferred or under judicial
proceedings; and provided further that, upon any such consolidation, merger,
conveyance or transfer, or upon any such lease the term of which extends beyond
the date of maturity of any of the bonds secured hereby, the due and punctual
payment of the principal and interest of all said bonds according to their tenor
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the Company shall by an
indenture supplemental hereto, in form satisfactory to the Trustee, executed and
delivered to the Trustee, be expressly assumed by the corporation formed by such
consolidation or into which such
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merger shall have been made, or acquiring all or substantially all the
mortgaged and pledged property as an entirety, as aforesaid, or by the lessee
under any such lease the term of which extends beyond the date of maturity of
any of the bonds secured hereby.
SECTION 13.02. In case the Company, as permitted by Section 13.01
hereof, shall be consolidated with or merged into any other corporation, or
shall convey or transfer, subject to the lien of this Indenture, all or
substantially all the mortgaged and pledged property as an entirety, or
substantially as an entirety, the successor corporation formed by such
consolidation, or into which the Company shall have been merged, or which shall
have received a conveyance or transfer as aforesaid--upon executing and causing
to be recorded an indenture supplemental hereto as provided in Section
13.01--shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein, and shall have and may exercise under
this Indenture the same powers and rights as the Company, and (without in
anywise limiting or impairing by the enumeration of the same the scope and
intent of the foregoing general powers and rights) such successor corporation
thereupon may cause to be executed, issued and delivered, either in its own
name or in the name of Central Louisiana Electric Company, Inc., as its name
shall then exist, in respect of property of the character defined in Section
1.03 hereof as property additions, such bonds as could or might have been
executed, issued and delivered by the Company had it acquired such property of
such character by purchase on the date of such consolidation, merger,
conveyance or transfer and had such consolidation, merger, conveyance or
transfer not occurred, and upon the order of such successor corporation in lieu
of the Company, and subject to all the terms, conditions and restrictions in
this Indenture prescribed, concerning the authentication and delivery of bonds,
the Trustee shall authenticate and deliver any bonds which shall have been
previously signed and delivered by the officers of the Company to the Trustee
for authentication, and such bonds as the successor corporation shall
thereafter, in accordance with the provisions of this Indenture, cause to be
executed and delivered to the Trustee for such purpose, and such successor
corporation shall also have and may exercise in respect of the property of such
character, and subject to all the terms, conditions and restrictions in this
Indenture prescribed applicable thereto, whether as to withdrawal of cash,
release of property or otherwise, the
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same powers and rights which the Company might or could exercise had it
acquired the property of such character by purchase on the date of such
consolidation, merger, conveyance or transfer and had such consolidation,
merger, conveyance or transfer not occurred. All the bonds so issued shall in
all respects have the same legal right and security as the bonds theretofore
issued in accordance with the terms of this Indenture as though all of said
bonds had been authenticated and delivered at the date of the execution hereof.
As a condition precedent to the execution by such successor corporation and the
authentication and delivery by the Trustee of any such additional bonds or the
withdrawal of cash or the release of property under any of the provisions of
this Indenture, on the basis of property of the character defined in Section
1.03 hereof as property additions, acquired, made or constructed by the
successor corporation, or by any corporation with which the Company or any
successor corporation may be so consolidated or into which the Company or any
successor corporation may be so merged or to which the Company or any successor
corporation may make any such conveyance, the indenture with the Trustee to be
executed and caused to be recorded by the successor corporation as in this
Section provided or one or more subsequently executed indentures, shall contain
a conveyance or transfer and mortgage in terms sufficient to subject such
property to the lien hereof; and provided further that the lien created thereby
and the lien thereon shall have similar force, effect and standing as the lien
of this Indenture would have if the Company should not be consolidated with or
merged into such other corporation or should not convey or transfer, subject to
this Indenture, all or substantially all of the mortgaged and pledged property
as an entirety as aforesaid, to such successor corporation, and should itself
on the date of such consolidation, merger, conveyance or transfer acquire or
construct such property, and request the authentication and delivery of bonds
or the withdrawal of cash or the release of property under the provisions of
this Indenture in respect thereof.
To the extent permitted by Sections 14.02 and 14.03 hereof the Trustee
may receive an opinion of counsel as conclusive evidence that any such
assumption and any such lien and any such indenture comply with the foregoing
conditions and provisions of this Section.
In case of any such consolidation or merger or conveyance or transfer
such changes in phraseology and form (but not in substance) may be
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made in the bonds thereafter to be issued hereunder, as may be appropriate.
SECTION 13.03. In case the Company, as permitted by Section 13.01
hereof, shall be consolidated with or merged into any other corporation, or
shall convey or transfer, subject to this Indenture, all or substantially all
the mortgaged and pledged property as an entirety, or substantially as an
entirety as aforesaid, neither this Indenture nor the supplemental indenture
with the Trustee to be executed and caused to be recorded by the successor
corporation as in Section 13.02 hereof provided, shall, unless such indenture
shall otherwise provide, become or be a lien upon any of the properties or
franchises of the successor corporation except (a) those acquired by it from the
Company and those appurtenant thereto and property which the successor
corporation shall thereafter acquire or construct which shall form an integral
part of, and be essential to the use or operation of, any property then or
thereafter subject to the lien hereof, (b) the property made and used by the
successor corporation as the basis under any of the provisions of this Indenture
for the authentication and delivery of additional bonds, or the withdrawal of
cash, or for a credit under any requirement hereof, or the release of property,
and (c) such franchises, repairs and additional property as may be acquired,
made or constructed by the successor corporation (i) to maintain, renew and
preserve the franchises covered by this Indenture and to maintain the property
mortgaged and intended to be mortgaged hereunder as an operating system or
systems in good repair, working order and condition, or (ii) in pursuance of
some covenant or condition hereof to be performed or observed by the Company.
ARTICLE XIV.
CONCERNING THE TRUSTEE.
SECTION 14.01. The Trustee shall at all times be a bank or trust
company organized and doing business under the laws of the United States or of
any State, with a combined capital and surplus of at least Two Million Dollars
($2,000,000) and authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by Federal or State authority. If the
Trustee publishes reports of condition at least annually, pursuant to law or to
the requirements of any supervising or examining authority referred to in this
Section, then for the
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purposes of this Section the combined capital and surplus of the Trustee shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Company covenants that whenever necessary to avoid or fill a
vacancy in the office of Trustee, it will, in the manner provided in Section
14.18 hereof, appoint a Trustee so that there shall at all times be a Trustee
eligible under this Section.
SECTION 14.02. The Trustee hereby accepts the trust hereby created.
The Trustee undertakes, prior to a completed default, and after the curing of
all completed defaults which may have occurred, to perform such duties and only
such duties as are specifically set forth in this Indenture, and in case of a
completed default (which has not been cured) to exercise such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
The Trustee, upon receipt of evidence furnished to it by or on
behalf of the Company pursuant to any provision of this Indenture, will examine
the same to determine whether or not such evidence conforms to the requirements
of this Indenture.
SECTION 14.03. 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 own wilful misconduct, except that
(a) prior to a completed default hereunder and after the
curing of all completed defaults which may have occurred, the Trustee
shall not be liable except for the performance of such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee but
the duties and obligations of the Trustee prior to a completed default
and after the curing of all completed defaults which may have
occurred, shall be determined solely by the express provisions of this
Indenture; and
(b) prior to a completed default hereunder and after the
curing of all completed defaults which may have occurred, and in the
absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely as to the truth of the statements and the
correctness of opinions
<PAGE> 188
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expressed therein, upon certificates or opinions conforming to the
requirements of this Indenture; and
(c) the Trustee shall not be personally liable for any error
of judgment made in good faith by a responsible officer or officers of
the Trustee, unless it shall be proved that such Trustee was negligent
in ascertaining the pertinent facts; and
(d) the Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the bonds at the time outstanding
(determined as provided in Section 1.02 hereof) relating to the time,
method, and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred
upon the Trustee, under this Indenture.
SECTION 14.04. The recitals of fact contained herein and in the bonds
(other than the Trustee's certificate of authentication) shall be taken as the
statements of the Company and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the value
of the mortgaged and pledged property or any part thereof, or as to the title
of the Company thereto, or as to the validity or adequacy of the security
afforded thereby and hereby, or as to the validity of this Indenture or of the
bonds or coupons issued hereunder.
SECTION 14.05. Subject to the provisions of Sections 14.02 and 14.03
hereof, the Trustee shall not be personally liable in case of entry by it upon
the mortgaged and pledged property for debts contracted or liability or damages
incurred in the management or operation of said property.
SECTION 14.06. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee on the
Company shall be deemed to have been sufficiently given or served, for all
purposes, by being deposited postage prepaid in a postoffice or a postoffice
letter box addressed (until another address is filed by the Company with the
Trustee for the purposes of this Section), as follows: Central Louisiana
Electric Company, Inc., 528 Monroe Street, Alexandria, Louisiana.
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SECTION 14.07. To the extent permitted by Sections 14.02 and 14.03
hereof:
(1) The Trustee may rely and shall be protected in acting upon
any resolution, certificate, opinion, notice, request, consent, order,
appraisal, report, bond, or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) The Trustee may consult with counsel (who may be an
officer or employee of, or counsel to the Company) and the opinion of
such counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel;
(3) The Trustee shall be under no obligation to exercise any
of the trusts or powers hereof at the request, order or direction of
any of the bondholders, pursuant to the provisions of this Indenture,
unless such bondholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby; and
(4) The Trustee shall not be liable for any action taken by it
or failure to act in good faith and believed by it to have been
authorized or within the discretion or powers conferred upon it by
this Indenture.
SECTION 14.08. The Trustee shall not be under any responsibility for
the selection, appointment or approval of any expert for any of the purposes
expressed in this Indenture, except that nothing in this Section contained
shall relieve the Trustee of its obligation to exercise reasonable care with
respect to the selection, appointment or approval of independent experts who
may furnish opinions or certificates to the Trustee pursuant to any provision
of this Indenture.
Any resolution of the Board of Directors or Executive Committee shall
be evidenced to the Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted, and the Trustee
may accept such copy as conclusive evidence of the adoption of such resolution.
Nothing contained in this Section shall be deemed to modify the
obligation of the Trustee to exercise after a completed default (which has not
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been cured) the rights and powers vested in it by this Indenture with the
degree of care and skill specified in Section 14.02 hereof.
SECTION 14.09. The Trustee in its individual or any other capacity,
may become the owner or pledgee of bonds or coupons secured hereby with the
same rights it would have if not Trustee.
SECTION 14.10. Subject to the provisions of Section 15.04 hereof, all
moneys received by the Trustee whether as Trustee or paying agent shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other trust funds except to
the extent required by law. The Trustee may allow and credit to the Company
interest on any moneys received by it hereunder at such rate, if any, as may be
agreed upon with the Company from time to time and as may be permitted by law.
SECTION 14.11. The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust, and the Company will reimburse the Trustee with interest, at the rate of
six per centum (6%) per annum until paid, for all advances made by the Trustee,
in accordance with any of the provisions of this Indenture and will pay to the
Trustee from time to time its expenses and disbursements (including the
reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ). The Company also covenants to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending against any claim of
liability in the premises. The obligations of the Company to the Trustee under
this Section shall constitute additional indebtedness secured hereby, provided
that the aggregate amount of such obligations shall not exceed ten per centum
(10%) of the greatest principal amount of bonds at any one time outstanding
under this Indenture. Such additional indebtedness shall
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be secured by a lien prior to that of the bonds upon the mortgaged and pledged
property, including all property or funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders of particular
bonds or coupons.
None of the provisions contained in this Indenture shall require the
Trustee to advance or expend or risk its own funds, or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for belief that
the repayment of such advances or expenditures or liability is not reasonably
assured to it by the security afforded to it by the terms of this Indenture.
SECTION 14.12. Whenever in the administration of the trusts of this
Indenture, prior to a completed default hereunder, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the President or
a Vice-President and the Treasurer or an Assistant Treasurer or the Comptroller
or an Assistant Comptroller of the Company and delivered to the Trustee, and
such certificate shall be full warrant to the Trustee for any action taken or
suffered by it under the provisions of this Indenture upon the faith thereof.
SECTION 14.13. Whenever it is provided in this Indenture that the
Trustee shall take any action upon the happening of a specified event or upon
the fulfillment of any condition or upon the request of the Company or of
bondholders, the Trustee taking such action shall have full power to give any
and all notices and to do any and all acts and things incidental to such
action.
SECTION 14.14. (A) If the Trustee has or acquires any conflicting
interest, as defined by subsection (D) of this Section, such Trustee shall
within ninety days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign by giving written notice
to the Company, but such resignation shall not become effective until the
appointment of a successor trustee and such successor's acceptance of such
appointment. The Company covenants to take prompt steps
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to have a successor appointed in the manner hereinafter provided in Section
14.18 hereof. Upon giving such notice of resignation, the resigning Trustee
shall publish notice thereof in one daily newspaper of general circulation in
the City of New Orleans, Louisiana, once in each of three successive calendar
weeks, in each case on any business day of the week, which need not be the same
day in each week. If the resigning Trustee fails to publish such notice within
ten days after giving written notice of resignation to the Company, the Company
shall publish such notice.
(B) In the event that the Trustee shall fail to comply with the
provisions of the preceding subsection (A) of this Section, the Trustee shall
within ten days after the expiration of such ninety day period transmit notice
of such failure to the bondholders, in the manner and to the extent provided in
subsection (C) of Section 7.04 hereof with respect to reports pursuant to
subsection (A) of Section 7.04 hereof.
(C) Subject to the provisions of Section 10.17 hereof any bondholder
who has been a bona fide holder of a bond or bonds for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor if the Trustee fails, after written request therefor by such holder,
to comply with the provisions of subsection (A) of this Section.
(D) The Trustee shall be deemed to have a conflicting interest if--
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Company are outstanding unless such other
indenture is a collateral trust indenture under which the only
collateral consists of bonds issued under this Indenture; provided
that there shall be excluded from the operation of this paragraph any
indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Company are
outstanding if the Company shall have sustained the burden of proving,
on application to the Securities and Exchange Commission and after
opportunity for hearing thereon, that the trusteeship under this
Indenture and such other indenture is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for
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the protection of investors to disqualify the Trustee from acting as
such under one of such indentures;
(2) the Trustee or any of its directors or executive officers
is an obligor upon the bonds or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company, or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (i) one individual may be a director and/or an executive
officer of the Trustee and a director and/or an executive officer of the
Company, but may not be at the same time an executive officer of both
the Trustee and the Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of the Trustee
and a director of the Company; and (iii) the Trustee may be designated
by the Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary or in any other similar capacity or,
subject to the provisions of paragraph (1) of this subsection (D), to
act as trustee whether under an indenture or otherwise;
(5) ten per centum (10%) or more of the voting securities of
the Trustee is beneficially owned either by the Company or by any
director, partner or executive officer thereof, or twenty per centum
(20%) or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or ten per centum
(10%) or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director,
partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, (i) five per
centum (5%) or more of the voting securities or ten per centum (10%) or
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more of any other class of security of the Company, not including the
bonds issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (ii) ten per
centum (10%) or more of any class of security of an underwriter for the
Company.
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, five per
centum (5%) or more of the voting securities of any person who, to the
knowledge of the Trustee, owns ten per centum (10%) or more of the
voting securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of or holds as
collateral security for an obligation which is in default, ten per
centum (10%) or more of any class of security of any person who, to the
knowledge of the Trustee, owns fifty per centum (50%) or more of the
voting securities of the Company; or
(9) the Trustee owns on May 15th in any calendar year in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of twenty-five per centum (25%) or more of the
voting securities or of any class of security, of any person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (6), (7), or (8) of
this subsection (D). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions of
the preceding sentence shall not apply for a period of two years from
the date of such acquisition, to the extent that such securities
included in such estate do not exceed twenty-five per centum (25%) of
such voting securities or twenty-five per centum (25%) of any such class
of security. Promptly after May 15th in each calendar year, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of May 15th. If the Company fails to make
payment in full of principal or interest upon the bonds when and as the
same become due and payable, and such failure continues for thirty days
thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned
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capacities as of the date of the expiration of such thirty-day period
and after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long
as such failure shall continue, be considered as though beneficially
owned by the Trustee for the purposes of paragraphs (6), (7), and (8) of
this subsection (D).
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (D) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (D).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (D) only, (a) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms or any certificate of interest or participation in
any such note or evidence of indebtedness; (b) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
thirty days or more and shall not have been cured; and (c) the Trustee shall not
be deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as above defined, or (ii) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder, or (iii)
any security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
For the purposes of this subsection (D) only, the term "voting
security" shall mean any security presently entitling the owner or holder
thereof to vote in the direction or management of the affairs of a person, or
any security issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or management
of the affairs of a person.
For the purposes of this subsection (D) only, the term "director"
shall mean any director of a corporation or any individual performing
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similar functions with respect to any organization whether incorporated or
unincorporated.
For the purposes of this subsection (D) only, the term "executive
officer" shall mean the President, every Vice-President, every Trust Officer,
the Cashier, the Secretary and the Treasurer of a corporation, and any
individual customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not include the
Chairman of the Board of Directors.
For the purposes of this subsection (D) only, the term "underwriter"
when used with reference to the Company shall mean every person who, within
three years prior to the time as of which the determination is made, has
purchased from the Company with a view to, or has sold for the Company in
connection with, the distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a participation in the
direct or indirect underwriting of any such undertaking, but such term shall
not include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary distributors' or
sellers' commission.
For the purposes of this subsection (D) only, the term "Company" shall
include any obligor on bonds secured hereby.
(E) The percentages of voting securities and other securities
specified in subsection (D) of this Section shall be calculated in accordance
with the following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this subsection E))
means such amount of the outstanding voting securities of such person
as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
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(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(a) Securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(b) Securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(c) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise;
(d) Securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes, and
provided, further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
(F) The provisions of this Section which have been made specifically
applicable to the Trustee, shall apply to the Trustee, and if an individual
trustee or a separate or co-trustee is appointed pursuant to Section 14.19
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hereof, to any individual trustee or separate or co-trustee, except that in
case of the resignation of an individual trustee or a separate or co-trustee
such resignation and the appointment of a successor shall be governed by the
provisions of paragraph (3) of Section 14.19 hereof.
Section 14.15. (A) Subject to the provisions of subsection (B) of
this Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within four months prior to a
default (as defined in the last paragraph of this subsection), or subsequent to
such a default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the bonds, and the holders of other indenture
securities (as defined in the last paragraph of this subsection)
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest effected after the beginning of such four months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise after the beginning
of such four months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
trustee
(a) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities, or other property in respect of claims filed against
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the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Act or applicable State law;
(b) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such four months' period;
(c) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in the last paragraph of this
subsection would occur within four months; or
(d) to receive payment on any claim referred to in paragraph
(b) or (c), against the release of any property held as security for
such claim as provided in paragraph (b) or (c), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (b), (c), and (d), property substituted after
the beginning of such four months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the bondholders, and the holders of other indenture
securities in such manner that the Trustee, the bondholders, and the holders of
other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of
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the funds and property in such special account and before crediting to the
respect claims of the Trustee, the bondholders, and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or in proceedings for reorganization pursuant to
the Bankruptcy Act or applicable State law, whether such distribution is made
in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, the
bondholders, and the holders of other indenture securities, in accordance with
the provisions of this paragraph, the funds and property held in such special
account and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the Trustee, the
bondholders, and the holders of other indenture securities, with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any trustee who has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist--
1. the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such trustee had
continued as trustee, occurred after the beginning of such four
months' period; and
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2. such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
As used in this Section, the term "default" shall mean any failure to
make payment in full of the principal of or interest upon the bonds or upon the
other indenture securities when and as such principal or interest becomes due
and payable; and the term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar to the provisions
of this subsection, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(B) There shall be excluded from the operation of subsection (A) of
this Section a creditor relationship arising from--
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee; and for the
purposes of this paragraph the term "security" shall mean any note,
stock, treasury stock, bond, debenture, evidence of indebtedness,
certificate of interest or participation in any profit-sharing
agreement, collateral-trust certificate, pre-organization
certificate, or subscription, transferable share, investment contract,
voting trust certificate, certificate of deposit for a security, or,
in general, any interest or instrument commonly known as a "security"
or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guaranty of, or warrant or right
to subscribe to or purchase, any of the foregoing;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving the property subject to the lien of this Indenture or of
discharging tax liens or other liens or encumbrances, prior to the
lien of this Indenture, on the mortgaged and pledged property, if
notice of such advance and of the circumstances surrounding the making
thereof is given to the bondholders as provided in subsections (A),
(B) and (C) of Section 7.04 hereof with respect to advances by the
Trustee as such;
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(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in the last paragraph
of this subsection;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in the
last paragraph of this subsection.
As used in this Section, the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand; the term
"self-liquidating paper" shall mean any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacture, shipment, storage
or sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company, arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation; the term "Trustee" shall include the Trustee and any individual or
separate or co-trustee appointed pursuant to Section 14.19 hereof; and the
term "Company" shall include any obligor on bonds secured hereby.
Section 14.16. The Trustee may at any time resign and be discharged of
the trusts hereby created by giving written notice to the
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Company specifying the day upon which such resignation shall take effect and
thereafter publishing notice thereof, in one daily newspaper of general
circulation in the City of New Orleans, Louisiana, once in each of three
successive calendar weeks, in each case on any business day of the week, which
need not be the same day in each week, and such resignation shall take effect
upon the day specified in such notice unless previously a successor trustee
shall have been appointed by the bondholders or the Company in the manner
hereinafter provided in Section 14.18 hereof, and in such event such
resignation shall take effect immediately on the appointment of such successor
trustee. This Section shall not be applicable to resignations pursuant to
Section 14.14 hereof.
Section 14.17. The Trustee, may be removed at any time by holders of a
majority in principal amount of the bonds then outstanding (determined as
provided in Section 1.02 hereof) or by their attorneys in fact duly authorized,
evidenced as provided in Article XI hereof, notification thereof being given to
the Company and to the Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 14.01 hereof, then the Trustee shall
resign immediately in the manner and with the effect specified in Section 14.16
hereof, and, in the event that the Trustee does not resign immediately in such
case, then it may be removed forthwith (i) by the Company evidenced by an
instrument signed in the name of the Company by the President or a
Vice-President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer and filed with the Trustee or (ii) by the holders of a
majority in principal amount of the bonds then outstanding (determined as
provided in Section 1.02 hereof) or by their attorneys in fact duly authorized,
evidenced as provided in Article XI hereof, notification thereof being given to
the Company and to the Trustee.
Section 14.18. In case at any time the Trustee shall resign or shall
be removed (unless the Trustee shall be removed as provided in subsection (C)
of Section 14.14 hereof in which event the vacancy shall be filled as provided
in said subsection) or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall
be appointed, or if any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, a vacancy shall
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be deemed to exist in the office of Trustee, and a successor or successors may
be appointed by the holders of a majority in principal amount of the bonds then
outstanding (determined as provided in Section 1.02 hereof), or by their
attorneys in fact duly authorized, evidenced as provided in Article XI hereof,
notification thereof being given to the Company and the retiring trustee as
well as the new trustee; provided, nevertheless, that until a new trustee shall
be appointed by the bondholders as aforesaid, the Company, by instrument
executed by order of its Board of Directors or Executive Committee and duly
signed by its President or a Vice-President and its Secretary or an Assistant
Secretary or its Treasurer or an Assistant Treasurer, may appoint a trustee
to fill such vacancy. The Company shall publish notice of any such appointment
made by it in the manner provided in Section 14.16 hereof.
If in a proper case no appointment of a successor trustee shall be
made pursuant to the foregoing provisions of this Section within six months
after a vacancy shall have occurred in the office of trustee, the holder of any
bond outstanding hereunder or any retiring trustee may apply to any court of
competent jurisdiction to appoint a successor trustee. Said court may thereupon
after such notice, if any, as such court may deem proper and prescribe, appoint
a successor trustee.
If the Trustee resigns because of a conflict of interest as provided
in subsection (A) of Section 14.14 hereof and a successor has not been
appointed by the Company or the bondholders, or, if appointed, has not accepted
the appointment within thirty days after the date of such resignation, the
resigning Trustee may apply to any court of competent jurisdiction for the
appointment of a successor trustee.
Any trustee appointed under the provisions of this Section in
succession to the Trustee shall be a bank or trust company eligible under
Section 14.01 hereof and qualified under Section 14.14 hereof.
Any trustee which has resigned or been removed shall nevertheless
retain a lien upon the mortgaged and pledged property, including all property
or funds held or collected by the trustee as such, except funds held in trust
for the benefit of particular bonds or coupons to secure the amounts due to the
trustee as compensation, reimbursement, expenses and indemnity, afforded to it
by Section 14.11 hereof.
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Section 14.19. At any time or times, for the purpose of conforming to
any legal requirements, restrictions or conditions in any State or jurisdiction
in which any part of the mortgaged and pledged property then subject or to
become subject to this Indenture may be located, the Company and the Trustee
shall have power to appoint, and, upon the request of the Trustee the Company
shall for such purpose join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint
another corporation or one or more persons approved by the Trustee either to
act as an individual trustee or trustees, or separate trustee or trustees, or
co-trustee or co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof. In the event that the Company shall not
have joined in such appointment within fifteen days after the receipt by it of
a request so to do, the Trustee alone shall have power to make such
appointment.
Every individual trustee, every separate trustee and every co-trustee
shall, to the extent permitted by law, but to such extent only, be appointed
subject to the following provisions and conditions, namely:
(1) The rights, powers, duties and obligations conferred or
imposed upon trustees hereunder or any of them shall be conferred or
imposed upon and exercised or performed by the Trustee, or the Trustee
and such individual trustee or individual trustees or separate trustee
or separate trustees or co-trustee or co-trustees jointly, as shall be
provided in the supplemental indenture appointing such individual
trustee or individual trustees or separate trustee or separate
trustees or co-trustee or co-trustees, except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations shall be exercised and performed by such individual
trustee or individual trustees or separate trustee or separate
trustees or co-trustee or co-trustees;
(2) The bonds secured hereby shall be authenticated and
delivered, and all powers, duties, obligations and rights, conferred
upon the Trustee in respect of the custody of all bonds and other
securities and of all cash pledged or deposited hereunder, shall be
exercised solely by The National Bank of Commerce in New Orleans or
its successor in the trust hereunder;
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(3) The Company and the Trustee, at any time by an instrument
in writing executed by them jointly, may accept the resignation of or
remove any individual trustee or separate trustee or co-trustee
appointed under this Section or otherwise, and, upon the request of
the Trustee, the Company shall, for such purpose, join with the
Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to make effective such resignation
or removal. In the event that the Company shall not have joined in
such action within fifteen days after the receipt by it of a request
so to do, the Trustee alone shall have power to accept such
resignation or to remove any individual trustee or separate trustee or
co-trustee. A successor to an individual trustee or a separate trustee
or co-trustee so resigned or removed may be appointed in the manner
provided in this Section.
No trustee hereunder shall be personally liable by reason of any act
or omission of any other trustee hereunder.
The provisions of Sections 14.02 and 14.03 which have been made
specifically applicable to the Trustee shall also apply to all individual
trustees, separate trustees, and co-trustees appointed pursuant to this Section
14.19.
Any notice, request or other writing, by or on behalf of the holders
of the bonds delivered to The National Bank of Commerce in New Orleans, or its
successor in the trust hereunder, shall be deemed to have been delivered to all
of the then individual trustees or separate trustees or co-trustees as
effectually as if delivered to each of them. Every instrument appointing any
trustee or trustees other than a successor to The National Bank of Commerce in
New Orleans shall refer to this Indenture and the conditions in this Article
expressed, and upon the acceptance in writing by such individual trustee or
trustees or separate trustee or trustees or co-trustee or co-trustees, he, they
or it shall be vested with the estates or property, specified in such
instrument, either jointly with The National Bank of Commerce in New Orleans or
its successor, or separately, as may be provided therein, subject to all the
trusts, conditions and provisions of this Indenture; and every such instrument
shall be filed with The National Bank of Commerce in New Orleans or its
successor in the trust here-
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195
under. Any individual trustee or trustees, or separate trustee or trustees, or
any co-trustee or co-trustees may at any time by an instrument in writing
constitute The National Bank of Commerce in New Orleans or its successor in the
trust hereunder his, their or its agent or attorney in fact, with full power and
authority, to the extent which may be permitted by law, to do any and all acts
and things and exercise all discretion authorized or permitted by him, them or
it, for and in behalf of him, them or it, and in his, their or its name. In case
any individual trustee or trustees or separate trustee or trustees or co-trustee
or co-trustees, or a successor to any of them, shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of said individual trustee or separate trustee or
co-trustee, so far as permitted by law, shall be vested in and be exercised by
The National Bank of Commerce in New Orleans or its successor in the trust
hereunder, without the appointment of a new trustee as successor to such
individual trustee or separate trustee or co-trustee.
SECTION 14.20. Any successor trustee appointed hereunder shall
execute, acknowledge and deliver to his or its predecessor trustee, and also to
the Company, an instrument accepting such appointment hereunder, and thereupon
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the estates, properties, rights, powers, trusts,
duties and obligations of his or its predecessor in trust hereunder, with like
effect as if originally named as trustee herein; but the trustee ceasing to act
shall nevertheless, on the written request of the Company, or of the successor
trustee, or of the holders of ten per centum (10%) in principal amount of the
bonds then outstanding hereunder, execute, acknowledge and deliver such
instruments of conveyance and further assurance and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in
such successor trustee all the right, title and interest of the trustee to
which he or it succeeds, in and to the mortgaged and pledged property and such
rights, powers, trusts, duties and obligations, and the trustee ceasing to act
shall also, upon like request, pay over, assign and deliver to the successor
trustee any money or other property subject to the lien of this Indenture,
including any pledged securities, which may then be
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196
in his or its possession. Should any deed, conveyance or instrument in writing
from the Company be required by the new trustee for more fully and certainly
vesting in and confirming to such new trustee such estates, properties, rights,
powers, trusts and duties, any and all such deeds, conveyances and instruments
in writing shall, on request, be executed, acknowledged and delivered by the
Company.
SECTION 14.21. Any corporation into which the Trustee may be merged
or with which it may be consolidated or any corporation resulting from any
merger or consolidation to which the Trustee shall be a party or any
corporation to which substantially all the business and assets of the Trustee
may be transferred, provided such corporation shall be eligible under the
provisions of Section 14.01 hereof and qualified under Section 14.14 hereof
shall be the successor trustee under this Indenture, without the execution or
filing of any paper or the performance of any further act on the part of any
other parties hereto, anything herein to the contrary notwithstanding. In case
any of the bonds contemplated to be issued hereunder shall have been
authenticated but not delivered, any such successor to the Trustee may, subject
to the same terms and conditions as though such successor had itself
authenticated such bonds, adopt the certificate of authentication of the
original Trustee or of any successor to it as trustee hereunder, and deliver
the said bonds so authenticated; and in case any of said bonds shall not have
been authenticated, any successor to the Trustee may authenticate such bonds
either in the name of any predecessor trustee hereunder or in the name of the
successor trustee and in all such cases such certificates shall have the full
force which it is anywhere in said bonds or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
authenticate bonds in the name of the Trustee shall apply only to its successor
or successors by merger or consolidation or sale as aforesaid.
SECTION 14.22. In order further to assure the Trustee that it will be
compensated, reimbursed and indemnified as provided in Section 14.11 hereof
and that the prior lien provided for in Section 14.11 hereof upon the
mortgaged and pledged property to secure the payment of such compensation,
reimbursement and indemnity will be enforced for the benefit of the Trustee,
all parties to this Indenture agree, and each holder or owner of any bond by
his acceptance thereof shall be deemed to have agreed that in the event of
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(1) the adjudication of the Company as a bankrupt by any court
of competent jurisdiction,
(2) the filing of any petition seeking the reorganization of
the Company, readjustment or other similar relief under the Federal
Bankruptcy Laws or any other applicable law or statute of the United
States of America or of any State thereof,
(3) the appointment of one or more trustees or receivers of
all or substantially all of the property of the Company,
(4) the filing of any bill to foreclose this Indenture,
(5) the filing by the Company of a petition to take advantage
of any insolvency act, or
(6) the institution of any other proceeding wherein it shall
become necessary or desirable to file or present claims against the
Company,
the Trustee may file from time to time in any such proceeding or proceedings
one or more claims, supplemental claims and amended claims as a secured
creditor for its reasonable compensation for all services rendered by it
(including services rendered during the course of any such proceeding or
proceedings) and for reimbursement for all advances, expenses and disbursements
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ) made or incurred by
it in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties herein of the Trustee, and for any
and all amounts to which the Trustee is entitled as indemnity as provided in
Section 14.11 hereof; and the Trustee and its counsel and agents may file in
any such proceeding or proceedings applications or petitions for compensation
for such services rendered, for reimbursement for such advances, expenses and
disbursements, and for such indemnity. The claim or claims of the Trustee filed
in any such proceeding or proceedings shall be reduced by the amount of
compensation for services, reimbursements for advances, expenses and
adjustments, and indemnity paid to it following final allowance to it and to
its counsel and agents by the court in any such proceeding as an expense of
administration or in connection with a plan of reorganization or readjustment.
To the extent that compensation,reim-
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bursement and indemnity are denied to the Trustee or to its counsel or
other agents because of not being rendered or incurred in connection with the
administration of an estate in a proceeding or in connection with a plan of
reorganization or readjustment or other similar relief approved as required by
law, because such services were not rendered in the interests of and with
benefit to the estate of the Company as a whole but in the interests of and
with benefit to the holders of the bonds, in the execution of the trusts hereby
created or in the exercise and performance of any of the powers and duties
hereunder of the Trustee or because of any other reason, the court may, to the
extent permitted by law, allow such claim, as supplemented and amended, in any
such proceeding or proceedings and, for the purpose of any plan of
reorganization or readjustment or other similar relief of the Company's
obligations, may classify the Trustee as a secured creditor of a class separate
and distinct from that of other creditors and of a class having priority and
precedence over the class in which the holders of bonds are placed by reason of
having a lien, prior and superior to that of the holders of the bonds, upon the
mortgaged and pledged property, including all property or funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
particular bonds or coupons. The amount of the claim or claims of the Trustee
for services rendered and for advances and the expenses and disbursements,
including the reasonable compensation and the expenses and disbursements of its
counsel and of all persons not regularly in its employ, which are not allowed
and paid in any such proceedings but for which the Trustee is entitled to the
allowance of a secured claim as herein provided, may be fixed by the court or
judge in any such proceeding or proceedings to the extent that such court or
judge has or exercises jurisdiction over the amount of any such claim or claims.
If, and to the extent that, the Trustee and its counsel and other
persons not regularly in its employ do not receive compensation for services
rendered, reimbursement of its advances, expenses and disbursements, or
indemnity as herein provided, as the result of allowances made in any such
proceeding or by any plan of reorganization or readjustment or other similar
relief of obligations of the Company, the Trustee shall be entitled, in priority
to the holders of the bonds, to receive any distributions of any securities,
dividends or other disbursements which would otherwise be made to the holders of
bonds in any such proceeding or proceedings and the Trustee is hereby
constituted and appointed, irrevocably, the attorney-in-fact
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for the holders of the bonds and each of them to collect and receive, in their
name, place and stead, such distributions, dividends or other disbursements, to
deduct therefrom the amounts due to the Trustee, its counsel and other persons
not regularly in its employ on account of services rendered, advances, expenses
and disbursements made or in-cuffed, or indemnity, and to pay and distribute
the balance, pro rata, in accordance with the provisions of this Indenture, to
the holders of the bonds and coupons. The Trustee shall have a lien upon any
securities or other considerations to which the holders of bonds may become
entitled pursuant to any such plan of reorganization or readjustment or other
similar relief of obligations, or in any such proceeding or proceedings; and
the court or judge in any such proceeding or proceedings may determine the
terms and conditions under which any such lien shall exist and be enforced.
ARTICLE XV.
DEFEASANCE
SECTION 15.01. The Trustee may, and upon request of the Company
shall, cancel and discharge the lien hereof and of all indentures supplemental
hereto and execute and deliver to the Company such deeds and instruments as
shall be requisite to satisfy the lien hereof and of all indentures
supplemental hereto, and reconvey and transfer to the Company the mortgaged and
pledged property, whenever all indebtedness secured hereby shall have been
paid, including all proper charges of the Trustee hereunder, and thereupon
these presents and the estate and rights hereby granted and conveyed shall
cease, determine and be void; provided, however, that the Company shall deliver
to the Trustee an officers' certificate and an opinion of counsel in accordance
with the provisions of Section 3.01 hereof.
Bonds and interest obligations for the payment of which, and bonds for
the redemption of which, moneys in the necessary amount shall have been set
apart by or deposited with the Trustee, with irrevocable direction so to apply
the same (subject to the provisions of Section 15.04 hereof) shall for the
purposes of this Article be deemed to have been paid; provided that in case of
redemption the notice requisite to the validity of such redemption shall have
been given or arrangements shall have been made insuring to the satisfaction of
the Trustee that the same will be given; and provided further that the
foregoing provision in this paragraph shall
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not apply as of any particular time prior to ten days before the redemption
date or maturity date of any such bonds unless at such time the moneys for the
payment or redemption thereof are made immediately available for such purpose
to the holders or registered owners of the bonds upon presentation or surrender
thereof without awaiting the payment or redemption date thereof and unless
notice to such effect shall have been given by the Company by publication in a
daily newspaper of general circulation, in the City of New Orleans, Louisiana,
or such notice shall have been provided for to the satisfaction of the Trustee.
If on or prior to the maturity of the bonds of any series the Company
shall deposit with the Trustee as trust funds, or shall leave with it if
previously so deposited, moneys sufficient to pay all of the bonds of such
series, including principal and interest due or to become due to such date of
maturity, then such bonds shall no longer be entitled to any lien or benefit
under this Indenture.
SECTION 15.02. All moneys deposited with the Trustee pursuant to
Section 15.01 hereof shall be held in trust and applied by it to the payment,
either directly or through any paying agent, to the holders of the particular
bonds and coupons, for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest and premium, if any.
SECTION 15.03. Upon the satisfaction and discharge of this Indenture
all moneys then held by any paying agent under the provision of this Indenture
shall, upon demand of the Company, be repaid to it and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 15.04. In case within six (6) years after the maturity or
redemption date of any bond issued hereunder or coupon or interest claim
appurtenant thereto any amount deposited or left with the Trustee with respect
to such bond or coupon or interest claim shall not have been claimed by the
holder thereof entitled thereto, the Trustee shall, upon demand, pay over to
the Company, such amount not so claimed; and the Trustee shall thereupon be
relieved from all responsibility for such amount to the holder and owner of
such bond and coupon and interest claim, and in the event of such payment to
the Company the holder of any such bond or coupon or
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interest claim shall be deemed to be an unsecured creditor of the Company for
an amount equivalent to the amount so paid over to the Company with respect to
such bond or coupon or interest claim, without interest; provided, however,
that before being required to make any such payment to the Company, the Trustee
shall, at the expense of the Company, cause to be published once during each of
two successive calendar weeks, upon any business day of each such calendar
week, in a daily newspaper of general circulation in the City of New Orleans,
Louisiana, notice that said moneys remain unclaimed and that after the date
named in said notice, which date shall not be less than fifteen (15) days after
the date of the first publication of such notice, the balance of such moneys
then unclaimed will be returned to the Company.
ARTICLE XVI.
MEETINGS OF BONDHOLDERS.
SECTION 16.01. A meeting of bondholders may be called at any time and
from time to time pursuant to the provisions of this Article XVI for any of the
following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by bondholders pursuant to any of the
provisions of Article X hereof;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article XIV hereof;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 17.02
hereof; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the bonds under any other provision of this Indenture or under
applicable law.
SECTION 16.02. The Trustee may at any time call a meeting of
bondholders to take any action specified in Section 16.01 hereof, to be held
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at such time and at such place in the City of New Orleans, Louisiana, as the
Trustee shall determine. Notice of every meeting of bondholders, setting forth
the time and the place of such meeting and the action proposed to be taken at
such meeting and specifying each series of bonds which would be affected by the
proposed action, shall be published at least four times in one daily newspaper
of general circulation, in the City of New Orleans, Louisiana, the first
publication in any such newspaper to be not less than twenty nor more than one
hundred and eighty days prior to the date fixed for the meeting and shall be
mailed not less than thirty days before such meeting (i) to each registered
holder of bonds, which would be affected by the action proposed to be taken at
the meeting, then outstanding hereunder addressed to him at his address
appearing on the registry books, (ii) to each holder of any such bond payable
to bearer who shall have filed within two years with the Trustee an address for
notices to be addressed to him, (iii) to all other bondholders whose names and
addresses are preserved at the time by the Trustee, as provided in subsection
(A) of Section 7.02 hereof, and (iv) to the Company addressed to it at 528
Monroe Street, Alexandria, Louisiana, or at such other address as may be
designated by the Company from time to time; provided, however, that the
mailing of such notice to any bondholder shall in no case be a condition
precedent to the validity of any action taken at such meeting.
For the purposes of this Article and of Article XVII hereof, bonds
shall be deemed to be affected by action taken at any meeting if such action
adversely affects or diminishes the rights of holders thereof against the
Company or against its property. Any modification of the provisions of any
sinking fund or other similar fund established in respect of any particular
series shall be deemed to affect only the bonds of that series. The Trustee may
in its discretion determine whether or not, in accordance with the foregoing,
bonds of any particular series would be affected,by action proposed to be taken
at a meeting and any such determination shall be conclusive upon the holders of
bonds of such series and all other series. Subject to the provisions of
Sections 14.02 and 14.03 hereof, the Trustee shall not be liable for any
determination made in good faith in connection therewith.
SECTION 16.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors, or the holders of at least ten per
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centrum (10%) in aggregate principal amount of the bonds then outstanding,
which would be affected by the action proposed to be taken, shall have
requested the Trustee to call a meeting of bondholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within twenty days after receipt of such request, then
the Company or the holders of bonds in the amount above specified may determine
the time and place in the United States of America for such meeting and may
call such meeting to take any action authorized in Section 16.01 hereof, by
publishing notice thereof as provided in Section 16.02 hereof.
SECTION 16.04. To be entitled to vote at any meeting of bondholders a
person shall (i) be a holder of coupon bonds transferable by delivery of a
series which would be affected by the proposed action; or (ii) be a registered
holder of bonds of such a series (whether the same be fully registered or
registered as to principal); or (iii) be a person appointed by an instrument in
writing as proxy for the holder or holders of bonds of such a series by a
holder of coupon bonds transferable by delivery or by the holder of a
certificate then in effect issued pursuant to Section 11.01 hereof or by a
registered holder of bonds (whether the same be fully registered or registered
as to principal). The only persons who shall be entitled to be present or to
speak at any meeting of bondholders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 16.05. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of bondholders, in regard to proof of the holding of bonds and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidences of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit. Except as otherwise permitted
or required by any such regulations, the holding of bonds shall be proved in
the manner specified in Section 11.01 hereof and the appointment of any proxy
shall be proved in the manner specified in said Section 11.01 or by having the
signature
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of the person executing the proxy witnessed or guaranteed by any bank, bankers
or trust company authorized by said Section 11.01 to certify to the holding of
bonds transferable by delivery.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by bondholders as provided in Section 16.03 hereof, in which case
the Company or the bondholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 11.03 hereof, at any meeting each
bondholder or proxy shall be entitled to one vote for each and every unit of
the lowest principal amount of any of the bonds then outstanding, the holders
of which are entitled to vote as in this Article set forth, provided, however,
that no vote shall be cast or counted at any meeting in respect of any bond
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other
than by virtue of bonds held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other bondholders. Any
meeting of bondholders duly called pursuant to the provisions of Sections 16.02
or 16.03 hereof may be adjourned from time to time, and the meeting may be held
as so adjourned without further notice.
SECTION 16.06. The vote upon any resolution submitted in accordance
with the provisions of Section 16.01 hereof shall be by written ballots on
which shall be subscribed the signatures of the holders of bonds or
certificates or their representatives by proxy and the serial number or numbers
of the bonds held or represented by them. The chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at
the meeting. A record in duplicate of the proceedings of each meeting of
bondholders shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the
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205
facts setting forth a copy of the notice of the meeting and showing that said
notice was published as provided in Section 16.02 hereof. The record shall show
the serial numbers of the bonds voting in favor of any resolution submitted in
accordance with the provisions of Section 16.01 hereof. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 16.07. Nothing in this Article contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
bondholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the bondholders under any of
the provisions of this Indenture or of the bonds.
ARTICLE XVII.
SUPPLEMENTAL INDENTURES.
SECTION 17.01. The Company, when authorized by a resolution of its
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall not contain
any provisions which are in conflict with the Trust Indenture Act of 1939 as
then in effect) for one or more of the following purposes:
(a) to correct or amplify the description of any property
hereby mortgaged or intended so to be or to convey, transfer and
assign to the Trustee and subject to the lien of this Indenture, with
the same force and effect as though included in the granting clause
hereof, additional property then owned by the Company, acquired
through consolidation, merger, purchase or otherwise;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article XIII hereof;
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206
(c) to set forth the terms and provisions of any series of
bonds to be issued hereunder (other than bonds of Series A) and the
form of the bonds and coupons of such series;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions for the protection of the
mortgaged and pledged property and the holders of the bonds as its
Board of Directors and the Trustee shall consider to be for the
protection of the holders of the bonds, and to make the occurrence and
continuance of a default in any of such additional covenants,
restrictions or conditions a default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein
set forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such
default or may limit the right of the holders of a majority in
aggregate principal amount of the bonds to waive such default; and
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Indenture and
which shall not adversely affect the interests of the holders of the
bonds.
The Company shall deliver to the Trustee the resolution of the Board
of Directors authorizing any such supplemental indenture together with an
opinion of counsel that the proposed supplemental indenture is authorized by
and conforms to the requirements of this Section. To the extent permitted by
Sections 14.02 and 14.03 the Trustee may rely upon such opinion of counsel as
conclusive evidence that any such supplemental indenture complies with the
foregoing provisions of this Section.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appro-
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priate agreements and stipulations which may be therein contained and to accept
the conveyance, transfer and assignment of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the bonds at the time outstanding, notwithstanding any of
the provisions of Section 17.02 hereof.
SECTION 17.02. With the consent (evidenced as provided in Section
11.01 hereof) of the holders of not less than seventy-five per centum (75%) in
aggregate principal amount of the bonds at the time outstanding which would be
affected by the action proposed to be taken, the Company, when authorized by a
resolution of its Board of Directors, and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that anything in this Article to the contrary
notwithstanding (a) the bondholders shall have no power to (i) extend the fixed
maturity of any bonds, reduce the rate or extend the time of payment of
interest thereon or modify the terms of payment of principal at maturity or by
redemption, or otherwise modify the terms of payment of any bond without the
consent of the holders of each bond which would be so affected, or (ii) reduce
the percentage of bonds, the holders of which are required to consent to any
such supplemental indenture without the consent of the holders of all bonds
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any outstanding bond of the lien of the Indenture on any
of the mortgaged and pledged property without the consent of the holder of each
bond so affected; and (b) no action hereinabove specified which would affect
the rights of the holders of bonds of one or more but less than all series may
be taken unless approved by holders of not less than seventy-five per centum
(75%) in principal amount of outstanding bonds of such one or more series taken
in the aggregate affected.
<PAGE> 220
208
No such supplemental indenture shall contain any provisions which are
in conflict with the Trust Indenture Act of 1939 as then in effect, unless all
of the bonds then outstanding and then to be issued under this Indenture as
supplemented by such Supplemental Indenture shall either be exempt securities,
as defined in the Trust Indenture Act of 1939 as then in effect, or are to be
issued in a transaction exempt from the provisions thereof.
Upon the request of the Company, accompanied by a copy of a resolution
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of bondholders
as aforesaid and an opinion of counsel to the effect that such supplemental
indenture complies with the provisions of this Section, the Trustee shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion but shall not be obligated to enter into such supplemental
indenture.
It shall not be necessary for the consent of the bondholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall publish a notice, setting forth in general terms the substance of such
supplemental indenture, at least once in a daily newspaper of general
circulation in the City of New Orleans, Louisiana. Any failure of the Company
to publish such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 17.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, duties and obligations under this Indenture of the Company, the Trustee
and the holders of bonds of all series outstanding thereunder shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the
<PAGE> 221
209
terms and conditions of any such supplemental indenture shall be and be deemed
to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 17.04. Bonds authenticated and delivered after the execution
of any supplemental indenture pursuant to the provisions of this Article may
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company or the Trustee shall so
determine, new bonds so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered without cost to the holders
of bonds then outstanding, upon surrender of such bonds and, in the case of
coupon bonds, with all unmatured coupons and all matured coupons not fully
paid, the new bonds so issued to be of an aggregate principal amount equal to
the aggregate principal amount of those so surrendered.
ARTICLE XVIII.
MISCELLANEOUS.
SECTION 18.01. Nothing in this Indenture, expressed or implied, is
intended or shall be construed, to confer upon, or to give to, any person, firm
or corporation, other than the parties hereto and the holders of the bonds and
coupons outstanding hereunder, any right, remedy, or claim under or by reason
of this Indenture or any covenant, condition, stipulation, promise or agreement
hereof, and all the covenants, conditions, stipulations, promises and
agreements in this Indenture contained by and on behalf of the Company shall be
for the sole and exclusive benefit of the parties hereto, and of the holders of
the bonds and of the coupons outstanding hereunder.
SECTION 18.02. So long as the Company is not in default in the payment
of interest on any bonds outstanding hereunder and none of the completed
defaults specified in Section 10.01 hereof shall have occurred and be
continuing, any money which has been deposited with the Trustee under any of
the provisions hereof (other than money which has been deposited with the
Trustee for the purpose of effecting payment or redemption of any bonds issued
hereunder or interest thereon or which the Trustee has been directed to hold
and apply for the purpose of such
<PAGE> 222
210
payment or redemption or which has been deposited with the Trustee pursuant to
the provisions of any sinking, purchase, improvement, or other similar fund
provided for the bonds of any series) shall, at the request of the Company
evidenced by a resolution, be invested or reinvested by the Trustee in any
bonds or other obligations of the United States of America designated by the
Company, maturing not more than two years from the date of their purchase by
the Trustee, and until a completed default specified in Section 10.01 hereof
shall have occurred and be continuing, any interest on such bonds and
obligations which may be received by the Trustee, shall be forthwith paid to
the Company. Such bonds and obligations shall be held by the Trustee as a part
of the mortgaged and pledged property and subject to the same provisions hereof
as the cash used to purchase the same, but upon a like request of the Company,
the Trustee shall sell all or any designated part of the same and the proceeds
of such sale shall be held by the Trustee subject to the same provisions hereof
as the cash used by it to purchase the bonds and obligations so sold. If such
sale shall produce a net sum less than the cost of the bonds or other
obligations so sold, the Company covenants that it will pay promptly to the
Trustee such amount of cash as with the net proceeds from such sale will equal
the cost of the bonds or other obligations so sold, and if such sale shall
produce a net sum greater than the cost of the bonds or obligations so sold,
the Trustee shall promptly pay to the Company an amount in cash equal to such
excess.
SECTION 18.03. In the event that any bond issued hereunder shall not
be presented for payment when the principal thereof becomes due, either at
maturity or otherwise, or at the date fixed for the redemption thereof, or in
the event that any coupon shall not be presented for payment at the due date
thereof, the Company, having deposited with the Trustee for the purpose, or
having left with it if previously so deposited, moneys sufficient to pay the
principal of such bond (and premium, if any), together with all interest due
thereon to the date of the maturity of such bond or to the date fixed for the
redemption thereof, or to pay such coupon, as the case may be, for the use and
benefit of the holder thereof, it shall be the duty of the Trustee to hold the
moneys, so deposited, for the benefit of the holder of such bond or overdue
coupon, as the case may be, subject to the provisions of Section 15.04 hereof.
<PAGE> 223
211
SECTION 18.04. Subject to the provisions of Article XIII and Article
XIV hereof, whenever in this Indenture any of the parties hereto is named or
referred to, this shall be deemed to include the successors or assigns of such
party, and all the covenants and agreements in this Indenture contained by or
on behalf of the Company or by or on behalf of the Trustee shall bind and inure
to the benefit of the respective successors and assigns of such parties whether
so expressed or not.
SECTION 18.05. If any provision of this Indenture limits, qualifies or
conflicts with another provision of this Indenture which would be required to
be included in an indenture qualified under the provisions of the Trust
Indenture Act of 1939 by any provisions of Sections 310 to 317, inclusive, of
said Act, such required provisions shall control.
SECTION 18.06. Whenever, except in Section 17.01 hereof, reference is
made in this Indenture to the Trust Indenture Act of 1939, reference is made to
such Act as approved August 3, 1939.
SECTION 18.07. Whenever the Trustee shall execute, whether by notarial
act or act under private signature, an instrument cancelling this Indenture or
releasing any specified property from the lien hereof, the several Clerks of
Court and Recorders of Mortgages in and for the respective parishes of the
State of Louisiana, in which the mortgaged property is situated, shall be, and
they are hereby, expressly authorized, empowered and directed to give effect to
such instrument according to its terms and to cancel of record the lien hereof
in its entirety, or with respect to such specified property, as the case may
be, without being bound to ascertain the authority of the Trustee to execute
such instrument, or to inquire as to any facts, required by the provisions
hereof for the exercise of such authority, or to inquire as to the application
of any money or other property paid or delivered to the Trustee as a condition
of the execution of such instrument; it being the intent hereof, without
limitation of any other provision of this Indenture, that the Trustee shall be
and he is hereby irrevocably appointed special agent and representative of the
bondholders for the purpose of cancelling or releasing of record the lien
hereof at any time or from time to time.
SECTION 18.08. The titles of the several Articles of this Indenture
shall not be deemed to be any part thereof.
<PAGE> 224
212
SECTION 18.09. This Indenture shall be simultaneously executed in
several counterparts, and all such counterparts executed and delivered, each as
an original, shall constitute but one and the same instrument.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has
caused this Indenture to be signed in its corporate name by its President or
one of its Vice-Presidents and sealed with the corporate seal attested by its
Secretary or one of its Assistant Secretaries and The National Bank of Commerce
in New Orleans to evidence its acceptance of the trust hereby created has
caused this Indenture to be signed in its corporate name by one of its Vice-
Presidents and sealed by its corporate seal attested by one of its Assistant
Cashiers, all as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ F. H. COUGHLIN
President.
[SEAL]
Attest: /s/ T.P. STREET
Secretary.
Signed, sealed, acknowledged
and delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC., in the
presence of:
/s/ TEMPIE S. HALE
/s/ KATHRYN P. HOLLIS
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
By /s/ F. C. DOYLE
Vice President.
[SEAL]
Attest: /s/ E. C. BOYER
Assistant Cashier.
Signed, sealed, acknowledged
and delivered by THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS in
the presence of:
/s/ [ILLEGIBLE]
/s/ [ILLEGIBLE]
<PAGE> 225
213
STATE OF LOUISIANA )
)
PARISH OF RAPIDES )
BE IT KNOWN, That on this 6th day of July, 1950, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared F. H. Coughlin the President and
T. P. Street the Secretary of Central Louisiana Electric Company, Inc., the
grantor in the foregoing instrument, to me personally known and known to me to
be such officers, respectively, of such Company, and personally known to me to
be the identical persons whose names are subscribed and affixed to the foregoing
instrument as such officers, respectively, and who subscribed the name of the
Company thereto, and in my presence and in the presence of the undersigned
witnesses, of lawful age and domicile, severally acknowledged that the same is
their respective, free and voluntary act and deed as such officers and the free
and voluntary act and deed of said Company for the uses and purposes therein
expressed; and the said persons being each by me duly and severally sworn as
individuals did depose and say that they are such officers, respectively, of
said Company; that they know the seal of said Company; that the seal affixed to
the foregoing instrument was and is such corporate seal; that said seal was so
affixed and said instrument was so signed on behalf of said Company by the order
and authority of the Board of Directors of said Company; and that they signed
their names thereto as such officers, respectively, of said Company by like
authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of Tempie
S. Hale and Kathryn P. Hollis, witnesses of lawful age and domicile, and of me,
said Notary Public.
Witness:
/s/ TEMPIE S. HALE
/s/ KATHRYN P. HOLLIS
/s/ F. H. COUGHLIN
------------------------
President.
/s/ T. P. STREET
------------------------
Secretary.
/s/ [ILLEGIBLE]
------------------------
Notary Public.
[SEAL]
My Commission expires at death or on removal from office.
<PAGE> 226
214
STATE OF LOUISIANA )
)
PARISH OF ORLEANS )
BE IT KNOWN, That on this 6th day of July, 1950, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared F. C. Doyle the Vice President,
and E. C. Boyer the Assistant Cashier of The National Bank of Commerce in New
Orleans, a national banking association, duly organized and existing under the
laws of the United States of America, Trustee under the foregoing instrument, to
me personally known and known to me to be such officers, respectively, of said
Bank, and personally known to me to be the identical persons whose names are
subscribed and affixed to the foregoing instrument as such officers
respectively, and who subscribed the name of the said Bank thereto, and in my
presence and in the presence of the undersigned witnesses, of lawful age and
domicile, severally acknowledged that the same is their respective, free and
voluntary act and deed as such officers and the free and voluntary act and deed
of said Bank for the uses and purposes therein expressed; and the said persons
being each by me duly and severally sworn as individuals did depose and say that
they are such officers, respectively, of said Bank; that they know the seal of
said Bank; that the seal affixed to the foregoing instrument was and is such
corporate seal; that said seal was so affixed and said instrument was so signed
on behalf of said Bank by the order and authority of the Board of Directors of
said Bank; and that they signed their names thereto as such officers,
respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of R. J.
Emmer and A. J. Joubert witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness:
/s/ R. J. EMMER
/s/ A. J. JOUBERT Vice President
/s/ F. C. DOYLE
Assistant Cashier
/s/ E. C. BOYER
Notary Public
/s/ [ILLEGIBLE]
[SEAL]
My Commission expires at death.
<PAGE> 227
215
United States Internal Revenue documentary tax stamps required in
connection with the issuance of $5,500,000 principal amount of Central
Louisiana Electric Company, Inc. First Mortgage Bonds, Series A, 3%, dated July
1, 1950, and due July 1, 1980, have been affixed to a counterpart of this
Indenture in our possession and cancelled.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE,
By /s/ E. C. BOYER
---------------------------
Assistant Cashier
<PAGE> 1
EXHIBIT 4(a)(2)
================================================================================
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
AS TRUSTEE
------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1951
------------------
ISSUE OF FIRST MORTGAGE BONDS, SERIES B, 3 3/4%,
AND
FIRST MORTGAGE BONDS, SERIES C, 3 3/4%
DUE OCTOBER 1, 1976
------------------
SUPPLEMENTAL TO INDENTURE OF MORTGAGE AND DEED OF TRUST
DATED AS OF JULY 1, 1950
================================================================================
PRESS OF ALLEN, LANE & SCOTT, PHILADELPHIA
<PAGE> 2
TABLE OF CONTENTS*
-----------
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES ........................................................................................1
RECITALS .......................................................................................1
FORM OF COUPON BOND OF SERIES B AND SERIES C ...................................................2
FORM OF COUPON FOR BONDS OF SERIES B AND SERIES C ..............................................9
FORM OF REGISTERED BOND WITHOUT COUPONS OF SERIES B AND SERIES C ..............................10
RECITAL OF COMPLIANCE WITH LEGAL REQUIREMENTS .................................................16
GRANTING CLAUSES ..............................................................................17
DESCRIPTION OF PROPERTY .......................................................................18
GENERAL AND AFTER-ACQUIRED PROPERTY CLAUSES ...................................................64
APPURTENANCES, ETC . ..........................................................................66
PROPERTIES EXCEPTED FROM LIEN OF INDENTURE ....................................................66
HABENDUM ......................................................................................84
SUBJECT CLAUSE ................................................................................84
GRANT IN TRUST ................................................................................85
DEFEASANCE CLAUSE .............................................................................85
COVENANT CLAUSE................................................................................85
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES B AND BONDS OF SERIES C.
SEC. 1.1. Description of Bonds of Series B ................................................85
SEC. 1.2. Description of Bonds of Series C ................................................87
ARTICLE II.
SINKING AND IMPROVEMENT FUND FOR BONDS OF SERIES B AND
BONDS OF SERIES C.
SEC. 2.1. Covenant to deposit certain amount with Trustee as sinking fund for Bonds
of Series B .....................................................................88
SEC. 2.2. Covenant to deposit certain amount with Trustee as sinking fund for Bonds
of Series C .....................................................................90
SEC. 2.3. Cancellation of Bonds acquired through sinking fund .............................92
SEC. 2.4. Compensation and reimbursement of Trustee for administration of sinking
fund ............................................................................92
</TABLE>
- ------------------
* The table of contents is not a part of the Indenture as executed.
<PAGE> 3
ii
ARTICLE III.
AMENDMENTS OF ORIGINAL INDENTURE.
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SEC. 3.1. Section 1.03 (viii) amended .........................................................92
SEC. 3.2. Section 2.07 amended ................................................................93
SEC. 3.3. Section 2.10 amended ................................................................93
SEC. 3.4. Section 4.04 amended ................................................................93
SEC. 3.5. Section 5.07 amended ................................................................93
SEC. 3.6. Section 5.10 amended ................................................................93
SEC. 3.7. Line 2 of Section 5.20 amended ......................................................94
SEC. Section 5.20 amended by addition to last line covering additions to earned
surplus .............................................................................94
SEC. 3.9. Sections 8.02 and 15.01 amended .....................................................94
SEC. 3.10. Application of Section 5.15 limited .................................................95
SEC. 3.11. First Supplemental Indenture exempted from Section 17.02 of original
Indenture ...........................................................................95
SEC. 3.12. New Sections 5.24 and 5.25 added to Article V of original Indenture .................95
SEC. 3.13 Reference to certain additions to and amendments of "Saving and Excepting"
clauses of original Indenture .......................................................96
ARTICLE IV.
STAMPING AND REVISION OF BONDS OF SERIES A.
SEC. 4.1. Form of stamping ....................................................................96
SEC. 4.2. Revision of Bonds of Series A .......................................................96
ARTICLE V.
MISCELLANEOUS.
SEC. 5.1. Lien of Indenture ...................................................................97
SEC. 5.2. Original Indenture confirmed as supplemented ........................................97
SEC. 5.3. Trustees liabilities limited to original Indenture as supplemented ..................97
SEC. 5.4. Counterparts of First Supplemental Indenture ........................................97
SEC. 5.5. Date of First Supplemental Indenture ................................................97
TESTIMONIUM ....................................................................................98
EXECUTION ......................................................................................98
ACKNOWLEDGMENTS ................................................................................99
RECORDING DATA .................................................................................102
</TABLE>
<PAGE> 4
FIRST SUPPLEMENTAL INDENTURE, dated as of October 1, 1951, between
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and
existing under and by virtue of the laws of the State of Louisiana (hereinafter
sometimes called the "Company"), party of the first part, and THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and
existing under and by virtue of the laws of the United States of America, as
Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter
sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of
Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to
the Trustee, to secure the Company's First Mortgage Bonds, limited to
$100,000,000 aggregate principal amount at any one time outstanding and issuable
in series, from time to time, in the manner and subject to the conditions set
forth in the Original Indenture, and by said Original Indenture granted and
conveyed unto the Trustee, upon the trusts, uses and purposes specifically
therein set forth, certain real estate, franchises and other property therein
described, including property acquired after the date thereof except as therein
otherwise provided; and
WHEREAS, the Company has heretofore issued under the Original Indenture
$5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which
$5,445,000 principal amount remains outstanding as of the date of this
supplemental indenture (hereinafter called "First Supplemental Indenture"), the
Original Indenture as amended or supplemented by all indentures supplemental
thereto, including this First Supplemental Indenture (being hereinafter referred
to as the "Indenture"); and
WHEREAS, the Original Indenture provides for the issuance of bonds
thereunder in one or more series, the form of each series of bonds and of the
coupons to be attached to the coupon bonds to be
<PAGE> 5
2
substantially in the forms set forth therein with such omissions, variations,
and insertions as are authorized or permitted by the Original Indenture and
determined and specified by the Board of Directors of the Company; and
WHEREAS, the Company by appropriate corporate action in conformity with
the terms of the Original Indenture has duly determined to create a second and
third series of bonds under the Indenture to be designated, respectively, as
"First Mortgage Bonds, Series B, 3 3/4%" (herein sometimes called the "bonds of
Series B"), and "First Mortgage Bonds, Series C, 3 3/4%" (herein sometimes
called the "bonds of Series C"), which said series are to have the same terms
and conditions except as to certain redemption provisions and which said bonds
of Series B and Series C, and the interest coupons to be attached to the coupon
bonds of said series, are to be substantially in the following forms,
respectively:
[FORM OF COUPON BOND OF SERIES B AND SERIES C]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series * , 3 3/4%
Due October 1, 1976
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
holder hereof, on October 1, 1976, at the office or agency of the Company in the
City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, and to pay interest thereon
semi-annually on April 1 and October 1 of each year at the rate of three and
three-fourths per centum (3 3/4%) per annum at such
- ------------------
* The letter "B" to be inserted in bonds of Series B, and the letter "C' to
be inserted in bonds of Series C, in all places in the bonds where such
designations are left blank.
<PAGE> 6
3
office or agency in like coin or currency, from October 1, 1951, until this bond
shall mature, according to its terms or on prior redemption or by declaration or
otherwise, but only upon presentation and surrender of the coupons for such
interest installments as are evidenced thereby, hereto appertaining, as they
shall severally mature, and at the highest rate of interest borne by any of the
bonds outstanding under the Indenture hereinafter referred to, from such date of
maturity until the obligation of the Company with respect to payment of the
principal hereof, and premium, if any, shall have been discharged.
This bond is one of an authorized issue of bonds of the Company known as
its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000)
at any one time outstanding, issued and to be issued, in one or more series, and
equally and ratably secured (except insofar as a sinking fund or other similar
fund established in accordance with the provisions of the Indenture may afford
additional security for the bonds of any specific series) by an indenture
(herein called the "Original Indenture") dated as of July 1, 1950, executed by
the Company to THE NATIONAL BANK OF COMMERCE OF NEW ORLEANS, as Trustee
(hereinafter called the "Trustee"), as supplemented and amended by a First
Supplemental Indenture dated as of October 1, 1951, executed by the Company to
the Trustee, to which Original Indenture, First Supplemental Indenture and all
other indentures supplemental thereto (said Original Indenture as so sup-
plemented and amended being herein called the "Indenture") reference is hereby
made for a description of the property mortgaged and pledged, the nature and
extent of the security, the rights of the holders of the bonds and of the
Company in respect of such security, the rights, duties and immunities of the
Trustee, and the terms and conditions upon which the bonds are, and are to be,
secured. As provided in the Indenture, the bonds may be issued in series for
various principal sums, may bear different dates and mature at different times,
may bear interest at different rates and may otherwise vary as in the Indenture
provided or permitted. This bond is one of the bonds described in the Indenture
and designated therein as "First Mortgage Bonds, Series 3 3/4% (hereinafter
referred to as the "bonds of Series * ").
<PAGE> 7
4
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (I)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any outstanding bond of the lien of the Indenture on any
of the mortgaged and pledged property without the consent of the holder of each
bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such consent is made upon this bond. No
reference herein to the Indenture and no provision of this bond or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay at the stated or accelerated maturity herein and in
the Indenture provided, the principal of and interest and premium, if any, on
this bond at the time and place and at the rate and in the coin or currency
herein prescribed.
<PAGE> 8
5
The coupon bonds of Series * are issuable in the denomination of
$1,000. The registered bonds without coupons of Series * are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series * are entitled to the benefit of the Sinking and
Improvement Fund provided for in Article H of the First Supplemental Indenture.
The bonds of Series * may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said City of New Orleans, the first
publication in each case to be not less than thirty (30) days and not more than
sixty (60) days before such redemption date (provided, however, that if all the
bonds of Series * at the time outstanding shall be registered bonds without
coupons or coupon bonds registered as to principal, such publication need not be
made, but, in lieu thereof, such notice may be given by mailing the same to each
registered holder of a bond so to be redeemed directed to his registered address
not less than thirty (30) days and not more than sixty (60) days before the
redemption date); all as provided in the Indenture.
<PAGE> 9
6
To be
inserted
in Bonds
of Series B.
If redeemed by the application of moneys in the Sinking and
Improvement Fund for bonds of Series B provided for in Article H of the
First Supplemental Indenture or moneys in the Depreciation Fund
provided for in Section 5.07 of the Indenture or by the application of
moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public
authority, the bonds of Series B are redeemable in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for public and private debts, at the redemption
price at the time applicable, as set forth in Column A of the following
schedule, and if redeemed otherwise than by the application of such
moneys, the bonds of Series B are redeemable in like coin or currency,
at the redemption price at the time applicable, as set forth in Column
B of the following schedule, together with, in each case, interest
accrued to the date fixed for redemption:
<TABLE>
<CAPTION>
Redemption Price
(Percentage of Principal Amount)
--------------------------------
If redeemed during the period Col. A Col. B
------------------------------------- --------- ---------
<S> <C> <C>
October 2, 1951 - September 30, 1952...... 108.41 111.00
October 1, 1952 - September 30, 1953...... 108.18 110.00
October 1, 1953 - September 30, 1954...... 107.94 110.00
October 1, 1954 - September 30, 1955...... 107.69 110.00
October 1, 1955 - September 30, 1956...... 107.44 109.00
October 1, 1956 - September 30, 1957...... 107.18 109.00
October 1, 1957 - September 30, 1958...... 106.91 109.00
October 1, 1958 - September 30, 1959...... 106.63 109.00
October 1, 1959 - September 30, 1960...... 106.35 108.00
October 1, 1960 - September 30, 1961...... 106.05 108.00
October 1, 1961 - September 30, 1962...... 105.75 107.00
October 1, 1962 - September 30, 1963...... 105.44 107.00
October 1, 1963 - September 30, 1964...... 105.12 107.00
October 1, 1964 - September 30, 1965...... 104.79 106.00
October 1, 1965 - September 30, 1966...... 104.45 106.00
October 1, 1966 - September 30, 1967...... 104.10 106.00
October 1, 1967 - September 30, 1969...... 103.74 105.00
October 1, 1968 - September 30, 1969...... 103.38 105.00
October 1, 1969 - September 30, 1970...... 103.00 104.00
October 1, 1970 - September 30, 1971...... 102.60 104.00
October 1, 1971 - September 30, 1972...... 102.20 103.00
October 1, 1972 - September 30, 1973...... 101.79 103.00
October 1, 1973 - September 30, 1974...... 101.36 102.00
October 1, 1974 - September 30, 1975...... 100.92 101.00
October 1, 1975 - September 30, 1976...... 100.47 100.50
</TABLE>
<PAGE> 10
7
To be
inserted
in Bonds
of Series C.
If redeemed by the application of moneys in the Sinking and
Improvement Fund for bonds of Series C provided for in Article II of
the First Supplemental Indenture or moneys in the Depreciation Fund
provided for in Section 5.07 of the Indenture or by the application of
moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public
authority, the bonds of Series C are redeemable in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for public and private debts at the principal
amount thereof together with accrued interest to the date fixed for
redemption, without premium, and if remoneys,otherwise than by the
application of such the bonds of Series C are redeemable in like coin
or currency, at the redemption price at the time applicable, as set
forth in the following schedule, together with, in each case, interest
accrued to the date fixed for redemption:
<TABLE>
<CAPTION>
Redemption Price
(Percentage of
If redeemed during the period Principal Amount)
------------------------------------ ------------------
<S> <C>
October 2, 1951 - September 30, 1952................ 103 2/8
October 1, 1952 - September 30, 1953................ 103
October 1, 1953 - September 30, 1954................ 102 7/8
October 1, 1954 - September 30, 1955................ 102 3/4
October 1, 1955 - September 30, 1956................ 102 5/8
October 1, 1956 - September 30, 1957................ 102 1/2
October 1, 1957 - September 30, 1958................ 102 1/2
October 1, 1958 - September 30, 1959................ 102 3/8
October 1, 1959 - September 30, 1960................ 102 1/4
October 1, 1960 - September 30, 1961................ 102 1/8
October 1, 1961 - September 30, 1962................ 102
October 1, 1962 - September 30, 1963................ 101 7/8
October 1, 1963 - September 30, 1964................ 101 3/4
October 1, 1964 - September 30, 1965................ 101 5/8
October 1, 1965 - September 30, 1966................ 101 1/2
October 1, 1966 - September 30, 1967................ 101 3/8
October 1, 1967 - September 30, 1968................ 101 1/4
October 1, 1968 - September 30, 1969................ 101 1/8
October 1, 1969 - September 30, 1970................ 101
October 1, 1970 - September 30, 1971................ 100 7/8
October 1, 1971 - September 30, 1972................ 100 3/4
October 1, 1972 - September 30, 1973................ 100 5/8
October 1, 1973 - September 30, 1974................ 100 1/2
October 1, 1974 - September 30, 1975................ 100 1/4
October 1, 1975 - October 1,1976.................... 100
</TABLE>
<PAGE> 11
8
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in the principal amount of the bonds
outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as
to principal at the office or agency of the Company in said City of New Orleans,
and such registration noted hereon, after which no valid transfer hereof can be
made, except at such office or agency, until after registered transfer to
bearer, but after such registered transfer to bearer this bond shall be again
transferable by delivery. Such registration, however, shall not affect the
negotiability of the coupons, which shall always remain payable to bearer, be
treated as negotiable and pass by delivery. The Company and the Trustee, any
paying agent and any bond registrar may deem and treat the bearer of this bond
if it is not registered as to principal, or, if this bond is registered as
herein authorized, the person in whose name this bond is registered, as the
absolute owner hereof, and the bearer of any coupon hereunto appertaining, as
the absolute owner thereof, whether or not this bond or such coupon shall be
overdue, for the purpose of receiving payment and for all other purposes and
neither the Company nor the Trustee nor any paying agent nor any bond registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any
<PAGE> 12
9
incorporator or any past, present or future subscriber to the capital stock,
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors, as such, being waived and
released by the holder and owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or
obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
the Trustee under the Indenture, or its successor thereunder, shall have signed
the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
interest coupons bearing the facsimile signature of its Treasurer to be attached
hereto, and this bond to be dated October 1, 1951.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series * )
$18.75
On the first day of , 19 , unless the bond hereinafter mentioned shall have
been called for previous redemption and payment of the redemption price thereof
shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will
pay to bearer, upon surrender of this coupon, at its office or agency in the
City of
<PAGE> 13
10
New Orleans, Louisiana, Eighteen Dollars and Seventy-five Cents in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, being six months' interest then due
on its First Mortgage Bond, Series * , 3 3/4 %, No. .
Treasurer.
[FORM OF REGISTERED BOND OF SERIES B AND SERIES C.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series * , 3 3/4%,
Due October 1, 1976
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (herein after called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to or registered assigns on October 1, 1976, at the office or agency
of the Company in the City of New Orleans, Louisiana, Dollars ($ ) in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for public and private debts, and to pay interest thereon
semi-annually on April 1 and October 1 of each year, at the rate of three and
three-fourths per centum (3 3/4%) per annum., at such office or agency, in like
coin or currency, from the interest payment date next preceding the date of this
bond, or if this bond be dated prior to April 1, 1952 then from October 1, 1951,
until this bond shall mature, according to its terms or on prior redemption or
by declaration or otherwise, and at the highest rate of interest borne by any of
the bonds outstanding under the Indenture hereinafter referred to, from such
date of maturity until the obligation of the Company with respect to payment of
the principal hereof, and premium, if any, shall have been discharged.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accord
<PAGE> 14
11
ance with the provisions of the Indenture may afford additional security for the
bonds of any specific series) by an indenture (herein called the "Original
Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"),
as supplemented and amended by a First Supplemental Indenture dated as of
October 1, 1951, executed by the Company to the Trustee, to which Original
Indenture, First Supplemental Indenture and all other indentures supplemental
thereto (said Original Indenture as so supplemented and amended being herein
called the "Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, secured. As provided in the
Indenture, the bonds may be issued in series for various principal sums, may
bear different dates and mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided or
permitted. This bond is one of the bonds described in the Indenture and
designated therein as "First Mortgage Bonds, Series* , 3 3/4%" (hereinafter
referred to as the "bonds of Series* ").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (I)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required
<PAGE> 15
12
to consent to any such supplemental indenture, without the consent of the
holders of all bonds then outstanding, or (iii) permit the creation of any lien
ranking prior to or equal with the lien of the Indenture on any of the mortgaged
and pledged property without the consent of the holders of all bonds then
outstanding, or (iv) deprive the holder of any outstanding bond of the lien of
the Indenture on any of the mortgaged and pledged property without the consent
of the holder of each bond so affected. Any such consent by the holder of this
bond (unless effectively revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders of this
bond, irrespective of whether or not any notation of such consent is made upon
this bond. No reference herein to the Indenture and no provision of this bond or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay at the stated or accelerated maturity herein
and in the Indenture provided, the principal of and interest and premium, if
any, on this bond at the time and place and at the rate and in the coin or
currency herein prescribed.
The coupon bonds of Series* are issuable in the denomination of
$1,000. The registered bonds without coupons of Series* are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series* are entitled to the benefit of the Sinking and
Improvement Fund provided for in Article II of the First Supplemental Indenture.
The bonds of Series* may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of
<PAGE> 16
13
notice of such redemption in a newspaper printed in the English language and
customarily published on each business day and of general circulation in the
Borough of Manhattan, The City of New York, New York, and like publication in a
similar newspaper of said City of New Orleans, the first publication in each
case to be not less than thirty (30) days and not more than sixty (60) days
before such redemption date (provided, however, that if all the bonds of Series
* at the time outstanding shall be registered bonds without coupons or coupon
bonds registered as to principal, such publication need not be made, but, in
lieu thereof, such notice may be given by mailing the same to each registered
holder of a bond so to be redeemed directed to his registered address not less
than thirty (30) days and not more than sixty (60) days before the redemption
date); all as provided in the Indenture.
To be
inserted
in bonds
of Series B.
If redeemed by the application of moneys in the Sinking
and Improvement Fund for bonds of Series B, provided for in
Article II of the First Supplemental Indenture or moneys in
the Depreciation Fund provided for in Section 5.07 of the
Indenture or by the application of moneys received by the
Trustee in connection with any release of property upon any
acquisition thereof by any municipal corporation or other
governmental subdivision or governmental body or public
authority, the bonds of Series B are redeemable in such coin
or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts,
at the redemption price at the time applicable, as set forth
in Column A of the following schedule, and if redeemed
otherwise than by the application of such moneys, the bonds
of Series B are redeemable in like coin or currency, at the
redemption price at the time applicable, as set forth in
Column B of the following schedule, together with, in each
case, interest accrued to the date fixed for redemption:
(There will be inserted
here in all registered bonds without
coupons of Series B, the same tables
of redemption prices and
corresponding dates as are specified
for such redemption in the form of
coupon bond of Series B hereinbefore
set forth.)
<PAGE> 17
14
To be
inserted
in bonds
of Series C.
If redeemed by the application of moneys in the Sinking and
Improvement Fund for bonds of Series C provided for in Article II of
the First Supplemental Indenture or moneys in the Depreciation Fund
provided for in Section 5.07 of the Indenture or by the application of
moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public
authority, the bonds of Series C are redeemable in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for public and private debts at the principal
amount thereof together with accrued interest to the date fixed for
redemption, without premium, and if redeemed otherwise than by the
application of such moneys, the bonds of Series C are redeemable in
like coin or currency, at the redemption price at the time applicable,
as set forth in the following schedule, together with, in each ease,
interest accrued to the date fixed for redemption:
(There will be inserted
here in all registered bonds without
coupons of Series C, the same table
of redemption prices and
corresponding dates as are specified
for such redemption in the form of
coupon bond of Series C hereinbefore
set forth.)
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
<PAGE> 18
15
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in the principal amount of the bonds
outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in said City of New Orleans, upon surrender and
cancellation of this bond, and upon payment, if the Company shall require it, of
the transfer charges prescribed in the Indenture, and thereupon, a new
registered bond or bonds without coupons of authorized denominations of the same
series and for the same aggregate principal amount will be issued to the
transferee in exchange herefor as provided in the Indenture. The Company and the
Trustee, any paying agent and any bond registrar may deem and treat the person
in whose name this bond is registered as the absolute owner hereof, whether or
not this bond shall be overdue, for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture,
or its successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
<PAGE> 19
16
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
and
WHEREAS, all acts and things prescribed by law and by the charter and
by-laws of the Company necessary to make the bonds of Series B and Series C,
when executed by the Company and authenticated by the Trustee, as in the
Original Indenture provided, valid, binding and legal obligations of the
Company, entitled in all respects to the security of the said Original Indenture
and indentures supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original
Indenture for such further instruments and indentures supplemental to the
Original Indenture, as may be necessary or proper to carry out more effectually
the purposes of the Original Indenture, and to subject to the lien of the
Original Indenture any property acquired after the date of the Original
Indenture and intended to be covered thereby, with the same force and effect as
though included in the granting clauses thereof, and to add such further
covenants, restrictions or conditions for the protection of the mortgaged and
pledged property and the holders of the bonds as the Board of Directors of the
Company and the Trustee shall consider to be for the protection of the holders
of the bonds, and to set forth the terms and provisions of any series of bonds
to be issued under the Original Indenture and the form of the bonds and coupons
of such series; and the Company since the date of the Original Indenture has
acquired additional property
<PAGE> 20
17
not heretofore specifically subjected to the lien of the Original Indenture; and
it is desired to add certain further covenants, restrictions and conditions for
the protection of the mortgaged and pledged property and the holders of the
bonds, as provided in this First Supplemental Indenture, which the Board of
Directors of the Company and the Trustee consider to be for the protection of
the holders of the bonds; and the Company desires to issue bonds of Series B and
Series C; and the Company desires to amend certain provisions of the Original
Indenture and to obtain the release of certain parcels of land from the lien of
said Indenture without compliance with the terms of said Indenture, as
hereinafter provided; and the Company therefore deems it advisable to enter into
this First Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been duly authorized by the Board of Directors of the Company at a
meeting duly called and held according to law, and the holders of all of the
bonds outstanding under the Original Indenture have duly consented to the
amendments of certain provisions of the Original Indenture and to the release of
certain parcels of land from the lien of said Indenture without compliance with
the terms of said Indenture, as hereinafter provided, and all conditions and
requirements necessary to make this First Supplemental Indenture a valid,
binding and legal instrument in accordance with its terms, for the purposes
herein expressed, and the execution and delivery hereof, in the form And terms
hereof, have been in all respects duly authorized;
Now, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That Central Louisiana Electric Company, Inc., by way of further assurance and
in consideration of the premises and of the acceptance by the Trustee of the
trusts hereby created and of one dollar to it duly paid by the Trustee at or
before the ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, and in order to further secure the payment of the principal
of, the premium, if any, and the interest on all bonds at any time issued and
outstanding under the Indenture, according to their tenor and effect, and the
performance and observance by the Company of all the covenants and conditions
herein and therein contained, and of said bonds, has executed and delivered this
First Supplemental Indenture, and hath granted, bargained, sold, aliened,
remised, released, conveyed,
<PAGE> 21
18
assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and
confirmed, and by these presents does grant, bargain, sell, alien, remise,
release, convey, assign, transfer, mortgage, hypothecate, affect, pledge, set
over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee,
and to its successors in the trust, and to its and their assigns forever, all
the following described properties of the Company, that is to say:
All property, real, personal and mixed, tangible and intangible, owned
by the Company on the date of the execution hereof or which may be hereafter
acquired by it (except such property now owned or hereafter acquired as is
expressly excepted from the lien of the Indenture by the terms of the Original
Indenture or this First Supplemental Indenture).
The property covered by the lien of the Indenture shall include
particularly, among other property, without prejudice to the general and
particular descriptions of property contained in the Original Indenture or this
First Supplemental Indenture or to the generality of the language in the
Original Indenture or hereinbefore or hereinafter contained, the following
described property:
I.
THE FOLLOWING DESCRIBED REAL ESTATE, TOGETHER WITH ALL IMPROVEMENTS
THEREON, SITUATED IN THE STATE OF LOUISIANA:
Parcel 1. A certain tract or parcel of land within the
corporate limits of the Town of Slidell, Parish of St. Tammany,
consisting of Lots Twelve (12), Thirteen (13), Fourteen (14), Fifteen
(15), Sixteen (16) and Seventeen (17), the West side of said land being
One Hundred Fifty (150) feet in length and bounded by Harvey Boulevard,
the South side being Three Hundred Thirty-six and three-tenths (336.3)
feet in length and bounded by Florida Street, the East side being One
Hundred Forty-one (141) feet in length and bounded by Fourth Street,
the north side being Three Hundred feet (300) in length and bounded by
Lots Eleven (11) and Eighteen (18) according to the latest plan of said
land being in Square One (1) in the Northeast Quarter (NE 1/4) of
Section Ten (10), Township 9 South, Range Fourteen (14) East.
Parcel 2. A certain tract of land in the Town of Slidell, St. Tammany
Parish; Lots Eighteen (18) and Nineteen (19) in
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Square One (1) of the Brugier Addition to the said Town; each of said lots
measures Forty-seven and three-tenths (47.3) feet on Fourth Street and extends
toward Harvey Boulevard as follows: Lot Eighteen (18) a distance of One Hundred
Forty-nine (149) feet; Lot Nineteen (19) a distance of One Hundred Eighteen
(118) feet; said Square One (1) is bounded on the North by Hall Avenue; on the
South by Florida Avenue, on the East by Fourth Street and on the West by Harvey
Boulevard.
Parcels 1 and 2 being part of the property acquired by Louisiana Public
Utilities Co., Inc., from Slidell Ice & Light Co. by Act passed before L. V.
Cooley, Jr., Notary Public, Parish of St. Tammany, dated October 31, 1925,
registered in the conveyance records of St. Tammany Parish in Book 90, Folio
573.
Parcels 1 and 2 have located thereon an electric generating plant.
Parcel 3. A parcel of land lying and being situated in the Northwest
corner of Section Ten (10) in the Town of Slidell, St. Tammany Parish,
Louisiana, and more fully described as follows, to-wit: From the intersection of
the West boundary line of Section Ten with the Bayou Lacombe Road or road going
to the C. C. C. Camp, go South 400 feet; thence East 115 feet; thence North 400
feet; thence West 115 feet along said Bayou Lacombe Road to the point of
beginning, as described in release by holder of mortgage note in M. 0. B. 63,
folio 367 of the official records of St. Tammany Parish, Louisiana, also being a
part of the same property as acquired by the said Paul W. Rivet from the said
Brugier Realty & Investment Co., Inc., per deed recorded in C. 0. B. 119, folio
393 and M. 0. B. 51, folio 622 by the said corporation from Mrs. Josephine E.
Brugier per deed recorded in C. 0. B. 99 folio 241.
Being the same property acquired by Louisiana Public Utilities Co.,
Inc. from Paul W. Rivet by Act before Gus A. Fritchie, Notary Public for the
Parish of St. Tammany, dated November 21, 1942, recorded in the Conveyance
Records of St. Tammany Parish on December 10, 1942, in Conveyance Book 157, page
341.
There is located on Parcel 3 above described an electric substation.
Parcel 4. A certain piece or parcel of land in the Town of Covington,
St. Tammany Parish, in the John Collins Spanish Grant No. 41, Township 6 South,
Range Eleven (11) East,
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Greensburg District, and being part of what is known as Square No. Five (5) of
that part of the Town of Covington designated as Morgan Commerce and Virtue,
more fully described as commencing at point "A" which is an iron stake set at
the Southwest corner of said Square Five (5) and the intersection of the North
line of Theard Avenue with the East line of Topaz Street, thence North-westerly
along the East line of Topaz Street Two Hundred Two (202) feet Six (6) inches to
point "B"; thence at right angles Easterly One Hundred Seventy-two (172) feet to
a point "C"; thence at right angles Northerly Thirty (30) feet to a point "D";
thence at right angles Easterly One Hundred Twenty-eight (128) feet to a point
"E" on the West line of Ruby Street; thence at right angles Southerly along the
West line of Ruby Street Two Hundred Thirty-two (232) feet Six (6) inches to
point "F" on the North line of Theard Avenue; thence Westerly along the North
line of Theard Avenue Three Hundred (300) feet to "A".
There is located on said Parcel 4 above described an electric plant.
Parcel 5. A certain parcel of ground in the Town of Mandeville, St.
Tammany Parish, designated as Lots Eight (8) and Nine (9) in Square 49, bounded
by Villerie, Girod, Montgomery Streets and Marigny Avenue, which said lots
measure each Forty (40) feet front on Villerie Street by a depth of One Hundred
Forty (140) feet between parallel lines forming the corner of Villerie and Penn
Streets as will more fully appear by reference to subdivision of said Square No.
Forty-nine (49) made by Joseph Pugh C. E. dated March 6, 1909, according to
which plan Penn Street runs through said Square from Villerie to Montgomery
Street.
There is located on said Parcel 5 above described a substation.
Parcels 3, 4 and 5 being part of the property acquired by Louisiana.
Public Utilities Co., Inc., from St. Tammany's Ice and Mfg. Co., Inc., by Act of
Sale dated February 6, 1926, recorded in C.O.B. 92, folio 189 of the records of
St. Tammany Parish.
Parcel 6. A parcel of real estate in the Town of Mandeville, Parish of
St. Tammany, designated as Lots Six (6) and Seven (7) in Square bounded by
Villerie, Girod, Montgomery Streets and Marigny Avenue, which said lots measure
Forty (40)
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21
feet front on Villerie Street by a depth of One Hundred Forty (140) feet between
parallel lines forming the corner of Villerie and Penn Streets as will more
fully appear by reference to a subdivision of said Square Forty-nine (49) made
by Joseph Pugh, C.E. dated March 6, 1909, according to which plan Penn Street
runs through said Square from Villerie to Montgomery Street.
Being the same property acquired by Louisiana Public Utilities Co. Inc.
from Samuel P. Ross by Act before J. Monroe Simmons, Notary Public for the
Parish of St. Tammany, dated August 11, 1927, registered C.B.O. 100, Folio 307
of the records of St. Tammany Parish.
There is located on Parcel 6 above described an old ice plant building.
Parcel 7. All that part of Lot One Hundred Sixty-seven (167) of Square
Forty-two (42) in the Town of Franklinton, Washington Parish, as per plat of
said town on file in the office of the Clerk of Court described as follows:
Beginning at the Southeast corner of said Lot One Hundred Sixty-seven (167)
(which is the southeast corner of Square 42) and runs a northerly course along
the West line of Hancock Street Fifty (50) feet to corner; thence Westerly
parallel with the North side of Mills Street One Hundred (100) feet to corner;
thence South course parallel with West side of Hancock Street Fifty (50) feet to
north side of Mills Street; thence Easterly course along North side of Mills
Street to place of beginning.
Parcel 7 being the same property acquired by Louisiana Public Utilities
Co. Inc., from Franklinton Light & Power Co. Inc. by Act passed before Magee W.
Ott, Notary Public, for the Parish of Washington, dated December 12, 1925, and
registered in the conveyance records of Washington Parish, Book 46, folio 142.
There is located on said Parcel 7 above described an electric plant.
Parcel 8. A certain tract of land within the corporate limits of the
Town of DeRidder, Parish of Beauregard, consisting of the following: Beginning
at a stake in the South line of Section Thirty-three (33), Township Two (2)
South, Range Nine (9) West of the Louisiana Meridian at a point Two Hundred
Eighteen and five-tenths (218.5) feet West of the Southeast corner of said
section; thence West along the South line thereof Two
<PAGE> 25
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Hundred Ninety-five and One-tenth (295.1) feet to the point of intersection of
said section line with the East boundary line of the right-of-way of the Kansas
City Shreveport and Gulf Ry. Co. stake at intersection; thence Northerly along
said right-of-way line and parallel with and Fifty (50) feet from the center
line of the main track of said railway a distance of Two Hundred Ninety-five and
one-tenth (295.1) feet to a stake in the said line for corner; thence East Two
Hundred Ninety-five and one-tenth (295.1) feet to stake for corner; thence South
Three Degrees Fifteen Minutes (3(degree) 15') West Two Hundred Ninety-five and
one tenth (295.1) feet to the beginning and containing Two (2) acres more or
less, var. Six Degrees Thirty Minutes (6(degree) 30') East.
Parcel 8 being the same property acquired by the Louisiana Public
Utilities Co. Inc. from DeRidder Light & Power Plant by act before Ped C. Kay,
Notary Public for the parish of Beauregard dated December 15, 1925, and
registered in the conveyance records of Beauregard Parish, in Book 33, under
entry No. 24668.
There is located on said Parcel 8 above described an electric
sub-station.
Parcel 9. A certain tract of land within the corporate limits of
Leesville, Parish of Vernon, beginning Sixty-six (66) feet North of the
Northwest corner of Block Twenty-three (23) of the new survey of the Town of
Leesville, said point being Three Hundred Thirty-five and one-tenth (335.1) feet
East of the Kansas City Southern Railway Company's right-of-way along the North
line of Mechanic Street of said town and thence running North Six Hundred Nine
(609) feet to a point Twenty-five (25) feet South of spur track connecting the
Kansas City Southern Railway and the Leesville East and West railroad; thence in
a southeasterly direction along the right-of-way of said spur track a distance
of Nine Hundred Fifty and Six-tenths (950.6) feet: thence South One Hundred
Seventy and Five-tenths (170.5) feet; thence West Nine Hundred Thirteen and
Nine-tenths (913.9) feet to the point of beginning, the said tract being in the
Southwest Quarter (SW 1/4) of the Southeast Quarter (SE 1/4) of Section Fourteen
(14), Township Two (2) North, Range Nine (9) West, and containing 8.61 acres
more or less.
Parcel 9 being part of the same property acquired by Louisiana Public
Utilities Co. Inc., from Samuel R. Morgan by Act before W. W. Thompson,
Notary Public of the Parish of Vernon,
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23
dated December 15, 1925, and registered in the conveyance records of Vernon
Parish in Book 72, folio 481.
There is located on Parcel 9 above described an ice plant, water wells,
pump, reservoir, and an electric substation.
Parcel 10. The West One-Half (W1/2) of a four (4) acre lot designated
as the four-acre lot on the Crosby Subdivision as per map of the same as
recorded in Book 3, page 137 of conveyance. records, De Soto Parish, less the
right-of-way of the Kansas City Southern Railroad Company in the Town of
Mansfield.
Parcel 10 being part of the property acquired by Louisiana Public
Utilities Co. Inc. from Mansfield Light & Power Company by act before Inie
Adams, Notary Public for the parish of De Soto, registered in the conveyance
records of De Soto Parish on the 22nd day of August, 1927, under entry #59436.
There is located on said Parcel 10 above described a gas regulator
station and warehouse.
Parcel 11. A certain parcel of real estate in the Town of Franklinton,
Parish of Washington described as: A parcel of land within the corporate limits
of the Town of Franklinton and being in Jesse Day Headright No. 53 Township Two
(2) South, Range Ten (10) East, St. Helena Meridian, described as follows,
to-wit: Commencing at the intersection of the East margin of Lee Street and the
North margin of Carter Street and running South Seven and One-half Degrees (7
1/2(degree)) East along the East margin of Lee Street extended a distance of
Forty (40) feet to a stop, the point of beginning. From said point of beginning
running South Seven and one-half Degrees (7 1/2(degree)) East along the East
margin of Lee Street extended One Hundred (100) feet to a corner; thence at
right angles to the left or North Eighty-two and One-half Degrees (82
1/2(degree)) East Fifty (50) feet to a corner; thence at right angles to the
left or North Seven and One-half Degrees (7 1/2(degree)) West One Hundred (100)
feet to a corner; thence at right angles to the left or South Eighty-two and
One-half (82 1/2(degree)) Degrees West Fifty (50) feet to the place of
beginning, it being understood that the North and South lines of said land shall
be parallel with Carter Street and the East and West lines shall be parallel
with the extension of Lee Street.
Parcel 11 being the same property described in the Deed from Delos R.
Johnston to Louisiana Public Utilities Co., Inc. dated March 7, 1931, recorded
in Book 58 of conveyances, page 3.
There is located on said parcel 11 aforesaid a sub-station.
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Parcel 12. A parcel of ground in the Town of Zwolle, Sabine Parish,
described as a part of Lot One (1) in Block Five (5) in the Town of Zwolle as
per the recorded plan thereof described as: Beginning One Hundred Ten (110) feet
East of the Northwest corner of the above described lot; running thence East
Thirty (30) feet; thence South Twenty-six (26) feet; thence West Thirty (30)
feet; thence North Twenty-six (26) feet to the place of beginning.
Parcel 12 being the same property conveyed in the Deed from M. L.
Corley to Louisiana Public Utilities Co. Inc., dated February 12, 1930, recorded
in Book 49 of Conveyances, folio 397.
There is located on parcel 12 above described a sub-station.
Parcel 13. A parcel of real estate in the Village of Oberlin, Parish of
Allen, described as: Beginning on the North line of Seventh Avenue in said
Village of Oberlin, being also the South line of the Northwest Quarter (NW1/4)
of the Northeast Quarter (NE1/4) of Section Fifteen (15), Township Five (5)
South, Range (4) West of the Louisiana Meridian at a point due North of the West
line of Eighth Street in said Village of Oberlin; thence North on an extension
of said West line of Eighth Street a distance of Forty (40) feet; thence West
Thirty (30) feet; thence South Forty (40) feet to the South line of the
Northwest Quarter (NW1/4) of the Northeast Quarter (NE1/4) of said Section
Fifteen (15) ; thence East along said line thirty (30) feet to the place of
beginning. Being the same property as that described in the Deed from Jonathan
T. Funchess to Louisiana Public Utilities Co. Inc. dated September 27, 1927, by
act recorded in Book 25, at page 310 of the recorder's office of parish of
Allen, Louisiana.
There is located on said Parcel 13 above described a substation.
Parcel 14. The following described property in the Town of Zwolle,
Sabine Parish, described as Lot Seven (7) in Block Fifteen (15) of the Arkansas
Townsite Addition to the Town of Zwolle.
Being the same property as that described in the Deed from Sabine
Lumber Company to Louisiana Public Utilities Co. Inc. dated March 24, 1934,
by act recorded under entry No. 66340 of the recorder's office of the parish of
Sabine, Louisiana.
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25
There is located on said Parcel 14 above described an office building.
Parcel 15. A parcel of land in the Town of Pleasant Hill, Sabine
Parish, described as a parcel in Section Twenty-nine (29), Township Ten (10)
North, Range Eleven (11) west, beginning at the East corner of Main Street of
the T. C. Armstrong property and running North Fifty-five degrees (55(degree))
East One Hundred Forty feet (141'); thence South thirty-five Degrees
(35(degree)) East to the property of Dr. R. L. Armstrong; thence South
Fifty-five degrees (55(degree)) West to the Texas & Pacific Railway Company;
thence North Thirty-five Degrees (35(degree)) West to the Quarter section line
between the South-east Quarter (SE1/4) of the Southeast Quarter (SE1/4) and the
South-west Quarter (SW1/4) of the South-east Quarter (SE1/4) of said Section
Twenty-nine (29); thence North along said Quarter section line to the North line
of East Main Street; thence North Thirty-five Degrees (35(degree)) West along
the North line of East Main Street to the place of beginning, said property
being bounded on the North by the property now or formerly owned by T. C.
Armstrong, on the East by the property now or formerly owned by O. L. Sanders,
on the South by the property now or formerly owned by Dr. R. L. Armstrong and on
the West by the Texas & Pacific Railway Co. right-of-way and Main Street.
Being part of the property conveyed in the deed from Crystal Ice and
Bottle Co. Ltd. to Louisiana Public Utilities Co., Inc. dated March 22, 1927,
recorded in the conveyance records of Sabine Parish in Book 43, folio 132.
There is located on said Parcel 15 above described a substation.
Parcel 16. The following described property in the Town of Lafayette,
Parish of Lafayette, described as a part of the property formerly belonging to
C. Arthur Voorhies North of and adjoining the Voorhies Addition to said City and
is situated within the following metes and bounds: Beginning at a point One
Hundred Fifty (150) feet South Forty-eight Degrees (48(degree)) East of the
Northeast corner of the intersection of La Mar and Stewart Streets, which corner
of La Mar and Stewart Streets is Fifty one and Two-tenths (51.2) feet South
Forty-eight Degrees (48(degree)) East of the outer edge of the cement sidewalk
on the West side
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of La Mar Street and Fifty-five and Four-tenths (55.4) feet South Forty-eight
Degrees (48(degree)) East of the inner edge of the sidewalk and from said point
of beginning running North Forty two degrees (42(degree)) East Twenty (20) feet;
thence South Forty eight Degrees (48(degree)) East Thirty (30) feet; thence
South Forty two Degrees (42(degree)) West Twenty (20) feet; thence North Forty
eight degrees (48(degree)) West a distance of Thirty (30) feet, bounded, North,
East and West by the property now or formerly of C. Arthur Voorhies and South by
Stewart Street.
Being the same property described in the deed from C. Arthur Voorhies
to Louisiana Public Utilities Co., Inc. dated October 28, 1931, recorded in Book
D- 10, folio 396.
There is located on said Parcel 16 above described a regulator system.
Parcel 17. That certain parcel of ground, situated within the corporate
limits of the City of Lafayette, Parish of Lafayette, State of Louisiana, being
part of the parcel of ground acquired by the vendor by Act No. 94497 recorded in
Book L- 9, page 76 of the recorder's office of the pariah of Lafayette, having a
front of one hundred feet (100') on the street dedicated to public use by the
Texas Company by act duly recorded, by a depth in parallel lines of sixty feet
(60'), the southern line of the parcel of ground described herein being parallel
with the southern line of the property of L. Broussard or assigns and Frank
Armand, or assigns, situated north of the property described herein; the
northeastern corner of the parcel of ground described herein being one hundred
ninety two feet (192') south fifty degrees (50(degree)) forty-five minutes (45')
east of the southwest corner of the intersection of said street dedicated by the
Texas Company, as aforesaid, and Lovers' Lane. This parcel of ground is bounded
north by property of L. Broussard, or assigns, and Frank Armand, or assigns,
south and west by property of vendor, and east by said dedicated street.
Being same property acquired by Louisiana Public Utilities Co., Inc.
from Lafayette Compress and Warehouse Company, Inc. under an Act of Sale dated
October 24, 1931, recorded in Conveyance Book No. D 10, page 405, Entry No.
101423.
There is located on Parcel 17 a gas metering station.
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Parcel 18. A parcel of land in the Town of Leesville, Vernon Parish,
described as: Commencing at the Northwest corner of Block Forty-six (46) of the
West Side Addition to the Town of Leesville and running due West Three Hundred
Twenty (320) feet; thence North One Hundred Seventy-five (175) feet; thence East
Three Hundred Fifty (350) feet to the intersection of the West line of Block
Fifty-one (51) of said West Side Addition; thence South along the west line of
said West Side Addition One Hundred Seventy-five (175) feet to the place of
beginning, said land being situated in the Southwest Quarter (SW1/4) of the
Northwest Quarter (NW1/4) of Section Twenty-three (23), Township Two (2) North,
Range Nine (9) West.
Being the same property acquired from P. L. Ferguson by Louisiana
Public Utilities Co. Inc. by deed dated April 9, 1930, recorded in Book 89 of
Conveyances, folio 187. There is located on said Parcel 18 above described a
water standpipe.
Parcel 19. Real estate in the Town of Mansfield, Parish of De Soto,
described as follows: Beginning Two Hundred Twenty-two and Two-tenths (222.2)
feet North from the Southeast corner of Block Thirty-five (35) of the Town of
Mansfield; thence West One Hundred Ninety-eight (198) feet to the place of be-
ginning; thence North Sixty-six (66) feet; thence West One Hundred Ninety-eight
(198) feet; thence South Fifty-five and Nine-tenths (55.9) feet; thence North
Eighty-eight degrees Three minutes (881 31); East One Hundred Fifty-seven and
Five-tenths (157.5) feet; thence South Fifteen (15) feet; thence East Forty and
Five-tenths (40.5) feet to the place of beginning.
Being the same property as that acquired by Louisiana Public Utilities
Co. Inc. from the DeSoto Corporation by Act passed before Helen B. Bennett,
Notary Public, Parish of De Soto, dated October 7, 1940, and registered in the
conveyance records of De Soto Parish in Book 134, folio 492.
There is located on said Parcel 19 above described a cooling tower and
two substations.
Parcel 20. Property in the Town of Mansfield, Parish of De Soto,
described as follows: Block Thirty-six (36) of the Town of Mansfield, being a
lot situated at the corner of Edward and
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Water Streets measuring One Hundred Ninety-eight (198) feet by One
Hundred Thirty-two (132) feet.
Being the same property as that acquired by Louisiana Public Utilities
Co. Inc. from Mrs. Mary Sherman Petty et al by Act before S. E. Colvin, Notary
Public, for the parish of De Soto, dated August 17, 1927, recorded in the
conveyance records of De Soto Parish on August 18, 1927 under entry No. 59407.
There is located on said Parcel 20 above described an electric plant.
Parcel 21. A certain tract of land containing 0.17 of an acre, more or
less, within the corporate limits of the City of Oakdale, Parish of Allen,
described as follows: Beginning at a point 1073 feet east along the center line
of Section 10, Township 3 South Range 3 West, and 208.7 feet north of southwest
corner of SW/4 NW/4, Section 10, Township 3 South, Range 3 West, thence cast for
a distance of 110 feet to the west right of way line of U. S. Highway No. 165,
thence southwesterly along the west right of way line of said highway for a
distance of 103.6 feet, thence northwesterly at right angles to the west right
of way line of U. S. Highway No. 165 for a distance of 75 feet, thence north for
a distance of 65 feet to point of beginning, all of the above being located in
the SW/4 NW/4, Section 10, Township 3, South, Range 3 West, of the Louisiana
Meridian.
There is located on Parcel 21 above described an oil circuit breaker.
Parcel 22. A certain lot of ground situated in the town of Kinder,
Parish of Allen, Louisiana, in that portion thereof known as "Phillips
Addition," and according to the plat of dedication of said addition on file in
the office of the recorders of Allen Parish and Calcasieu Parish, Louisiana, is
known and designated as lot six of block "D" of said addition, which lot fronts
on Eleventh Street, being the same property acquired by Louisiana Public
Utilities Co., Inc.
from W. O. Compton under date of July 21, 1945.
There is located on Parcel 22 above described an electric substation.
Parcel 23. The following described property in the City of Mansfield,
Parish of De Soto, described as:
(a) The South Twelve (12) feet by Sixty-nine and ninety-eight
hundredths (69.98) feet of Lots Seventeen (17), Eighteen
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(18) and Nineteen (19) in Block Fifteen (15) in Crosby Subdivision, Town of
Mansfield.
(b) Beginning on the North side of Welsh Street where said street
intersects the section line between Sections Eight (8) and Nine (9) in
Township Twelve (12) North of Range Thirteen (13) West and running West
along the said street Fifty (50) feet; thence North between parallel lines
to the stream of Bayou Na Bonne Chesse, the said lot being bounded on the
South by the continuation of Welsh Street of the Town of Mansfield and on
the East by the section line dividing Sections Eight (8) and Nine (9) in
said Township and Range, and on the North by the Bayou Na Bonne Cheese and
containing a width of Fifty (50) feet.
(c) Commencing at the intersection of Crosby Street and Polk Street on
the South side of Polk Street and on the East side of Crosby Street and
running thence East along Polk Street Two Hundred Ten (210) feet for a
place of beginning; running thence West Twenty (20) feet; thence South
Twenty (20 feet; thence East Twenty (20) feet; thence North Twenty (20)
feet to the place of beginning.
Being the same property as that described in the Deed from Mansfield
Gas Co. to Louisiana Public Utilities Co., Inc. dated May 19, 1926, recorded in
Book 75 of Conveyances, folio 459. There is located on Parcel 23 above described
a gas regulator station.
Parcel 24. That certain tract or parcel of land lying and being
situated in the Village of Cotton Valley, Webster Parish, Louisiana, described
as follows, to-wit: Beginning at an iron stake at the Northeast corner of the S.
G. Roby Hotel lot, running thence North twelve (12) degrees, forty-five (45)
minutes West, along the West line of the L. & A. Railway right-of-way, two
hundred ten (210) feet, thence West three hundred ninety-seven (397) feet,
thence South twelve (12) degrees, forty-five (45) minutes East two hundred five
(205) feet, thence East four hundred forty-three (443) feet to place of
beginning; and being in the Southwest Quarter (SW1/4) of the Southeast Quarter
(SE1/4) and the Southeast Quarter (SE1/4) of the Southwest Quarter (SW1/4) of
Section Eight (8), Township Twenty-one (21) North, Range Ten (10) West;
Being the same property acquired by Gulf Public Service Company from C.
A. Tooke et al, under two acts of sale of date
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January 13th 1926, of record in Conveyance Book 70, pages 399 and 400, Reg. No.
21531 and 21532, of date January 27th, 1926, Clerk's. Office, Webster Parish,
Louisiana.
There is located on Parcel 24 above described a water works plant and
office building.
Parcel 25. Lots One (1), Two (2) and Three (3), of Block Nine (9), of
Central Park Addition to the Town of Glenmora, Rapides Parish, La.
Being the same property acquired by Gulf Public Service Company from
Glenmora Power Co. Inc., under an act of sale of date December 8th, 1925, of
record in Book 137 of Conveyances, Page 173, Ent. No. 107,893, of date December
18th, 1925.
Parcel 25A. Lots One (1), Two (2) and Three (3), of Block Ten (10), of
Central Park Addition to the Town of Glenmora, Rapides Parish, La.
Being the same property acquired by Gulf Public Service Company from
Dufer J. Milner, under an act of sale of date December 18th, 1926, and of record
in Book 144 of Conveyances, Page 502, Ent. No. 119,254, of date January 28th,
1927, Clerk's Office, Rapides Parish, Louisiana.
There is located on Parcels 25 and 25A above described, an electric
plant.
Parcel 26. A certain lot of ground situated in the Village of Campti,
Natchitoches Parish, La., containing one-half (1/2) an acre, and being bounded
North by Mrs. Saylor, South by property of Gourdon, East by property of Parker
and West by a Street, with a line running East and West, splitting the well and
cistern as the southern boundary line of said property; being the same property
acquired by Gulf Public Service Company from G. E. Atkins, under an Act of sale
of date July 1st, 1927, of record in Book 159 of Conveyances, Page 438, of date
July 1st, 1927, Natchitoches Parish, Louisiana.
There is located on Parcel 26 above described an electric plant.
Parcel 27. That certain tract or parcel of land situated in the Town of
Coushatta, Red River Parish, Louisiana, described as follows:
Beginning at the intersection point of the northerly boundary line of
John C. Perrault Grant and the East boundary line of the right of way of the
Louisiana Railway & Navigation Company, thence run North 80 degrees East along
the line of
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said Perrault Grant One hundred and Six and 1/10 feet to corner marked by an
iron pipe, thence run Southeasterly parallel to the main line of said Railroad
Two Hundred and Twelve (212) feet, thence southwesterly perpendicular to the
main line of said Railroad One Hundred feet to right of way line of said
Railroad, thence northwesterly along said right of way line to point of
beginning, being a portion of the John C. Perrault Grant, See. 37, in Township
12 N. Range Ten W.;
Being the lot acquired by Gulf Public Service Company from C. A. Tooke
et al (together with other property), under act of sale of date June 30th, 1927,
and of record in Conveyance Book 45, Page 167, of date July 1st, 1927, Clerk's
Office, Red River Parish, La.
There is located on Parcel 27 above described an electric plant.
Parcel 28. A triangular shaped tract of land containing 1.68 acres,
situated in the Northeast quarter (NE1/4) of Section nineteen (19), Township
Twelve (12) North, Range ten (10) West, Red River Parish, Louisiana, and being
bounded upon the North by property of J. A. Johnson; upon the East and South by
the Mansfield Highway and upon the West by property of C. P. Steward; the lines
thereof as run out by survey being as follows:
From the intersection of sections Seventeen (17), Eighteen (18),
Nineteen (19), and Twenty (20), in Township Twelve (12) North, Range Ten (10)
West of Red River Parish, Run West along the North line of Section Nineteen (19)
a distance of One Thousand and Seven Feet (1007') to an Iron Pipe, which marks
the point of beginning; thence turn an interior angle of Fifty-six (56) Degrees
and Twenty (20) Minutes and run in a Southwesterly direction along the Mansfield
Road a distance of Five Hundred Sixty-five and Five Tenths (565.5') Feet to an
Iron Pipe; thence turn an interior angle of thirty-three (33) Degrees and Forty
(40) minutes and run North a distance of Four Hundred and Sixty-nine (469') feet
to an Iron Pipe; thence turn an interior angle of Ninety (90) Degrees and No (0)
Minutes and run East a distance of Three Hundred Thirteen (313') Feet to the
point of beginning.
Being property purchased by Gulf Public Service Company from C. W.
Smith, under act of sale executed before
<PAGE> 35
32
Henry W. Bethard, Jr., Notary Public, of date October 10th 1930, of record in
Book 49 of Conveyances, Page 187, Ent. No. 24,127, of date October 24th, 1930,
Clerk's Office, Red River Parish, La.
There is located on Parcel 28 above described a gas booster station.
Parcel 29. That certain lot or parcel of ground, lying and being
situated in the City of Natchitoches, Natchitoches Parish, Louisiana, having a
front of 55' 5" on the North side of Lafayette St. of said City, and running
back 96' between parallel lines, being the same parcel of ground acquired by the
Natchitoches Gas Company, Inc., from James Dey, on February 18th, 1926, as per
deed recorded in Conveyance Book No. 156, Page 53, Ent. No. 56,037, of the
Records of Natchitoches Parish, Louisiana.
There is located on Parcel 29 above described a gas odorizing and
metering station.
Parcel 30. Those three (3) lots or tracts of land, lying and being
situated within the corporate limits of the Town of DeQuincy, Calcasieu Parish,
State of Louisiana, and known and designated as Lots One (1), Two (2) and Three
(3) of Block Eleven (11), of the original Town site of DeQuincy, Louisiana;
Being the same property acquired by Gulf Public Service Company from
the Town of DeQuincy, under authentic act of sale dated January 16th, 1926, of
record in Book 217 of Conveyances, Page 128, Ent. No. 96,833, of date January
19th, 1926, Clerk's Office, Calcasieu Parish, Louisiana.
There is located on Parcel 30 above described an electric and water
works plant.
Parcel 31. That certain tract of land lying and being situated in what
is commonly known as the Fuseher-Lewis Addition to the Town of Eunice, St.
Landry Parish, State of Louisiana, in the SW1/4 of Section 30, T-6-S, R-1 East,
being the West Half of Block No. One Hundred (100), measuring one hundred sixty
five (165) feet on Laurel Avenue by a depth parallel with East Street of Three
hundred (300) feet, bounded North by Vine Avenue, South by Laurel Avenue, East
by a Public Alley, and West by East Street;
<PAGE> 36
33
Being the same property acquired by Gulf Public Service Company from
the Town of Eunice, under an authentic act of sale dated February 13, 1926, of
record in Book M-5 of Conveyances, Page 429, Ent. No. 104,162, of date February
15, 1926, Clerk's Office, St. Landry Parish, Louisiana.
There is located on Parcel 31 above described an electric and water works
plant.
Parcel 32. A certain lot of ground, situated in the Town of Washington,
St. Landry Parish, Louisiana, lying in Section 27, T.5 South, Range 4 East,
bounded North by Water Street, South by Railroad switch, East by Breaux and
Maubolis, formerly Cotton Oil Company, and West by Morgan's Louisiana & Texas R.
R. & S. S. Co.; said lot having a front of one hundred (100') feet on Water St.;
being the same property acquired by the Town of Washington from Mrs. Christina
Bidstrup, widow of Herman L. Bidstrup, by an act of sale executed before J. W.
Bailey, Jr., Notary Public, and of record in Conveyance Book "A" No. 4, Pages
587, 588, of date February 2nd, 1903, Clerk's Office, St. Landry Parish,
Louisiana.
There is located on Parcel 32 above described an electric and water
works plant.
Parcel 33. That certain lot or tract of land lying and being situated
in the Town of Washington, St. Landry Parish, Louisiana, and having a front of
fifteen (15') feet on the, Northeast side of Hill Street of said Town and
running back a depth of Thirty-eight (38') feet between parallel lines, at which
point the said tract widens out to a width of forty-two (42') feet and runs back
from said point a depth of Forty-two (42') feet between parallel lines; being
the tract upon which there is now situated the water tank or reservoir of the
Town of Washington, Louisiana;
Being the same property acquired by the Gulf Public Service Company
from the Town of Washington, Louisiana, under an act of sale of date March 16th,
1927, of record in Book P-5 of Conveyances, Page 70, Ent. No. 109,594, of date
April 6th, 1927.
There is located on Parcel 33 above described a water reservoir.
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34
Parcel 34. That certain block or parcel of ground situated in the South
Crowley Addition to the City of Crowley, Parish of Acadia, State of Louisiana,
and more fully described as being all of Block six (6) of said addition, and
being the property acquired by the City of Crowley, from the Liquidators of the
Crowley State Bank, by act of sale recorded in Conveyance Book 0-3, Page 51,
Ent. No. 60437, of date June 1st, 1922.
There is located on Parcel 34 above described an electric and water
works plant.
Parcel 35. That certain lot or parcel of ground situated in Block 91 of
the City of Crowley, Parish of Acadia, State of Louisiana, and having a front of
5' x 43'6" on the North side of West Hutchinson Avenue of said Town, by a depth
of 37'6" and bounded on the North by Lot No. 3 and on the East by Lot No. 2 of
said Block 91, on the South by West Hutchinson Ave., and on the West by the
remaining portion of Lot One of Block 91 owned by the City of Crowley; being a
part of Lot 1 of Block 91 of the City of Crowley, which was acquired by the City
of Crowley from Wm. W. Duson by an act of sale of record in Book K of
Conveyances, Page 290, Ent. No. 6580, of date January 20th, 1894, Clerk's
office, Acadia Parish, Louisiana.
The above described property being acquired by Gulf Public Service
Company from the City of Crowley, under an act of sale of date July 6th, 1927,
of record in Book F-4 of Conveyances, Folio 111 et seq., Registry No. 84372, of
date July 6th, 1927, Clerk's Office, Acadia Parish, Louisiana.
There is located on Parcel 35 above described a water reservoir.
Parcel 36. A tract of land lying and being situated in the City of
Crowley, Parish of Acadia, State of Louisiana, and being bounded upon the North
and East by property of W. E. Hockaday, on the South by property of Freeland
Bros., and on the West by the State Highway known as the Old Spanish Trail,
which was acquired from W. E. Hockaday for the purpose of and is being used as a
sub-station site by the Gulf Public Service Company.
Being property acquired by Gulf Public Service Company from W. E.
Hockaday by act of purchase dated October 28, 1927 recorded in conveyance book
B-4 at page 455 under entry number 85271 of the records of Acadia Parish,
Louisiana.
<PAGE> 38
35
There is located on Parcel 36 above described an electric substation.
Parcel 37. Those three certain tracts or lots of land, which adjoin
each other, the whole forming an irregular or "L" shaped tract situated within
the corporate limits of the Town of Breaux Bridge, St. Martin Parish, La.
(acquired by Gulf Public Service Company from Louisiana Public Service Co.,
Inc., under act of sale of date December 8th, 1925, of record in Book 100 of
Conveyances, page 546, Ent. No. 46,475, of date December 18th, 1925, Clerk's
Office, St. Martin Parish, Louisiana); and which said three lots are bounded, as
a whole, as follows: On the north by property of Breaux Bridge Bank & Trust
Company, in part, property of Hypolite Rivoire, in part, and by Bridge Street in
part (having a front of approximately one hundred and fifty-six (156) feet on
the South side of Bridge Street), on the east by the Bayou Teche, on the south
by property of Daniel Boudier and on the West by Washington St. in part, and in
part by property of H. Rivoire; and which said three lots were acquired by the
Louisiana Public Service Company, Inc., from Collins Conrad and A. J. Dauterive
under an act of sale of date August 31st, 1925, of record in Book 100 of
Conveyances, page 169, Ent. No. 46251, of date August 31, 1925, Clerk's Office,
St. Martin Parish, Louisiana.
LESS AND EXCEPT the following described property to-wit:
A certain lot or parcel of ground situated in the Town of Breaux
Bridge, St. Martin Parish, Louisiana, and being more particularly described as
follows:
Beginning at an iron pipe at curb of concrete sidewalk on
Washington Street and run north 28 deg. 00' E a distance of 89 feet to
an iron pipe; then run south 21 deg. 45' east a distance of 35 feet to
the property of J. 0. Bourdier; thence run south 27 deg. and 45' west a
distance of 89 feet to the curb of concrete sidewalk on Washington
Street; thence run north 21 deg. and 45' west a distance of 36 feet
along the curb of concrete sidewalk on Washington Street to the point
of beginning.
The said excluded lot being the lot sold to Congregation of St. Francis
of Assisi, by act dated April 6, 1945, recorded in
<PAGE> 39
36
Conveyance Book 77, at Folio 428, under Entry No. 45165 of the records of St.
Martin Parish, Louisiana.
There is located on Parcel 37 above described an office building.
Parcel 38. A certain lot or tract of land situated within the corporate
limits of the Town of Jeanerette, Parish of Iberia, State of Louisiana,
containing 0.257 acre, and measuring 112 feet front on the "Avenue", having a
depth, between parallel lines of 100 feet, bounded on the North by property of
Beaullieu on the South by the "Avenue", on the East partly by property of Walter
E. Landry and partly by property of Milton Landry, and on the West by property
of Beaullieu. Being a portion of that certain tract of land situated in the Town
of Jeanerette, Louisiana, containing and measuring ten acres in superficial area
and bounded as follows: On the North by M. L. & T. R. R., on the South by the
"Avenue", on the East by property of Landry, Morvant and others, and on the West
by property of Frank Beaullieu, Sr. which was acquired by Frank Beaullieu, Sr.,
from the Succession of Narcisse Druilhet, Sr., and recorded in Conveyance Book
95, at folio 69 of the records of Iberia Parish, Louisiana.
Being property acquired by Gulf Public Service Company from Celia
Wattigny, widow of Frank Beaullieu and others, by act of purchase dated August
29th, 1941, recorded in Conveyance Book 148, at folio 305, under Entry No. 60511
of the records of Iberia Parish, Louisiana.
There is located on Parcel 38 above described an electric switching and
substation.
Parcel 39. A certain lot of ground situated within the corporate limits
of the City of New Iberia, Parish of Iberia, State of Louisiana, on the West
side of St. Peter Street, measuring Fifty (50) feet front on said St. Peter
Street, by a depth between parallel lines of One Hundred and fifty (150) feet,
and bounded on the North or above by property of Austin A. Williams, South or
below by that of W. B. Kramer, East or in front by said St. Peter Street, and on
the West or rear by property of Viator or assigns.
Being the property acquired from A. P. Moresi by Gulf Public Service
Company, under an act of sale of date May 17th.
<PAGE> 40
37
1926, of record in Book 107 of Conveyances, page 159, Ent. No. 40,904, of date
May 28th, 1926, Clerk's Office, Iberia Parish, La.
There is located on Parcel 39 above described a meter and transformer
repair plant.
Parcel 40. A certain lot or parcel of ground, situated within the
corporate limits of the City of New Iberia, Iberia Parish, Louisiana, being a
portion of Lot No. 25 of Block 167, and being more particularly described as:
Beginning at a point on the West side of Fulton Street at the southeast
corner of the property of Alice Morris, and running in a southwesterly direction
along the south property line of Alice Morris, a distance of fifty (50') feet;
thence in a northwesterly direction parallel to Fulton Street a distance of
sixty-five (65') feet; thence in a southwesterly direction parallel to the south
property line of Alice Morris, a distance of one hundred fifty (150') feet to
the east side of Main Street; thence in a northwesterly direction along the east
side of Main Street to the south property line of the Gulf Public Service
Company; thence in a northeasterly direction along the south property line of
the Gulf Public Service Company, a distance of two hundred (200') feet to the
west side of Fulton Street; thence in a southeasterly direction along the West
side of Fulton Street to the point of beginning.
Being the property acquired by Gulf Public Service Company from Alice
Morris, formerly the wife of Maryan J. Blair, and now the wife of Alonzo C.
Felton; Clara Blair and Maryan J. Blair, Jr., under an act of sale of date May
9th, 1940; recorded in Conveyance Book 139, Page 169, Ent. No. 57787, of date
May 27th 1940, Clerk's Office, Iberia Parish, Louisiana.
There is located on Parcel 40 above described a vehicle storage
building.
Parcel 41. A certain lot of ground, situated on the East side of Main
Street, in the City of New Iberia, Louisiana, measuring fifty (50) feet front on
said Main Street by a depth of two hundred (200) feet, to Fulton Street, bounded
North by estate of 0. J. Trainor, South by J. Gall or assigns, East by Fulton
Street, and West by Main Street.
There is located on Parcel 41 above described a water works plant.
<PAGE> 41
38
Parcel 42. A certain lot of ground situated within the corporate limits
of the City of New Iberia, Parish of Iberia, State of Louisiana, having a front
on Main Street of sixty-eight (68) feet, with a depth of one hundred and ninety
(190) feet to Fulton Street, and bounded North by property of estate of J. E.
Leitemeyer, deceased (being that above described), South by property of J. Gall,
East by Fulton Street, and West by Main Street.
There is located on Parcel 42 above described a materials warehouse and
water reservoir.
Parcel 43. A certain fractional portion of Lots one and two (1 & 2),
situated in the City limits of the City of New Iberia, Louisiana, each lot
measuring fifty (50) feet front on Fulton Street; Lot No. 1 measuring one
hundred and fourteen (114) feet in depth to lot belonging to the Railroad
Company, heretofore known as the New Orleans, Opelousas & Great Western Railroad
Company on the North side, and Lot No. 2 measuring ninety-eight (98) feet more
or less on the line dividing same with Lot No. 1, to said Railroad Company's
property, and eighty-four (84) feet more or less, on the East side, and being
bounded North by property of Southern Pacific R. R. & S. S. Co., South by Fulton
Street, East by N. I. & N. R. R. Co., and West by S. P. R. R. Co. Parcels number
41, 42 and 43 being the same land and property acquired by Gulf Public Service
Company from the City of New Iberia, under an act of sale dated May 31st, 1926,
of record in Book 107 of Conveyances, Page 166, Ent. No. 40,909, of date June
4th, 1926, Clerk's Office, Iberia Parish, La.
There is located on Parcel 43 above described an electric plant.
Parcel 44. A certain lot or parcel of ground, situated in the Town of
Patterson, Parish of St. Mary, State of Louisiana, measuring forty (40') feet
front on "No Name" Street and having a depth of fifty (50') feet, between
parallel lines, and more particularly described as follows: From a point
situated a distance of 22.5' (measured at right angles) from the center line of
Main Street (United States Highway No. 90) and on the South boundary line of "No
Name" Street run a distance of 233' in a southwesterly direction along the south
side of "No Name" Street to the point of beginning; thence at right angles
<PAGE> 42
39
to "No Name" Street a distance of 50' in a southeasterly direction to a point;
thence parallel with "No Name" Street a distance of 40' in a southwesterly
direction to a point; thence a distance of 50' in a northwesterly direction to a
point on the south side of "No Name" Street; thence a distance of 40' in a
northeasterly direction along the south side of "No Name" Street to the point of
beginning, as shown on plat annexed to, made part of and paraphed for
identification with Ent. No. 70368 of the Conveyance Records of St. Mary Parish,
Louisiana.
Being property acquired by Gulf Public Service Company from V. J.
Roundtree by Act of purchase dated October 12th, 1943, recorded in Conveyance
Book 6-J, at folio 71, under Ent. No. 70368 of the records of St. Mary Parish,
Louisiana.
There is located on Parcel 44 above described an electric substation.
Parcel 45. A certain lot or parcel of ground, situated in the Town of
Baldwin, Parish of St. Mary, State of Louisiana, containing and measuring sixty
(60) feet front on Bollard Street or Bollard Road, having a depth of sixty-six
(66) feet, between parallel lines, the said parcel of ground being the North
sixty (60) feet of Lot #4 of Block M of the official map of the Town of Baldwin,
as shown on a plat annexed to, made part of and paraphed for identification with
Ent. No. 66797 of the Conveyance Records of St. Mary Parish, Louisiana.
Being property acquired by Gulf Public Service Company from Walker
Development Company and others by Act of purchase dated December 28th, 1940,
recorded in Conveyance Book 5-Y at folio 254, under Ent. No. 66797 of the
records of St. Mary Parish, Louisiana.
There is located on Parcel 45 above described an electric substation.
Parcel 46. A certain lot or parcel of ground situated in the Town of
Mamou, Parish of Evangeline, State of Louisiana, measuring fifty (50) feet front
on Fifth Street and having a depth of fifty (50) feet, between parallel lines;
said lot or parcel of ground being the West 50 feet of Lot 13 in Block 86 of the
Town site of Mamou, Evangeline Parish, Louisiana.
Being property acquired by Gulf Public Service Co., Inc. from Avie
Aucoin by act of purchase dated February 26th, 1945,
<PAGE> 43
40
recorded in Conveyance Book B-72 under Entry No. 87,859 of the records of
Evangeline Parish, Louisiana.
There is located on Parcel 46 above described an electric substation.
Parcel 47. That certain tract or parcel of land containing Thirty-five
thousandths (.035) of one (1) acre, more or less, situated in the West Half
(W1/2) of Section Twenty-seven (27), Township Nine (9) South, Range One (1) East
of Louisiana Meridian in Acadia Parish, Louisiana, bounded North and East by
lands owned in indivision by George E. Anding and Willie M. Anding; South by
dredged drainage ditch and West by public gravel road, which said tract or
parcel of land is further described as follows:
Commencing at the point where the West fence line of the Ninety-seven
(97) acre tract of land situated in the West Half (W1/2) of Section Twenty-seven
(27), Township Nine (9) South, Range One (1) East, of Louisiana Meridian in
Acadia Parish, Louisiana, owned by Anding, intersects the North line of the
dredged drainage ditch which runs approximately East and West through said
section; running thence in an Easterly direction along the North line of dredged
ditch a distance of thirty (30) feet; running thence in a Northerly direction
parallel to the West fence line of said Ninety-seven (97) acre tract a distance
of fifty (50) feet; running thence in a Westerly direction parallel to North
line of dredged drainage ditch a distance of thirty (30) feet to fence line;
running thence in a Southerly direction along fence line a distance of fifty
(50) feet to point of beginning.
Being property acquired by Gulf Public Service Co., Inc. from George E.
Anding and Willie E. Anding, by act of purchase dated December 27, 1945,
recorded in Conveyance Book C-8, at Folio 443, under Entry No. 191656 of the
records of Acadia Parish, Louisiana.
There is located on Parcel 47 above described an electric substation.
Parcel 48. That certain tract of land situated in Allen Parish
described as beginning at a point on the west side of the right of way of
Highway 165, where the west side of said right of way intersects the south line
of S/2 of the NE/4 of the SE/4 of Section 21, Township 5 South, Range, 4 West,
Louisiana
<PAGE> 44
41
Meridian, and from said point of beginning run west along the south line of the
said S/2 of NE/4 of SE/4, Section 21, Township 5 South, Range 4 West, a distance
of 40 feet; thence run north a distance of 30 feet, thence run east on a line
parallel with the south line of the above described tract to the highway right
of way of Highway 165; thence run in a southwesterly direction along the west
line of the right of way of Highway 165 to the point of beginning, and being a
part of the same property acquired by Leona Ardoin by deed recorded in
Conveyance Book 55, page 450, of the records of Allen Parish, Louisiana, and
bearing file No. 68635.
Being the same property acquired by Gulf Public Service Co., Inc. from
Leona Ardoin Reeves and William Reeves, under an act of sale of date July 16,
1948, and of record in Conv. Book 71, of date July 19, 1948, Clerk's Office,
Allen Parish, Louisiana.
There is located on Parcel 48 above described an electric substation.
Parcel 49. All that certain portion of ground situated in the Town of
Madisonville, St. Tammany Parish, Louisiana, described as follows:
From the United States Geological Survey Bench Mark Number TT26C at St.
John and Cedar Streets in the town of Madisonville, above said Parish and State,
run north 88 degrees 45 minutes west 1.6 feet, thence south 1 degree 15 minutes
west 947.1 feet to an iron post at the intersection of the east right of way
line of the Cedar Street extension and the south right of way line of the St.
Joseph Street extension, the point of beginning of the property herein conveyed.
From said point of beginning run south 88 degrees 45 minutes east 83.0 feet
along the south right of way of the St. Joseph Street extension to an iron
corner; thence south 1 degree 15 minutes west 123 feet to an iron corner; thence
north 88 degrees 45 minutes west 83.0 feet to an iron corner on the east right
of way of the Cedar Street extension; thence along said right of way north 1
degree 15 minutes east 123 feet to the point of beginning. All as per process
verbal and blue print of survey by Robert A. Berlin, Registered Surveyor.
Being the same property acquired by Gulf Public Service Co., Inc. from
Sidney L. Dittmer, under an act of sale of date
<PAGE> 45
42
September 20, 1947, and of record in Book 180 of conveyances, page 126, of date
October 7, 1947, Clerk's Office, St. Tammany Parish, Louisiana.
There is located on Parcel 49 above described an electric substation.
Parcel 50. The following parcel of ground located in the town of
Madisonville, Parish of St. Tammany, Louisiana, to-wit:
From the corner common to Section 39 and 43, on the right bank of the
Tchefuncte River, thence west 600 feet to a corner on the east side of Main
Street in Madisonville, Louisiana, thence along the east side of Main Street
south 510 feet 6 inches to a corner on the south side of entrance drive to power
plant, to the place of beginning;
Beginning at the above corner thence east 240 feet, thence south 230
feet, thence west 240 feet to a corner on the east side of Main Street, thence
along the east side of said street north 230 feet to the place of beginning and
containing 1.26 acres and is a part of Section 43, T-7-S, R-10-E, Greensburg
District, La.
Being the same property acquired by Gulf Public Service Co., Inc. from
Madisonville Power Company, Inc. under an act of sale of date October 28, 1947,
and of record in Conveyance Book 181, folio 104.
There is located on Parcel 50 above described an old electric plant not
in use.
Parcel 51. A certain lot or parcel of ground, together with all rights,
ways, privileges, servitudes and appurtenances thereunto belonging, situated in
the Northeast Quarter (NE/4) of Sec. 32, T-6-S, R-2-W, in Estes Northern
Addition to the Village of Basile, Parish of Evangeline, State of Louisiana,
containing and measuring fifty-two and five-tenths (52.5') feet front on the
east side of Louisiana State Highway No. 7, having a width in the rear (or along
its eastern line) of fifty (50') feet, and having a depth of fifty (50') feet
along its northern line and a depth of sixty-six (66') feet along its southern
line, the northern line of the lot conveyed hereunder running along and
coinciding with the fence in place on the property of the vendors herein, which
fence projects in an easterly direction from Louisiana State Highway No. 7.
<PAGE> 46
43
Being the same property acquired by Gulf Public Service Co., Inc. from
Mrs. Eddie Hester Estes, et al, under an act of sale of date September 2, 1947,
and of record in Conv. Book B-89, page 496, under entry No. 102557, of date
September 25, 1947, Clerk's Office Evangeline Parish, Louisiana.
There is located on Parcel 51 above described an electric substation.
Parcel 52. A certain lot or parcel of ground, together with all rights,
ways, privileges, servitudes and appurtenances thereunto belonging, situated
within the corporate limits of the Town of Berwick, Parish of St. Mary, State of
Louisiana, located at the intersection of Oregon Street and Sixth Street, having
a frontage of two hundred and fifty (250) feet along the south side of Oregon
Street and a frontage of two hundred and thirty (230) feet along the west side
of Sixth Street (or the continuation thereof), having a depth of one hundred and
sixty-one (161) feet along its west line and a depth of eighty-two (82) feet
along its south line, being shown and depicted in detail on a plat of survey
made by J. C. Thomas, Jr., Surveyor, dated August 6th, 1949, and being the same
property acquired by Gulf Public Service Co., Inc. from Elmo Justilian, et al,
under an Act of Sale dated August 9, 1949, recorded in Conveyance Book 7-J,
under Entry No. 79,461 of the records of St. Mary Parish, Louisiana.
There is located on Parcel 52 above described an electric plant and
substation.
Parcel 53. A certain lot of ground, unimproved, together with all
rights, ways, privileges, servitudes and appurtenances thereunto belonging,
situated within the corporate limits of the City of New Iberia, Parish of
Iberia, State of Louisiana, containing and measuring fifty (50) feet front on
the north side of Darcey Street, having a depth, between parallel lines, of one
hundred and fifty (150) feet, being bounded on the North by property of Perry J.
Burke, or railroad right-of-way, on the South by Darcey Street, on the East by
Lot A of the plat of survey hereinafter referred to, and on the West by Lot C of
said plat (the said Lot C being formerly the property of Perry J. Burke and now
the property of Ben R. Falconer). Being Lot B of a plat of survey of the Perry
J. Burke Subdivision
<PAGE> 47
44
dated September 18th, 1948, made by J. R. Kingston, Jr., Civil Engineer,
recorded in Miscellaneous Book 8, at Folio 223, under Entry No. 2804 of the
records of Iberia Parish, Louisiana, and being the same property acquired by
Gulf Public Service Co., Inc. from Perry J. Burke, under an Act of Sale dated
August 25, 1949, recorded in Conveyance Book 187, under Entry No. 77551 of the
records of Iberia Parish, Louisiana.
There is located on Parcel 53 above described an electric substation.
Parcel 54. A certain lot or parcel of ground together with all rights,
ways, privileges, servitudes and appurtenances thereunto belonging, situated in
the City of Lafayette, Parish of Lafayette, State of Louisiana, measuring twenty
(20) feet front on Argonne Street and having a depth of fifteen (15) feet
between parallel lines, said lot or parcel of ground being the Southwest corner
portion of Lot 6, Blk 2 of the Veazey Addition to the City of Lafayette and
being further identified by plat attached to Entry No. 224437 of the records of
Lafayette Parish.
Being the same property acquired by Gulf Public Service Co., Inc. from
John Mathieu under an Act of Sale dated May 6, 1949, recorded in Conveyance Book
G-18, Page 400, under Entry No. 224437.
There is located on Parcel 54 above described a gas regulator station.
Parcel 55. The following described property situated in the Town of
DeQuincy, Parish of Calcasieu, State of Louisiana, to-wit: Lots Nine (9) and Ten
(10) of the Town of DeQuincy, Louisiana, as per plat recorded in Conveyance Book
43, at page 272 of the records of Calcasieu Parish, Louisiana. Being the same
property acquired by Gulf Public Service Co., Inc., from James J. Abdalla under
an Act of Sale dated June 28th, 1949 recorded on June 28th, 1949, under Entry
No. 432052 of the records of Calcasieu Parish, Louisiana.
There is located on Parcel 55 above described a water well.
Parcel 56. A certain parcel of ground situated in the Callahan
Subdivision of the City of Oakdale, Allen Parish, Louisiana, and being
designated as all of Lot Six (6) and the East twenty (20') feet of Lot One (1)
of said Addition, the
<PAGE> 48
45
parcel herein described measuring ninety (90') feet on Oak Street by a depth,
between parallel lines, of one hundred fifty-five (155') feet, and being bounded
on the North by Jasper & Eastern Railroad right-of-way, South by Lots 2 and 5,
East by Oak Street and West by Lot 1, all of said Subdivision.
Being the same property acquired by Gulf Public Service Co., Inc., from
James C. Callahan under an Act of Sale dated February 13th, 1950, recorded in
Conveyance Book 75, at folio 347, under Entry No. 95747 of the records of Allen
Parish, Louisiana.
There is located on Parcel 56 above described an electric substation
and warehouse.
Parcel 57. A certain piece, parcel or tract of land being a portion of
B. F. Garlington Tract and part of Section 38 and/or Section 32, T 3 N, R 3 E,
Avoyelles Parish, Louisiana, fronting 100 feet on the Center Point Marksville
State Highway, with an area of .24 acres and is more particularly described as
follows, to-wit:
Starting at a point where the western boundary of Section 33, T 3 N, R
3 E, intersects the southwestern boundary of the 60 foot R/W of the Center
Point-Marksville Highway No. 57-D run along the southwestern boundary of said
Highway North 46 degrees 40 minutes West a distance of 780.5 feet to the point
of beginning; thence run along the boundary of said Highway North 46 degrees 40
minutes West a distance of 100 feet; thence run South 29 degrees 35 minutes West
a distance of 120.4 feet and to a point on the property line of Truett Ryan;
thence run along the property line of Truett Ryan South 60 degrees 22 minutes
East a distance of 97.1 feet; thence run North 29 degrees 35 minutes East a
distance of 96.7 feet to the point of beginning; all as is more particularly
shown by plat of survey made by Irion Lafargue, Registered Surveyor, dated June
20, 1951, blue print of which is attached to deed from Benjamin F. Garlington to
Central Louisiana Electric Company, Inc.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Benjamin F. Garlington by act of sale dated July 9, 1951, recorded in
Conveyance Book A-143, page 426, Entry No. 137397, of the records of Avoyelles
Parish, Louisiana.
There is located on Parcel 57 above described an electric substation.
<PAGE> 49
46
Parcel 58. A certain parcel of land containing approximately 0.209
acres of land in Section 35 T2S R2E Evangeline Parish, Louisiana, and further
described as being the strip of land lying between State Highway # 23 on the
south, and Bayou Cocodrie on the north, lying to the west of and bounded on the
east by the strip of land purchased by Central Louisiana Electric Co., Inc.,
from H. H. Hazelton on January 30, 1945, and bounded on the west by section line
between Section 35 and 34 and property belonging to Lewis.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Hugh H. Hazelton by act of sale dated October 16, 1951, recorded in
Conveyance Book No. B-114 under Entry No. 133612, records of Evangeline Parish,
Louisiana.
There is located on Parcel 58 above described a spray header.
Parcel 59. Two certain lots or parcels of ground, unimproved, together
with all rights, ways and privileges thereto belonging or in any way
appertaining, being, lying and situated in the City of Pineville, Rapides
Parish, Louisiana, and being more particularly described as Lots Eight (8) and
Nine (9) of the Marrus Subdivision of Pineville, Louisiana, said two lots having
a combined frontage of 98 feet on Webster Street and extending back therefrom to
the rear or West line of said Marrus Subdivision, bounded on the North by
property now or formerly belonging to the Stephen Barrett Realty Company, on the
South by Lot Seven (7) of said Marrus Subdivision, and in front by Webster
Street; all as is more particularly shown by the official plat of said Marrus
Subdivision recorded in Plat Book 1, page 224 of the records of Rapides Parish,
Louisiana; being that property acquired by Central Louisiana Electric Company,
Inc. from Mrs. Ruth B. Marrus, et al, by acts of sale dated June 7, 1950, and
June 12, 1950, recorded in Conveyance Book 387, pages 627 and 629, records of
Rapides Parish, Louisiana, under Filing Nos. 343529 and 343530.
Parcel 60. A certain piece, parcel or lot of ground, together with all
buildings and improvements thereon, rights, ways, privileges and appurtenances
thereto belonging, lying and being situated in the City of Pineville, Rapides
Parish, Louisiana, and being more particularly described as follows: Begin at a
point on the West side of Main Street in said City of Pineville, running
<PAGE> 50
47
from the traffic bridge on Red River, said point being located at the
intersection of the property line between the properties now or formerly
belonging to Moore and Frank R. Hayden on Main Street, thence run a distance of
80 feet on Main Street away from Red River to the point of beginning of the
property herein described; thence continue along Main Street a distance of 64
feet to the property line of Stephen Barrett; from the line thus established run
back between parallel lines (parallel with the property line of Stephen Barrett)
a distance of 140 feet; said property having a width throughout of 64 feet;
being bounded on one side by the property of Stephen Barrett and on the other
side and in the rear by property of Frank R. Hayden, and in front by Main
Street; acquired by Louisiana Ice & Electric Company, Inc. from Frank C.
Landers, Trustee in Bankruptcy, and Louisiana Ice & Utilities, Inc. by deed
dated January 2, 1935, recorded in Conveyance Book 199, page 273 Filing No.
193663, records of Rapides Parish, Louisiana.
There is located on Parcel 60 above described an office building.
Parcel 61. A certain tract of land, unimproved, together with all
rights, ways, privileges, servitudes and appurtenances thereunto belonging,
situated in the Tenth Ward of the Parish of St. Mary, State of Louisiana,
containing and measuring twenty-eight and ninety-two one-hundredths (28.92)
acres in superficial area, being bounded on the North partly by the right-of-way
of the Southern Pacific Railroad (Morgan's Louisiana & Texas Railroad &
Steamship Company), partly by property of Henry Brown, his heirs or assigns, and
partly by property of the Estate of W. P. Foster, on the South by remainder of
the property of the Estate of Joseph Heinen, on the East partly by property of
the Estate of W. P. Foster and partly by the Charenton Drainage & Navigation
Canal, and on the West partly by remainder of property of the Estate of Joseph
Heinen and partly by property of Henry Brown, his heirs or assigns. Being a
portion of the lands originally acquired by Joseph Heinen, situated in Section
13, Township 14 South, Range 9 East, and being more particularly shown and
depicted on a plat of survey made by T. F. Kramer, Civil Engineer & Surveyor,
dated June 26th, 1951.
<PAGE> 51
48
Parcel 62. Another certain strip or parcel of land, unimproved,
situated between the above described property and the water line of the
Charenton Drainage & Navigation Canal, which strip or parcel of land is
bounded on the North or Northwest by the line indicated on Kramer plat by
the letters I, J, and K, on the South by mean Gulf level water line of the
Charenton Drainage & Navigation Canal, on the East by property of the
Estate of W. P. Foster, and on the West by State Route No. 916, all as
shown on the plat of survey made by T. F. Kramer, Civil Engineer &
Surveyor, dated June 26th, 1951.
This property extends up to the water line of the Charenton Drainage &
Navigation Canal, but the strip of land herein described, paralleling the
Charenton Drainage & Navigation Canal, is subject to an easement granted to
the United States of America in connection with the construction of said
Canal.
Parcels 61 and 62 as above described were acquired by Central Louisiana
Electric Company, Inc., from Josephine Ronkartz Heinen, et al, under an Act
of Sale dated July 31, 1951, recorded in Conveyance Book 7-U, under Entry
No. 82,894, of the records of St. Mary Parish, Louisiana.
The properties herein described as having been acquired by Gulf Public
Service Company, a corporation organized and existing under the laws of the
State of Delaware, were conveyed and transferred unto Gulf Public Service Co.,
Inc., a corporation organized and existing under the laws of the State of
Louisiana, by deed dated November 2, 1944, which deed was filed in the office of
the Recorder of Conveyances of each of the Parishes of the State of Louisiana in
which any of said properties is situated. The properties herein described as
having been acquired by Louisiana Public Utilities Co., Inc. were conveyed and
transferred unto the said Gulf Public Service Co., Inc. by joint agreement of
merger dated October 24, 1946, under which said Louisiana Public Utilities Co.,
Inc. was merged with and into Gulf Public Service Co., Inc., which agreement was
filed and recorded in the office of the Secretary of State of the State of
Louisiana, and copies thereof, certified by said Secretary of State, were filed
for record in the office of the Recorder of Mortgages of Iberia Parish,
Louisiana and in the office of the Recorder of Mortgages of Lafayette Parish,
Louisiana, in which Parishes the registered offices of said Gulf Public Service
Co., Inc. and said Louisiana Public Utilities Co., Inc. were located, and in
<PAGE> 52
49
the Conveyance Records of each Parish in the State of Louisiana in which either
Gulf Public Service Co., Inc. or Louisiana Public Utilities, Inc. had immovable
property. All of the properties herein described as having been acquired, as
aforesaid, by Gulf Public Service Co., Inc. were conveyed and transferred unto
Central Louisiana Electric Company, Inc. by a joint agreement of merger dated as
of October 11, 1951, under which Gulf Public Service Co., Inc. was merged with
and into Central Louisiana Electric Company, Inc., which agreement was filed and
recorded in the office of the Secretary of State of the State of Louisiana, and
copies thereof, certified by the Secretary of State, were filed for record in
the offices of the Recorders of Mortgages of the Parishes of Iberia and Rapides,
Louisiana, wherein the registered offices of said Central Louisiana Electric
Company, Inc. and Gulf Public Service Co., Inc. are located, and in the offices
of the Recorders of Conveyances of all Parishes in the State of Louisiana in
which either Central Louisiana Electric Company, Inc. or Gulf Public Service
Co., Inc. owned immovable property.
II.
THE FOLLOWING OIL, GAS AND MINERAL LEASE TOGETHER WITH ALL IMPROVEMENTS
THEREON, SITUATED IN THE STATE OF LOUISIANA, ACQUIRED BY THE COMPANY FROM GULF
PUBLIC SERVICE CO., INC.:
1. An oil, gas and mineral lease dated November 21, 1928 and
recorded in Book 86, at page 397 of the conveyance records of the
Parish of DeSoto, granted by Joe Rambin, S. A. Rambin, J. N. Rambin, C.
A. Rambin, J. A. Rambin, Mary E. DeSoto, born Rambin, wife of S. L.
DeSoto, residents of DeSoto Parish, Louisiana, and D. J. Rambin,
resident of Arkansas, to Louisiana Public Utilities Co., Inc. in so far
as the same affects ten acres around the gas well situated thereon,
which ten acres are described as follows:
SW/4 of SW/4 of SE/4 Section 13, T-12-N, R-12-W.
2. An oil, gas and mineral lease dated December 16, 1915; executed
by J. W. Parsons and others to R. P. Brooks, and recorded in Book 39,
at page 63 of the conveyance records of DeSoto Parish, Louisiana, and
assigned to Louisiana Public Utilities Co., Inc. in so far as the same
affects ten aces, with the well situated thereon, which ten acres are
described as follows:
<PAGE> 53
50
Northeast Quarter of Northeast Quarter of Northwest Quarter,
Section 15, T-12-N, R-12-W.
3. An oil, gas and mineral lease granted by Samuel Dreyfuss and
others to R. P. Brooks, dated March 30, 1921 and recorded in Book 55,
at page 573, of the conveyance records of the parish of DeSoto,
Louisiana, and assigned to Louisiana Public Utilities Co., Inc., in so
far as the same affects ten acres, with the well situated thereon,
which ten acres are described as follows:
Northeast Quarter of Northwest Quarter of Northeast Quarter,
Section 15, T-12-N, R-12- W, but limited to the Nacatosh sand.
4. An oil, gas and mineral lease dated June 20, 1914 and recorded
in Book 36, at page 160 granted by Natalie Oil Company to Mansfield Gas
Company and assigned to Louisiana Public Utilities Co., Inc., and
bearing upon and affecting
Three acres of land in a square in the Northwest corner of
the West Half of the Northeast Quarter of Northeast Quarter of
Section 23, T-12-N, R-12-W, DeSoto Parish, La.
5. An oil, gas and mineral lease granted by Mrs. Bessie Ferguson
Taylor, unto the W. T. Coleman Oil and Gas Co., Inc., of date November
12, 1936, as recorded in Book 120, page 119 of the Conveyance Records
of De Soto Parish, Louisiana, covering and affecting the following
described lands:
The E 1/3 of NE 1/4 of SW 1/4 and the W 1/3 of the NW 1/4 of
SE 1/4 of Section 18, T. 12 N., R. 11 W., containing 262/3 acres,
more or less, and including the shallow Nacatosh sand gas well
thereon, together with all material, supplies and lines belonging
to this well and lease.
6. An oil, gas and mineral lease granted by E. F. Ferguson, et al,
unto W. T. Coleman (and assigned by W. T. Coleman unto the W. T.
Coleman Oil and Gas Co., Inc.) of date May 9, 1935, as recorded in Book
106, page 523 of the Conveyance Records of De Soto Parish, Louisiana,
in so far as the same may affect and apply to the following described
lands:
The south 2/3 of the SW 1/4 of SW 1/4 of Section 18, T. 12
N., R. 11 W., containing 262/3 acres, more or less, and
<PAGE> 54
51
including the shallow Nacatosh sand gas well thereon, together
with all material, supplies and lines belonging to this well and
lease.
7. An oil, gas and mineral lease granted by E. E. Walker unto W.
T. Coleman (and assigned by W. T. Coleman to the W. T. Coleman Oil and
Gas Co., Inc.) of date March 23, 1935, as recorded in Book 108, page
113 of the Conveyance Records of De Soto Parish, Louisiana, covering
and affecting the following described lands:
The SE 1/4 of SW 1/4 of Section 18, T. 12 N., R. 11 W.,
containing 40 acres, more or less, and including the shallow
Nacatosh sand gas well thereon, together with all material,
supplies and lines belonging to this well and lease.
8. An oil, gas and mineral lease granted by W. B. Hill, et al,
unto W. T. Coleman Oil and Gas Co., Inc. of date January 23, 1935, as
recorded in the Conveyance Records of De Soto Parish, Louisiana, in
Book 107, page 489, only in so far as the same may affect and apply to
the following described lands:
The NW 1/4 of NE 1/4 of Section 19, T. 12 N., R. 11 W.,
containing 40 acres, more or less, and including the shallow
Nacatosh sand gas well thereon, together with all material,
supplies and lines belonging to this well and lease.
9. An oil, gas and mineral lease granted by W. M. Pollock, et al,
unto W. K. Williams of date August 26, 1940, as recorded in Book 134 at
page 370 of the Conveyance Records of De Soto Parish, Louisiana,
covering and affecting the following described lands:
E 1/2 of NE 1/4 of Section 19, T. 12 N., R. 11 W., containing
80 acres, more or less, and including the two producing gas wells
thereon and sometimes referred to as Scott No. 1 and Scott No. 2.
And with each of said leases all the gas wells and all buildings,
constructions and improvements and all gathering lines, meters,
regulators and all other equipment placed and erected or to be placed
and erected thereon; provided, however, that should any or all of said
leases terminate, under any of the terms
<PAGE> 55
52
thereof, then the leasehold subject hereto shall revert to the lessors,
respectively, free and dear of the lien of the Indenture.
III.
FRANCHISES.
All and singular the franchises, grants, immunities, privileges
and rights of the Company owned and held by it at the date of the
execution hereof or which may hereafter be granted, issued or executed
to it, for the construction, maintenance and operation of electric
light and power plants and systems, gas distributing systems, and water
works systems, as well as all franchises, grants, immunities,
privileges and rights of the Company used or useful in operation of the
property mortgaged hereunder, including all and singular the
franchises, grants, immunities, privileges and rights of the Company
granted by the governing authorities of the cities, towns and parishes
enumerated in the schedule below and by all other municipalities or
political subdivisions, and all renewals, extensions and modifications
of said franchises, grants~ immunities, privileges and rights or any of
them, including the following (except item 48 below) acquired by the
Company from Gulf Public Service Co., Inc.:
A. Those certain franchises granted by the governing bodies of the
following named cities, towns and villages in the State of Louisiana,
to wit:
1. Electric franchise granted by the City of Abita Springs to
Louisiana Public Utilities Co. Inc., by ordinance enacted March 6,
1945, for a term of 25 years.
2. Electric franchise granted by the City of Covington to
Louisiana Public Utilities Co., Inc., by ordinance enacted May 7, 1946,
for a term of 25 years.
3. Electric franchise granted by the City of DeRidder to Louisiana
Public Utilities Co., Inc. by ordinance enacted April 28, 1941, for a
term of 25 years.
4. Electric franchise granted by the Town of Franklinton to
Louisiana Public Utilities Co., Inc., by ordinance enacted June 20,
1946, for a term of 25 years.
<PAGE> 56
53
5. Electric franchise granted by the Town of Grand Cane to Gulf
Public Service Co., Inc., by ordinance enacted October 3rd, 1949, for a
term of 25 years.
6. Electric franchise granted by the Town of Kinder to Louisiana
Public Utilities Co., Inc., by ordinance enacted June 4, 1946, for a
term of 25 years.
7. Electric franchise granted by the City of Leesville to
Louisiana Public Utilities Co., Inc., by ordinance enacted October 2,
1945, for a term of 25 years.
8. Electric franchise granted by the Town of Mandeville to
Louisiana Public Utilities Co., Inc., by ordinance enacted June 11,
1946, for a term of 25 years.
9. Electric franchise granted by the Town of Many to Louisiana
Public Utilities Co., Inc., by ordinance enacted April 9, 1946, for a
term of 25 years.
10. Gas franchise granted by the Town of Mansfield to Louisiana
Public Utilities Co., Inc., by ordinance enacted August 28, 1937, for a
term of 25 years.
11. Electric franchise granted by the Town of Noble to Gulf Public
Service Co., Inc., by ordinance enacted December 13th, 1949, for a term
of 25 years.
12. Electric franchise granted by the City of Oakdale to Louisiana
Public Utilities Co., Inc., by ordinance enacted March 4, 1942, for a
term of 25 years.
13. Electric franchise granted by the Village of Oberlin to
Louisiana Public Utilities Co., Inc., by ordinance enacted May 7, 1946,
for a term of 25 years.
14. Electric franchise granted by the Village of Pearl River. to
Louisiana Public Utilities Co., Inc., by ordinance enacted October 16,
1935, for a term of 25 years.
15. Electric franchise granted by the Town of Slidell to Louisiana
Public Utilities Co., Inc., by ordinance enacted January 2, 1945, for a
term of 25 years.
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54
16. Electric franchise granted by the Village of South Mansfield
to Louisiana Public Utilities Co., Inc., by ordinance enacted December
9, 1941, for a term of 25 years.
17. Gas franchise granted by the Village of South Mansfield to
Louisiana Public Utilities Co., Inc., by ordinance enacted November 2,
1937, for a term of 25 years.
18. Water franchise granted by the City of Leesville to Louisiana
Public Utilities Co., Inc., by ordinance enacted October 2, 1945, f or
a term of 25 years.
19. Electric and water franchise granted by the City of New Iberia
to Gulf Public Service Co., Inc., by ordinance dated April 19th, 1949,
for a term of 25 years.
20. Gas franchise granted by the City of Natchitoches to Gulf
Public Service Co., Inc., by ordinance dated October 11th, 1950, for a
term of 25 years.
21. Electric and water franchise granted by the Town of DeQuincy
to Gulf Public Service Co., Inc., by ordinance dated July 6th, 1949,
for a term of 25 years.
22. Electric franchise granted by the Town of Breaux Bridge to
Gulf Public Service Company by ordinance dated December 3, 1929, f or a
term of 25 years.
23. Electric franchise granted by the Town of Glenmora to Gulf
Public Service Company by ordinance dated February 25, 1944,. for a
term of 17 years.
24. Electric franchise granted by the Town of Coushatta to Gulf
Public Service Company by ordinance dated November 3, 1922, for a term
of 49 years.
25. Gas franchise granted by the Town of Coushatta to Gulf Public
Service Company by ordinance dated July 14, 1942, for a term of 25
years.
26. Electric and water franchise granted by the Town of Washington
to Gulf Public Service Company by ordinance dated March 16, 1927, for a
term of 25 years.
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55
27. Water franchise granted by the Town of Cotton Valley to Gulf
Public Service Company by ordinance dated October 5, 1944, f or a term
of 25 years.
28. Electric franchise granted by Town of Madisonville, to
Madisonville Industries, Inc., by Ordinance enacted October 7, 1930, as
amended by Ordinance enacted May 2, 1944, said franchise as amended
being for a term expiring October 7, 1968.
29. Electric franchise granted by the Town of Converse to Gulf
Public Service Co., Inc., by Ordinance enacted November 12, 1948, for a
term of 25 years.
30. Gas franchise granted by the City of Lafayette to Gulf Public
Service Co., Inc., by Ordinance enacted October 19, 1948, for a term of
25 years.
31. Electric franchise granted by the Town of Mansfield, to Gulf
Public Service Co., Inc. by Ordinance enacted January 27, 1948, for a
term of 25 years.
32. Electric franchise granted by the Town of Merryville to Gulf
Public Service Co., Inc. by Ordinance enacted February 11, 1947, for a
term of 25 years.
33. Electric franchise granted by the Town of Pleasant Hill to
Gulf Public Service Co., Inc., by Ordinance enacted March 2, 1948, for
a term of 25 years.
34. Electric franchise granted by the Town of Zwolle, to Gulf
Public Service Co., Inc. by Ordinance enacted February 4, 1947, for a
term of 25 years.
35. Electric franchise granted by the City of Crowley to Gulf
Public Service Co., Inc. by Ordinance enacted December 9, 1947, for a
term of 25 years.
36. Water franchise granted by the City of Crowley to Gulf Public
Service Co., Inc., by Ordinance enacted December 9, 1947, for a term of
25 years.
37. Electric franchise granted by the City of Eunice, to Gulf
Public Service Co., Inc., by Ordinance enacted April 6, 1948, for a
term of 25 years.
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56
38. Water franchise granted by the City of Eunice, to Gulf Public
Service Co., Inc., by Ordinance enacted April 6, 1948, for a term of 25
years.
39. Electric franchise granted by the City of Jeanerette, to Gulf
Public Service Co., Inc., by Ordinance enacted January 9, 1947, for a
term of 25 years.
40. Electric franchise granted by the Town of Berwick, to Gulf
Public Service Co., Inc., by Ordinance enacted May 4, 1948, for a term
of 25 years.
41. Electric franchise granted by Town of Patterson, to Gulf
Public Service Co., Inc., by Ordinance enacted November 4, 1947, for a
term of 25 years.
42. Electric franchise granted by Town of Mamou, to Gulf Public
Service Co., Inc., by Ordinance enacted September 2, 1947, for a term
of 25 years.
43. Electric franchise granted by the Town of Basile, to Gulf
Public Service Co., Inc., by Ordinance dated July 1, 1947, for a term
of 25 years.
44. Electric franchise granted by the Village of Campti, to Gulf
Public Service Co., Inc., by Ordinance enacted May 24, 1947 for a term
of 25 years.
45. Gas franchise granted by the Village of Campti, to Gulf Public
Service Co., Inc., by Ordinance enacted May 24, 1947, for a term of 25
years.
46. Electric franchise granted by the Village of Loreauville, to
Gulf Public Service Co., Inc., by Ordinance enacted December 19, 1947,
for a term of 25 years.
47. Electric franchise granted by the Town of Baldwin, to Gulf
Public Service Co., Inc., by Ordinance enacted November 26, 1947, for a
term of 25 years.
48. Electric franchise granted by the City of Pineville to Central
Louisiana Electric Company, Inc., by Ordinance enacted November 11,
1950, for a term of 15 years, beginning March 18, 1955.
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57
B. Those certain franchises granted by the following named
Parishes in the State of Louisiana, to wit:
1. Electric franchise granted by Allen Parish to Louisiana Public
Utilities Co., Inc., by ordinance enacted August 9, 1945, for a term of
25 years.
2. Electric franchise granted by Beauregard Parish to Louisiana
Public Utilities Co., Inc., by ordinance enacted August 14, 1945, for a
term of 25 years.
3. Electric franchise granted by DeSoto Parish to Louisiana Public
Utilities Co., Inc., by ordinance enacted December 5, 1928, for a term
of 25 years.
4. Gas franchise granted by DeSoto Parish to Louisiana Public
Utilities Co., Inc., by ordinance enacted November 12, 1945, for a term
of 25 years.
5. Gas franchise granted by Lafayette Parish to Gulf Public
Service Co., Inc., by ordinance enacted April 14th, 1949, for a term of
25 years.
6. Electric franchise granted by Sabine Parish to the Crystal Ice
& Bottling Company, Ltd., by ordinance enacted January 17, 1927, for an
indefinite term.
7. Electric franchise granted by St. Tammany Parish to Louisiana
Public Utilities Co., Inc., by ordinance enacted March 11, 1930, for a
term of 25 years.
8. Electric franchise granted by St. Tammany Parish to
Madisonville Industries, Inc., under ordinance enacted February 14th,
1939, for a term of 25 years.
9. Electric franchise granted by Vernon Parish to Louisiana Public
Utilities Co., Inc., by ordinance enacted August 6, 1945, for a term of
25 years.
10. Electric franchise granted by Washington Parish to Louisiana
Public Utilities Co., Inc., by ordinance enacted August 8, 1945, for a
term of 25 years.
11. Electric franchise granted by Evangeline Parish to Louisiana
Public Utilities Co. Inc., by ordinance enacted May 14th, 1945, for a
term of twenty-five (25) years.
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58
12. Electric franchise granted by Rapides Parish to Gulf Public
Service Company by ordinance dated November 10th, 1931, for a term of
25 years.
13. Electric franchise granted by Natchitoches Parish to Gulf
Public Service Co., Inc., under ordinance enacted March 29, 1951, for a
term of 25 years.
14. Electric franchise granted by Red River Parish to Gulf Public
Service Co., Inc., under ordinance enacted March 16th, 1951, for a term
of 25 years.
15. Gas franchise granted by Natchitoches Parish to Gulf Public
Service Company by ordinance dated July 10th, 1940, for a term of 25
years.
16. Gas franchise granted by Red River Parish to Gulf Public
Service Company by ordinance dated July 10th, 1940, for a term of 25
years.
17. Electric franchise granted by St. Landry Parish to Gulf Public
Service Co., Inc., by ordinance dated September 27th, 1949, for a term
of 25 years.
18. Electric franchise granted by Acadia Parish to Gulf Public
Service Co., Inc., by ordinance dated May 10th, 1951, for a term of 25
years.
19. Electric franchise granted by Evangeline Parish to Gulf Public
Service Co., Inc., by ordinance dated May 14th, 1945, for a term of 25
years.
20. Electric franchise granted by St. Mary Parish to Gulf Public
Service Company by ordinance dated February 8th, 1933 for a term of 25
years.
21. Electric franchise granted by Iberia Parish to Gulf Public
Service Co., Inc., by ordinance dated November 17th, 1949, for a term
of 25 years.
22. Electric franchise granted by St. Martin Parish to Gulf Public
Service Co., Inc., by ordinance dated September 21st, 1949, for a term
of 25 years.
23. That certain Electric franchise granted by Calcasieu Parish to
Gulf Public Service Company by Ordinance dated June 1, 1937, for a term
of 25 years, such franchise being limited to territory within Ward 6 of
said parish.
<PAGE> 62
59
IV.
ELECTRIC TRANSMISSION SYSTEMS.
All electric transmission lines of the Company owned by it at the date
of the execution hereof or which may be hereafter acquired or constructed by it,
including towers, poles, pole lines, wires, switch racks, switch boards,
insulators and other appliances and equipment, and all other property of the
Company forming a part thereof or pertaining thereto, and all service lines
extending therefrom, together with all the Company's real property, rights of
way, easements, permits, privileges, franchises and rights over or relating to
the construction, maintenance or operation thereof, through, over, under, or
upon any private property or in the public streets or highways within, as well
as without, the corporate limits of any municipal corporation, including,
without limiting the generality of the foregoing, the following which were
acquired by the Company from Gulf Public Service Co., Inc.:
(a) Commencing at the generating plant of the Company in the City
of Mansfield, De Soto Parish, thence with a 13.2 K.V. 3 phase line,
connecting the Cities of Benson, Converse, Noble, Zwolle and Many with
connecting line to Mitchell and Pleasant Hill.
(b) A 6.6 K.V. single phase line connecting with the 13.2 K.V.
line of the Company in the City of Pleasant Hill, thence connecting the
towns of Pelican and Oxford.
(c) Commencing at the Company's substation, in the City of De
Ridder, Beauregard Parish, thence with a 33 K.V. 3 phase line
connecting the towns of Rosepine and Leesville, and commencing at said
substation, thence with a 33 K.V. 3 phase line connecting the City of
Merryville.
(d) Commencing at the metering station of Gulf States Utilities
Company in the City of Kinder, Allen Parish, thence with a 33 K.V. 3
phase line connecting the City of Oberlin.
(e) Commencing at the metering station from Hillyer, Deutsch
Edwards, Inc., in the City of Oakdale, Allen Parish, thence with a 33
K.V. line connecting the town of Oberlin (said line not being energized
at the present time).
(f) Commencing at the city limits of Franklinton, Washington
Parish, from Franklinton distribution system, thence with a
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6.6 K.V. single phase line north and west, connecting Clifton and Mt.
Hermon. A 6.6 K.V. single phase line commencing at said distribution
system running south and east connecting Enon.
(g) Commencing at the metering station from Louisiana Power &
Light Company near Franklinton, thence with a 33 K.V. 3 phase line
connecting the Cities of Covington, Abita Springs, Mandeville, Lacombe,
Bonfouca and Slidell.
(h) A 6.6 K.V. single phase line connecting with the distribution
system of the Company in Slidell and connecting the Town of Pearl
River.
(i) A 4.6 K.V. 3 phase line connecting Covington and Mandeville.
(j) A 2.3 K.V. single phase line connecting Lewisburg and
Mandeville. (k) Commencing at the generating plant of the Company in
the City of Mansfield, De Soto Parish, thence with a 13.2 K.V. three
phase line through the City of Grand Cane and to the City of
Longstreet, with branch lines to Kickapoo, Keatchie, and Gloster.
(l) Commencing at the generating plant of the Company in the City
of New Iberia, Iberia Parish, thence with a 33 K.V. 3 phase line
connecting the communities of Olivier, Jeanerette, Baldwin, Garden
City, Centerville, Patterson, and Berwick.
(m) Commencing at the generating plant of the Company in the City
of New Iberia, Iberia Parish, thence with a 33 K.V. 3 phase line
connecting the Town of Jeanerette.
(n) A 6.6 K.V. line, 3 phase, connecting with the 33 KY. line of
the Company at Olivier, Iberia Parish, thence connecting the Town of
Loreauville, Iberia Parish, Louisiana.
(o) Commencing at the generating plant of the Company in the City
of Crowley, Acadia Parish, thence with a 33 K.V. 3 phase line
connecting Roberts Cove, Acadia Parish, and Eunice, St. Landry Parish,
Louisiana.
(p) Commencing at the generating plant of the Company in the City
of Eunice, St. Landry Parish, a 33 K.V. 3 phase line, thence to Mamou,
Evangeline Parish.
(q) Commencing at the generating plant of the Company in the City
of Eunice, St. Landry Parish, a 33 K.V. 3 phase line, thence to Basile,
Evangeline Parish.
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61
V.
ELECTRIC DISTRIBUTION SYSTEMS.
All electric distribution systems of the Company owned by it at the
date of the execution hereof or which may be hereafter acquired or constructed
by it, including substations, transformers, switchboards, towers, poles, wires,
insulators, subways, franchises, manholes, cables, appliances, equipment and all
other property of the Company, real or personal, forming a part of or pertaining
to or used, occupied or enjoyed in connection with such distribution systems, or
any of them, together with the Company's rights in or relating to the
construction, maintenance or operation thereof, through, over, under, or upon
any private property or any public streets or highways, within as well as
without corporate limits of any municipal corporation, including the following
which were acquired by the Company from Gulf Public Service Co., Inc.:
The overhead electric distribution systems located at, near and in the
vicinity of the following enumerated cities, towns, villages and communities and
in rural areas adjacent thereto, to wit:
Name of City, Name of City,
Town, Village or Town, Village or
Community Name of Parish Community Name of Parish
- ------------ -------------- ---------------- --------------
Abita Springs St. Tammany Franklinton Washington
Baldwin St. Mary Glenmora Rapides
Basile Evangeline Garden City St. Mary
Benson De Soto Gloster De Soto
Berwick St. Mary Grand Cane De Soto
Bonfouca St. Tammany Jeanerette Iberia
BreauxSt. Martin Keatchie De Soto
Campti Natchitoches Kickapoo De Soto
Centerville St. Mary Kinder Allen
Clifton Washington Lacombe St. Tammany
Converse Sabine Leesville Vernon
Coushatta Red River Lewisburg St. Tammany
Covington St. Tammany Loreauville Iberia
Crowley Acadia Ludington Beauregard
DeQuincy Calcasieu Madisonville St. Tammany
De Ridder Beauregard Mamou Evangeline
Enon Washington Mandeville St. Tammany
Eunice St. Landry Mansfield De Soto
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Name of City, Name of City,
Town, Village or Town, Village or
Community Name of Parish Community Name of Parish
- ------------ -------------- ---------------- --------------
Many Sabine Patterson St. Mary
Merryville Beauregard Pearl River St. Tammany
Mitchell Sabine Pelican De Soto
Mt. Hermon Washington Pleasant Hill Sabine
New Iberia Iberia Rosepine Vernon
Noble Sabine Slidell St. Tammany
Oakdale Allen South Mansfield De Soto
Oberlin Allen Washington St. Landry
Oxford De Soto Zwolle Sabine
VI.
GAS TRANSMISSION SYSTEMS.
All of the gas transmission systems of the Company owned by it on the
date of the execution hereof or which may be hereafter acquired or constructed
by it, including all mains, regulators, meters, buildings, structures and all
equipment, appliances, appurtenances and sites forming a part of such
transmission systems, or any of them, or occupied, enjoyed and used in
connection therewith, including the following which were acquired from Gulf
Public Service Co., Inc.:
1. The gas transmission pipeline of the Company in the Naborton
Field in De Soto Parish, described as commencing with gathering lines
from wells in Section 24, Township 12 North, Range 12 West, thence with
two 4 inch pipes, in a northwesterly direction across Section 24,
Section 23 and into Section 22 where said two 4 inch pipes connect with
an 8 inch pipe, said 8 inch pipe continuing in a northwesterly
direction across Sections 22, 21, 16, 17 and 18 in Township 12 North,
Range 12 West, and thence across Section 13 and part of Section 14 to
the dividing line between Sections 11 and 14 then due west on said
dividing line and continuing along dividing line of Sections 10 and 15
to the city limits and continuing along Gibbs Street to the City Gate
Regulator Station in the city limits of Mansfield, Sections 13, 11, 14,
10 and 15 being situated in Township 12 North, Range 13 West.
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63
2. The gas transmission pipe line of the Company which connects
with other lines of the Company at a point in Section 16, Township 12
North, Range 13 West, De Soto Parish, Louisiana, and extends in a
southerly direction a distance of approximately 1 1/4 miles to a point
of connection with the pipe line of Apex Gas Co., Inc., in Section 21,
Township 12 North, Range 13 West, said gas transmission pipe line being
located wholly within said Sections 16 and 21.
3. The Natchitoches Parish and Red River Parish gas transmission
systems consisting of:
(a) Pipe line from Wemple Station in Red River Parish to City
of Natchitoches in Natchitoches Parish;
(b) Pipe line from Wemple Station-Natchitoches pipe line to
Campti, Natchitoches Parish; and
(c) Pipe line from Armistead to Coushatta, Red River Parish.
VII.
GAS DISTRIBUTION SYSTEMS
All of the gas distribution systems of the Company owned by it on the
date of the execution hereof or which may be hereafter acquired or constructed
by it, including all mains, regulators, services, meters, buildings, structures
and all equipment, appliances, appurtenances and sites forming a part of such
distribution systems, or any of them or occupied, enjoyed and used in connection
therewith, including the following which were acquired by the Company from Gulf
Public Service Co., Inc.:
1. Gas distribution system of the Company at Mansfield and South
Mansfield in the Parish of De Soto and at Lafayette in the Parish of
Lafayette.
2. The gas distribution system of the Company in the City of
Natchitoches, Natchitoches Parish, Louisiana.
3. The gas distribution system of the Company in the Village of
Campti, Natchitoches Parish, Louisiana.
4. The gas distribution system of the Company in the Town of
Coushatta, Red River Parish, Louisiana.
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64
5. The gas distribution systems of the Company supplying gas
service to the unincorporated communities of Armistead, Hanna and Lake
End in Red River Parish, and Timon and Powhattan in Natchitoches
Parish.
VIII.
WATERWORKS PLANTS AND DISTRIBUTION SYSTEMS.
The waterworks plants and water distribution systems of the Company
owned by it at the date of the execution hereof or which may be hereafter
acquired or constructed by it, together with the buildings, structures,
erections, pumps, pump machinery, reservoirs, filters, filter-galleries,
chlorinating equipment, tanks, wells, water rights, water supplies, water mains,
hydrants, pipe lines, service pipes, meters, plant pipes, engines, boilers,
appurtenances, appliances, facilities, machinery, equipment, fixtures and all
other property used or provided for use in construction, maintenance, repair
and/or operation thereof, both now owned and which may hereafter be acquired by
the Company, including the waterworks plants and distribution systems which were
acquired by the Company from Gulf Public Service Co., Inc., at (a) Leesville in
Vernon Parish, (b) Cotton Valley in Webster Parish, (c) Washington in St. Landry
Parish, (d) Eunice in St. Landry Parish, (e) DeQuincy in Calcasieu Parish, (f)
Crowley in Acadia Parish, and (g) New Iberia in Iberia Parish.
IX.
All real estate or interests therein, now owned or which may be
hereafter acquired by the Company for use or which may be used by it in
connection with its business as an electric, gas and water company, together
with all of the right, title, and interest of the Company, now owned or
hereafter acquired in and to any and all works, plants, buildings, structures,
erections, and constructions now or hereafter placed upon any of the real estate
mentioned, described or referred to as being subject to the lien of the
Indenture, with the fixtures, tenements, hereditaments, and appurtenances
thereunto appertaining or belonging.
<PAGE> 68
65
X.
THE FOLLOWING DESCRIBED PROPERTY, WHEREVER SITUATE:
First: The electric generating plants and electric transmission and/or
distribution systems now or hereafter owned by the Company, and any electric
generating plants and electric transmission and/or distribution systems
hereafter constructed or acquired by the Company, and any additions to or
extensions of any such existing or future electric generating plants and/or
electric transmission and/or distribution systems, together with all engines,
dynamos, motors, generators, boilers, turbines, pole lines, poles, wires,
cross-arms, insulators, transformers, meters, buildings, erections, structures,
stations, substations, power houses, power producing and power transmitting
equipment, water, water rights, water wheels, headworks, race-ways, hydraulic
works, hydro-electric plants, cables, conduits, instruments, apparatus,
appliances, machinery, facilities, fixtures and all other property used or
provided for use in the construction, repair, maintenance and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also with all the rights, privileges, franchises,
easements, licenses, ordinances, rights of way, liberties, immunities and
permits of the Company, howsoever conferred or acquired, and whether now owned
or hereafter to be acquired, with respect to the construction, maintenance,
repair and/or operation of said electric generating plants and electric
transmission and/or distribution systems, and each of them, and any additions
thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering
and/or transmission and/or distribution systems now owned by the Company, and
any gas generating plants, gas storage plants and/or gas transmission and/or
distribution systems hereafter constructed or acquired by the Company, and any
additions to or extensions of any such existing or future plants and systems,
together with the buildings, erections, structures, generating and purifying
apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines,
connections, service pipes, meters, conduits, instruments, appliances,
apparatus, facilities, machinery, fixtures and all other property used or
provided for use in the construction, maintenance, repair and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also with all rights,
<PAGE> 69
66
privileges, rights of way, franchises, licenses, easements, grants, liberties,
immunities, permits and ordinances of the Company, howsoever conferred or
acquired, and whether now owned or hereafter to be acquired, with respect to the
construction, maintenance, repair and/or operation of said gas generating
plants, gas storage plants and gas gathering and/or transmission and/or
distribution systems, and each of them, and any additions thereto and extensions
thereof.
Third: The waterworks plants and water distribution systems now owned
by the Company, and any waterworks plants and/or waterworks distribution systems
hereafter constructed or acquired by the Company, together with the buildings,
structures, erections, pumps, pumping machinery, reservoirs, filters,
filter-galleries, chlorinating equipment, tanks, wells, water rights, water
supply, water mains, hydrants, pipelines, service pipes, meters, standpipes,
engines, boilers, apparatus, appliances, facilities, machinery, equipment,
fixtures, and all other property used or provided for use in the construction,
maintenance, repair and/or operation thereof, both that now owned and that which
may be hereafter acquired by the Company, and together also with all of the
rights, privileges, rights of way, franchises, licenses, easements, permits,
liberties, immunities, grants and ordinances of the Company, howsoever conferred
or acquired, and whether now owned or hereafter to be acquired, with respect to
the construction, maintenance, repair and operation of said plants and systems
and each of them, and any additions thereto and extensions thereof.
TOGETHER WITH all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid properties
or any part thereof, with the reversion and reversions, remainder and
remainders, and (subject to the provisions of Section 9.01 of the Indenture) the
tolls, rents, revenues, issues, income, product and profits thereof, and all the
estate, right, title, interest and claim whatsoever, at law as well as in
equity, which the Company now has or may hereafter acquire in and to the
aforesaid property and every part and parcel thereof.
SAVING AND EXCEPTING, however, from the properties mortgaged and
pledged by the Indenture (whether now owned by the Company or hereafter acquired
by it) all bills, notes and accounts receivable,
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67
cash on hand and in bank, contracts, merchandise and appliances kept for
purposes of sale, and all bonds, obligations, evidences of indebtedness, shares
of stock and other securities, and certificates or evidences of interest
therein-other than any of the foregoing which may be hereafter specifically
transferred or assigned to or pledged or deposited with the Trustee under the
Indenture or required by the provisions of the Indenture so to be-and all office
furniture and equipment, motor vehicles, tools, testing equipment and consumable
materials and supplies; provided, however, that, if upon the happening of an
event of default as in the Indenture defined, the Trustee or any receiver
appointed under the Indenture shall enter upon and take possession of the
mortgaged property, the Trustee or such receiver may, to the extent permitted by
law, at the same time likewise take possession of any and all of the property
described in this paragraph then on hand and use and administer the same to the
extent as if such property were part of the mortgaged property, unless and until
such event of default shall be remedied or waived and possession of the
mortgaged property restored to the Company, its successors or assigns.
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged
and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company
and not used by it or useful in connection with its business as an electric, gas
or water company or as an electric, gas or water utility, including the
following parcels which the Trustee does hereby release from the lien of the
Indenture:
Parcel 1. All of that certain lot or parcel of unimproved land,
situated in the Parish of Vernon, State of Louisiana, and described as
follows, to-wit:
A plot of ground measuring 100 feet on the north side of gravel
road in the SW/4 of the SW/4 of Section 26, township 2, Range 9 West,
more particularly described as follows:
Beginning at an iron pin 150 feet south 41 degrees 19 minutes east
from the intersection of the east right of way line of the main line of
the Kansas City Southern Railway and the north line of gravel road,
thence north 48 degrees 41 minutes east a distance of 100 feet; thence
south 41 degrees 19 minutes east a distance of 100 feet; thence south
48 degrees 41 minutes
<PAGE> 71
68
west a distance of 100 feet; thence north 41 degrees 19 minutes west a
distance of 100 feet to point of beginning.
Being the same property as that described in the Deed from
Columbus Pitre to Louisiana Public Utilities Co., Inc., recorded in
Book 143, page 445, records of Vernon Parish, which deed is dated June
22, 1942.
Parcel 2. A certain lot or parcel of unimproved land in the Town
of Slidell, St. Tammany Parish, described as Lot Twenty-five (25) in
Square No. 11 of the Brugier Addition, as per the official map of the
said Town on file in the office of the Clerk of Court of said parish.
Said Lot twenty-five (25) has a frontage of Fifty (50) feet on Florida
Avenue and extends northward between parallel lines a distance of One
Hundred Forty-four (144) feet and having a depth in the rear of Fifty
(50) feet. Said Square No. Eleven (11) which contains Lot Twenty-five
(25) being bounded on the south by Florida Avenue, on the East by Fifth
Street, on the North by Hall Avenue and on the West by Fourth Street.
Being part of the property acquired by Louisiana Public Utilities
Co. Inc. from Slidell Ice & Light Company by Act passed before L. V.
Cooley, Jr., Notary Public, for the Parish of St. Tammany, dated
October 31, 1925, registered in the conveyance records of St. Tammany
Parish in Book 90, Folio 573.
Parcel 3. The following described unimproved property in the
Parish of DeSoto, described as an irregular tract of land being a part
of the Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) of
Section Twenty (20), Township Twelve (12) North, Range Thirteen (13)
West and more particularly described as follows: Commencing at the
intersection of the Southwesterly right of way line of the Texas &
Pacific R. R. with the Northwesterly right of way line of the Kansas
City Southern R. R.; thence in a Northwesterly direction along the
aforesaid Southwesterly right of way line of the Texas & Pacific R. R.
a distance of Two Hundred Seventy-five and Three-tenths (275.3) feet to
the place of beginning; thence south eighteen degrees fifteen minutes
(18(degree) 15') West a distance of Five Hundred twenty-nine (529) feet
to a point; thence west two hundred eight (208) feet more or less to
the east line of the Southwest Quarter (SW/4) of the Northwest Quarter
(NW/4) of said Section Twenty (20); thence North
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69
along said East line of the Southwest Quarter (SW/4) of the Northwest
Quarter (NW/4) a distance of Six Hundred forty-eight and five-tenths
(648.5) feet more or less to the aforesaid Southwesterly right of way
of the Texas & Pacific R. R.; thence Southeasterly along said
Southwesterly right of way line of the Texas & Pacific R. R. a distance
of four hundred four (404) feet, more or less, to the place of
beginning, containing four (4) acres, more or less.
Parcel 4. A parcel of unimproved real estate in the Parish of
DeSoto described as beginning at a point on the line dividing the
Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) and the
Southwest Quarter (SW/4) of the Northwest Quarter (NW/4) of Section
Twenty (20), Township Twelve (12) North, Range Thirteen (13) West Ten
(10) chains and forty (40) links North of the Southwest corner of the
Southeast Quarter (SE/4) of the Northwest Quarter (NW/4) of said
section; running thence West Two (2) chains and Ninety-five (95) links;
thence North Three (3) chains and Seventy (70) links; thence south
fifty-two degrees Ten minutes (52(degree) 10') East three (3) chains
seventy-two (72) links to the West line of the Southeast Quarter (SE/4)
of the Northwest Quarter (NW/4) of said section Twenty (20); thence
south one (1) chain fifty (50) links to the place of beginning.
Parcels 3 and 4 being part of the property conveyed by Crystal Ice
and Bottling Co. Ltd. to Louisiana Public Utilities Co. Inc. by deed
dated March 24, 1927 recorded in Book 77, Folio 464, records of DeSoto
Parish.
Parcel 5. A certain parcel or tract of land together with all
improvements and appurtenances thereto belonging, situated in the Town
of Glenmore, Parish of Rapides, State of Louisiana, and being more
particularly described as follows: Beginning one hundred fourteen feet
South of Sycamore Street on the East side of the Pelican Highway;
thence South following the Pelican Highway to the East and West Quarter
Line, Section Seventeen, Township One, South Range Two West; thence
East to the right of way of the Missouri Pacific Railroad Company;
thence North along the Missouri Pacific Railroad Company right of way
to the South side of Sycamore Street, if said street was continued;
thence West to the point of beginning.
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70
This being the same property acquired by Gulf Public Service
Company from W. C. Pringle, under an act of sale of date March 3rd,
1926, and of record in Book 139 of Conveyances, Page 29, Ent. No.
109,806, of date March 3rd, 1926. There is located on said parcel an
ice storage and sales station.
Parcel 6. The following described property in the Parish of
Vermilion, described as those two (2) certain lots of ground lying and
being situated in the Stebbins Addition to the Town of Abbeville, known
and designated as Lots Ninety-three (93) and Ninety-five (95) of said
Addition, each of said lots measuring Sixty-six (66) feet Eight (8)
inches North and South by One Hundred Twenty (120) feet East and West
bounded on the North by Lot Ninety-one (91), East by Lots Ninety-four
(94) and Ninety-six (96), South by Street and West by Gueynon Street.
Parcel 7. Those certain four (4) lots of ground lying and being
situated in the Town of Abbeville and being designated as Lots
Eighty-five (85), Eighty-six (86), Eighty-seven (87) and Eighty-eight
(88) of Stebbins Addition to the Town of Abbeville all as per plan of
said addition made by Edwards & Montagne, less Fifteen (15) feet on the
northern boundary line of Lots Eighty-five (85) and Eighty-six (86)
reserved for a switch for the benefit of all lots of said Addition on
the line of the Iberia & Vermilion Railroad Company, Lot Eighty-five
(85) being bounded on the North by the Iberia & Vermilion Railroad
Company, on the West by Gueynon Street, on the East by lot Eighty-six
(86) and on the South by Lot Eighty-seven (87). Lot Eighty-six (86) is
bounded on the North by the Iberia & Vermilion Railroad Company and on
the South by Lot Eighty-eight (88), on the East by Young Street and on
the West by Lot Eighty-five (85); Lot Eighty-seven (87) is bounded on
the North by Lot Eighty-five (85), on the South by Lot Eighty-nine
(89), on the East by Lot Eighty-eight (88) and on the West by Gueynon
Street; Lot Eighty-eight (88) is bounded on the North by Lot Eighty-six
(86), on the South by Lot Ninety (90), on the East by Young Street and
on the West by Lot Eighty-seven (87); each of said lots measured
Sixty-six (66) feet Eight (8) inches by One Hundred Twenty (120) feet.
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Parcel 8. Those two certain lots of ground lying and being
situated in the Stebbins Addition to the Town of Abbeville, known and
designated as Lots Eighty-nine (89) and Ninety-one (91) of said
Addition, all as per the plan of said Edwards & Montagne, Surveyors, on
file in the Clerk's office of Vermilion Parish.
Parcels 6, 7 and 8 being the same property acquired by Louisiana
Public Utilities Co., Inc. from Raymond H. Burtz by Act passed before
Walter B. Gordy, Notary Public for the parish of Vermilion dated April
26, 1926, recorded in the conveyance records of Vermilion Parish in
Book 87, folio 109, under entry No. 41643.
There is located on Parcels 6, 7 and 8 above described an ice
plant and residence.
Parcel 9. The following described property in the City of Crowley,
in the parish of Acadia, described as Lots One (1) and Two (2) in Block
Eight (8) of W. W. Duson's additions to the City of Crowley, having a
front of One Hundred (100) feet on the South side of the Louisiana
Western Railroad by a depth of One Hundred (100) feet between parallel
lines along the East line of Parkerson Avenue to the North line of the
property described under parcel 10 hereafter.
Parcel 10. A certain parcel of ground in the City of Crowley,
Parish of Acadia, described as a lot of ground situated in southwest
corner of Block Eight (8) of the W. W. Duson Addition to the City of
Crowley adjoining the property above described under Parcel Nineteen
and having a depth of One Hundred (100) feet on the North side of Mills
Street and a depth of One Hundred (100) feet between parallel lines
along the East side of Parkerson Avenue to the South line of the
property described under Parcel Thirteen aforesaid.
Said parcels 9 and 10 being the same property acquired by
Louisiana Public Utilities Co. Inc., by deed from Albert F. Horn by Act
passed before J. Matt Buatt, Notary Public, Parish of Acadia, dated
December 16, 1926, recorded in the conveyance records of Acadia Parish
in Book B-4, folio 274.
There is located on Parcels 9 and 10 above described an ice plant.
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72
Parcel 11. The following piece or parcel of land in the Town of
White Castle, Parish of Iberville, described as lots Twelve (12),
Thirteen (13) and Fourteen (14) in Square Five (5) of Plan of Soniat's
New Addition to said Town (see Con. Bk. 25, entry 293).
Lot Twelve (12) measures forty-three feet, nine inches (43' 9")
front on Railroad Avenue, one hundred twenty-six feet one inch and
seven lines (126' 1" 7"') on the eastern line, one hundred
twenty-five feet, ten inches, five lines (125' 10" 5"') on the
western line, and forty-three feet, nine inches (43' 9") on 'the
northern line.
Lot Thirteen (13) measures forty-three feet, nine inches (43' 9")
front on Railroad Avenue, one hundred twenty-five feet, ten inches,
five lines (125' 10" 5"') on the eastern line, one hundred
twenty-five feet, seven inches, three lines (125' 7" 3"') on the
western line, and forty-three feet, nine inches (43' 9") on the
northern line.
Lot Fourteen (14) measures forty-three feet, nine inches (44' 9")
front on Railroad Avenue, one hundred twenty-five feet, seven inches,
three lines (125' 7" 3"') on the eastern line, one hundred
twenty-five feet, four inches, one line (125' 4" 1"') on the western
line fronting on Leona Avenue, and forty-three feet, nine inches (43'
9") on the northern line.
Said lots are contiguous and are bounded together on the front or
south by Railroad Avenue, on the east by Lot 11, on the North by Lot 15
and part of Lot 8 and on the west by Leona Avenue.
Parcel 15 being the same property which was conveyed by Deed from
Alcide Barbier and Alcee Doiron by Act before Joseph Grace, Notary
Public, Parish of Iberville, June 30, 1927, and registered in the
conveyance records of the parish of Iberville in Conveyance Book 51,
entry 206.
There is located on Parcel 11 above described an ice sales
station.
Parcel 12. Property in the Town of Port Allen, Parish of West
Baton Rouge described as a parcel of ground constituting the westerly
portion of Square Thirteen (13) of "The Oaks Subdivision" in the Town
of Port Allen. The said plot measures one hundred (100) feet front on
Oaks Avenue by a depth between parallel lines of One Hundred Eighty-two
(182) feet.
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Parcel 12 being the same property conveyed in the Deed from The
Oaks, Inc. to Louisiana Public Utilities Co., Inc. dated June 11, 1929,
recorded in C. B. 18, Entry No. 88 on June 11, 1929.
There is located on said Parcel 12 above described an ice sales
station.
Parcel 13. A parcel of land in the Town of Many, Sabine Parish,
described as a parcel of land in the North-west comer of Lot Two (2) of
Giauque's Third Addition to Many described as: Beginning at the
North-west corner of said Lot Two (2), running thence South Seventy
degrees (70(degree)) East Twenty (20) feet; thence South Twenty Degrees
(20(degree)) West Two Hundred (200) feet; thence North Seventy Degrees
(70(degree)) West Twenty (20) feet; thence North Twenty Degrees
(20(degree)) East Two Hundred (200) feet to the place of beginning, and
Lot Three (3) of Giauque's Third Addition to Many less the following
described lots, to-wit: Beginning at the North-west corner of said Lot
Three (3), running east Sixty (60) feet; thence South One Hundred
Twenty-five (125) feet; thence West Sixty (60) feet; thence North One
Hundred Twenty-five (125) feet to the place of beginning and excepting
a lot described as: Beginning at the Southwest corner of the lot of
land now or formerly owned by J. L. Dees in the North-west corner of
said Lot Three (3) and running South on the West line of said Lot Three
One Hundred Sixty-five (165) feet; thence East parallel with the North
line of said Lot Three (3) Sixty (60) feet; thence North parallel with
the West line of said Lot Three (3) to the South-east corner of said J.
L. Dees' lot; thence West on the South line of said J. L. Dees' lot to
the place of beginning.
Being the same property as that acquired by Louisiana Public
Utilities Co., Inc. from Crystal Ice and Bottle Company, Ltd., dated
March 22, 1927, and recorded in the conveyance records of Sabine Parish
in Book 43, folio 132.
There is located on said Parcel 13 above described an ice plant.
Parcel 14. The following described property in the Town of
Franklin, St. Mary Parish, described as a parcel of ground on the West
side of Bayou Teche in the Town of Franklin measuring Thirty-four (34)
feet front on the East side of Main Street, described as follows:
Beginning at a point on the East side of
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Main Street at the intersection of the Southwest corner of the property
now or formerly owned by Mrs. E. B. Spiller and measuring in a
Northeasterly direction Four Hundred Fifty-seven (457) feet to Bayou
Teche; thence in a Southeasterly direction and fronting on Bayou Teche
a distance of One Hundred Fifteen (115) feet; thence in a Southwesterly
direction a distance of Two Hundred Two (202) feet to a stake; thence
in a Northwesterly direction a distance of Seventy-one (71) feet to a
stake and thence Westerly a distance of Two Hundred Twenty-nine (229)
feet to the East side of Main Street; thence in a Northwesterly
direction fronting on the East line of Main street a distance of
Thirty-four (34) feet to the place of beginning. Said property being
bounded on the North by the property of Mrs. E. B. Spiller, or assigns,
on the East by Bayou Teche, on the South partly by lands of W. R. Gates
and Bell et als, or assigns, and on the West by said Main Street.
Being the same property acquired by Louisiana Public Utilities Co.
Inc. from the Franklin Ice Works, Ltd. by deed dated March 24, 1926,
recorded in the conveyance records of St. Mary Parish in Book 4-K of
conveyances, entry 51745.
There is located on said Parcel 14 above described an ice plant.
Parcel 15. The following property in the city of New Iberia,
Parish of Iberia, Louisiana described as:
A parcel of land bounded on the North by Bayou Teche, on the South
by the property now or formerly of J. H. Slaughter, F. G. Patout and
Elks Theatre Co. Inc.; on the East by Swain Street, and on the West by
a strip of land Twenty (20) feet in width leased by the New Iberia &
Northern R. R. Company by act before Ventress J. Smith, dated September
1, 1910, recorded September 3, 1910 in C. 0. B. 72, folio 38 of the
records of Iberia Parish (less a strip of land Twenty-five (25) feet
wide granted to the New Iberia & Northern R. R. Company for a
right-of-way along the front of Bayou Teche) and which said property
measures as follows: to-wit: One Hundred Forty-four and One-half (144
1/2) feet more or less on Swain Street, Two Hundred Sixty one (261)
feet more or less front on Bayou Teche, Two Hundred Forty-seven (247)
feet more or less on the line separating said properties from the
property now or formerly of J. H. Slaughter,
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F. G. Patout and Elks Theatres, Inc. and One Hundred Eighty-four (184)
feet more or less on the line separating said property from the strip
of land Twenty-five (25) feet in width leased by the New Iberia &
Northern R. R. Company recorded in C. 0. B. 72, folio 38 of the records
of Iberia Parish.
Being the same property described in the Deed from New Iberia Ice
& Cream Co. Inc. to Louisiana Public Utilities Co. Inc. dated March 4,
1927, recorded in Book 108, entry No. 41481.
Parcel 16. That certain parcel of real estate in the City of New
Iberia, Parish of Iberia, described as that certain lot measuring
Thirty-five (35) feet front on Swain Street by a depth between parallel
lines of Eighty-nine (89) feet and running back to the property now or
formerly of Jennaro and bounded as follows: in front by said Swain
Street, in rear by the property now or formerly of Jennaro, above by
the property now or formerly of John R. Taylor and below by the
property of New Iberia Ice & Cream Co. Inc.
Parcel 17. That certain parcel of real estate in the City of New
Iberia, Parish of Iberia, measuring Thirty-six (36) feet front by
Thirty-five (35) feet in depth and bounded as follows: North by the
property now or formerly of Fred Patout, East by the property of the
New Iberia Ice & Cream Co. Inc.; South by the property now or formerly
of Taylor and West by the property now or formerly of Jennaro.
Parcels 16 and 17 being the same property acquired by Louisiana
Public Utilities Co. Inc. from Joseph H. Slaughter by deed dated April
18, 1932.
Parcel 18. A certain strip of land measuring Twenty-five (25) feet
in width and adjoining and paralleling the rear of the property above
described as Parcel Fifteen (15), and running from the right-of-way of
the New Iberia & Northern R. R. across the property of Elks Lodge,
formerly Alma House Property, the said strip of land being under a
99-year lease as recorded in C. 0. B. 72, Folio 38 of the records of
Iberia Parish.
Being the same property as that described in the Deed from New
Iberia Ice & Cream Co. Inc. to Louisiana Public Utilities Co. Inc.
dated March 4, 1927, recorded in Book 108, Entry No. 41481.
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There is located on said Parcels 15, 16, 17 and 18 above described
an ice plant.
Parcel 19. A parcel of land located in the Village of Concoe,
formerly Turnerville, in the parish of Iberville, forming a part or
portion of the property purchased by Victor J. Kurzweg from Mrs. M. P.
Grover, et al and known as the "Grover Tract", said tract being
designated by the letter "H" on plan of survey of town lots made and
prepared by J. C. Kleinpeter, Surveyor, July, 1920, for the said
Kurzweg and annexed to and made a part of the sale by Victor J. Kurzweg
to Crystal Ice Products, Inc. dated October 29, 1926, said tract being
further described as fronting One Hundred Sixty-seven (167) feet Ten
(10) inches on the Forty-six (46) foot Parish Public Road, which runs
from the Town of Plaquemine through said Village of Concoe or
Turnerville, having as its northern boundary the center line of the T.
& P. R. R. Co. spur, designated on the said map as its southern
boundary, Lots One (1), Four (4), Five (5) and Six (6) of Square E of
said plan and in the rear bounded for a distance of One Hundred Ten
(110) feet by the fifteen (15) foot street designated on said plan and
for a distance of Eighty (80) feet on the Thirty-six (36) foot street
also designated on said plan, said rear boundary being in the shape of
an obtuse angle.
Being the same property conveyed in the Deed from Crystal Ice
Products Co. to Louisiana Public Utilities Co., Inc. dated July 8,
1927, recorded in Book 51, folio 250.
There is located on said parcel 19 above described an ice plant.
Parcel 20. The following described property in the City of
Donaldsonville, Parish of Ascension, described as six lots of land
designated on the plan of the lands of the Donaldsonville Land and
Improvement Co., Ltd., said plan being on file in the Recorder's office
of said Parish and Paraphed "Ne Varietur" by C. A. Gondran, Notary
Public for identification, with an act of sale from said company to
Mrs. Montreal Accosta under date of May 3, 1895, said plan being
recorded in Book 37 of conveyances at page 284. Three of said lots are
numbered and located as follows: Lots Seventeen (17), Eighteen (18) in
Square Two (2) measure Forty-two and Two-tenths (42.2) feet; Lot
Nineteen (19) measures Forty-two and One-tenth (42.1) feet; all of said
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three lots are situated and adjoin each other and said Lot Seventeen
(17) in said Square Two (2) forms the Northwest corner of intersection
of Second and Peytavin Streets and are One Hundred Ten (110) feet deep.
Three of said lots are numbered and located as follows: Lots Fourteen
(14), Fifteen (15) and Sixteen (16) in Square Two (2) on the same plan
of the lots of said company, said lots measuring front on Second Street
Forty-five and Two-tenths (45.2) feet each with a depth of One Hundred
Sixty-eight and Five-tenths (168.5) feet; Square Two (2) being bounded
by First, Peytavin, St. Vincent and Second Streets, said three lots
Seventeen (17), Eighteen (18) and Nineteen (19) all facing Peytavin
Street.
Being the same parcel conveyed by Crystal Ice Products Company,
Inc. to Louisiana Public Utilities Co. Inc., by Act before Sidney A.
Marchand, Notary Public, Parish of Ascension, July 8, 1927, registered
in the conveyance records, Parish of Ascension, in Book of Conveyance
68, folio 9.
There is located on said Parcel 20 above described an ice plant.
Parcel 21. A certain lot of ground, located within the corporate
limits of the Town of Thibodaux, in the Parish of Lafourche, on the
East Bank of Bayou Lafourche, in what was formerly known as the North
Thibodaux Addition, and forming part of Block 13 of said addition;
which said lot of ground begins at a point marked on the ground by an
iron pipe imbedded in cement at or near the southeast corner of Block
13 of said North Thibodaux Addition, which is at or near the northwest
corner of the intersection of said St. Patrick Highway and North
Seventh Street; and from said point runs westerly along the northern
line of North Seventh Street a distance of 221.2 feet to a point in the
south line of Block 13 aforesaid also marked by an iron pipe imbedded
in cement; thence northerly parallel with St. Patrick Highway a
distance of 102.3 feet to a point marked by another iron pipe also
imbedded in cement; thence easterly a distance of 216 feet to a point
in the west line of said highway also marked by an iron pipe imbedded
in cement; and thence southerly along the west line of said highway a
distance of 83.9 feet to a point of beginning. The property herein sold
comprises Lots 13, 14 and 15, parts of Lots 9., 10, 11 and 12, part of
Lot 6,
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78
and a small part of Lot 16 of said block; and as a whole is bounded
northerly and westerly by remainder of property of vendor, southerly by
North Seventh Street, and east by St. Patrick Highway; and together
with said property the ice factory and all other improvements thereon
situated.
The ice factory and other improvements were acquired by Louisiana
Public Utilities Co., Inc., on July 1, 1943, by act of sale recorded in
Conveyance Book No. 111 and Mortgage Book ZZ-8, under entry No.
BE-64366, records of Lafourche parish.
Parcel 22. Property in the City of Lafayette, Parish of Lafayette,
described as that portion of land in the City of Lafayette that is
bounded on the Northwest by the Morgan's Louisiana & Texas R. & S.
Co.'s right-of-way, on the South by Wye track that connects the
Alexandria Branch main track and main line of Louisiana Western R. on
the Northeast by the South right-of-way line of the Alexandria Branch,
on the South by the North right-of-way line of the Louisiana Western
R., on the West by the East edge of the extension of Green Street, the
above described real estate being more fully described as follows:
Beginning at a point "D" said point being the intersection of the North
right-of-way line of the Louisiana Western R. and the South
right-of-way line of the Alexandria Branch, turning an angle of Fifteen
Degrees (15(degree)) from the Alexandria Branch right-of-way from North
to West and running a Three Degrees (3(degree)) curve in the
northwesterly direction along the North right-of-way of Louisiana
Western R. a distance of Seven Hundred Fifty-four (754) feet to a point
"C"; thence turn tangent to curve at this point "C"; and turn an angle
of One Hundred Thirty-six Degrees Forty Minutes (136(degree) 40') from
right to left and run on this line which is the East side of Green
Street produced a distance of Two Hundred Fifty-three (253) feet to the
point "B"; thence turn angle from right to left of One Hundred Fifteen
Degrees (1150) which will be a tangent to a Twelve Degree (12(degree))
curve at point "B"; thence run a Twelve Degree (12(degree)) curve in a
northerly direction from this tangent for a distance of Four Hundred
Fifty (450) feet to point "A", this line being the present East
right-of-way line of the Alexandria Branch of Morgan's Louisiana &
Texas R. & S. Co.'s Wye track which connects the Alexandria Branch with
the Louisiana Western
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R.; thence turn tangent to a Twelve Degree (12(degree)) curve at point
"A" and measure an angle of Eighteen Degrees Fifteen Minutes
(18(degree) 15') to the left from said tangent and run a distance of
Twelve Hundred Thirty (1230) feet along the south right-of-way of the
Alexandria Branch to a point "D" which is the place of beginning and
containing four and three-quarters acres.
Being the same property as that acquired by Louisiana Public
Utilities Co., Inc. from Samuel R. Morgan by act before William P.
Mills, Notary Public, dated May 11, 1926, registered in the conveyance
records of Lafayette Parish in Book V-7, folio 251; less and except
that certain parcel of 1.25 acres (more or less) sold by Louisiana
Public Utilities Co. to Patrick E. Mouton on May 2, 1946, by deed of
record under entry No. 190,492, records of Lafayette Parish, Louisiana,
said excepted tract being described as follows:
Beginning at a point where a line 151 feet southerly from and
parallel to the south side of the Louisiana Public Utilities Co., Inc.
Ice Plant building joins Morgan's Louisiana & Texas Railroad & S. S.
Co. right of way (the location of said line being marked by concrete
posts set therein at points 151' southerly from and opposite the
eastern and western ends of the south side of said Ice Plant building);
thence running easterly along said line to the center line of the
railroad yard track located on the property of Louisiana Public
Utilities Co., Inc., thence turning southerly 90 degrees and running a
distance of 75.0 feet, thence turning easterly 90 degrees and measuring
the full distance to the easterly line of the parcel acquired as
aforesaid by act of record in Conv. Book V-7, at page 251, thence south
along the easterly boundary of said property to the north right of way
line of Louisiana Western Railroad and running a three-degree
(3(degree)) curve in a northwesterly direction along the north right of
way of La. Western Railroad to point of beginning.
There is located on said Parcel 22 above described an ice plant.
Parcel 23. Real estate in the Town of Abbeville, Parish of
Vermilion, described as Six and Seventy-four One-hundredths (6.74)
acres of land more or less, and being a portion of irregular Section
Fifty-two (52) Township Twelve (12) South, Range Three (3) East and
designated as Lot One (1) of the Partition
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80
in re Succession of C. T. Guidry Sr. as per process verbal of sale
recorded in Book 27, page 258 of conveyances, and bounded as follows:
On the North by the Public Road; on the South by Bayou Vermilion; on
the East by Bayou Vermilion; on the West by the property now or
formerly of the heirs of Anthony LeBlanc, subject, however, to an
outstanding royalty of one-thirty-second (1/32) of all oil, gas or
other minerals except sulphur produced from said land and a royalty of
12 1/2(cent) per long ton for all sulphur produced from said land.
Being the same property as that acquired by the Louisiana Public
Utilities Co., Inc. from Dr. Amable A. Comeaux by Act passed before A.
O. Landry, Notary Public, Vermilion Parish, dated September 30, 1940,
recorded in the conveyance records of Vermilion Parish, Book 151, folio
55.
There is located on said parcel 23 above described an ice storage
plant.
Parcel 24. A certain tract of land situated within the corporate
limits of the Village of Delcambre, Parish of Iberia, fronting on the
right of way of the Texas and New Orleans Branch Railway and extending
south 200 feet from said Railway right of way, and bounded on the north
by the right of way of the Texas and New Orleans Branch Railway, on the
east by the Delcambre Canal, on the south by the property of Cypremont
Sugar Company, Inc., and on the west by the property of Mrs. Lawrence
D. Belair, being the same property acquired by Louisiana Public
Utilities Co., Inc. from Cypremont Sugar Company, Inc. under date of
September 22, 1944.
There is located on said tract an ice plant.
Parcel 25. A certain lot of ground in the City of Natchitoches,
La., on the East side of Boyd Street, measuring 295 feet on said Boyd
Street, and measuring 300 feet on and parallel with the right of way of
the Texas and Pacific Railway Company, measuring 60 feet 7 inches on
Bossier St., and 220 feet on its south boundary extending from Boyd
Street to the right of way of the Texas and Pacific Railway Company,
and bounded on the North by Bossier St., on the South by property of H.
A. Cooke, on the East by right of way of the Texas & Pacific Rail. way
and on the West by Boyd St.;
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81
Being the lot acquired by Gulf Public Service Company from C. A.
Tooke et at., under act of sale of date June 30th, 1927, and of record
in Book 159 of Conveyances, Page 431 et seq., Ent. No. 58,098, of date
July 1st, 1927, Natchitoches Parish, Louisiana.
There is located on Parcel 25 above described an ice plant.
Parcel 26. That certain lot or tract of land situated within the
corporate limits of the City of Opelousas, Louisiana, and being bounded
on the North by Grolee Street, on the West by Opelousas Gulf & N. E. R.
R., on the South by Cotton Companies Co., East by Cotton Companies Co.
Being the same property acquired by Gulf Public Service Company
from A. Moresi and wife, under authentic act of sale dated May 11th,
1926, and recorded in Book N-5 of Conveyances, Page 118, Ent. No.
105419, of date May 21st, 1926, Clerk's Office, St. Landry Parish,
Louisiana. There is located on Parcel 26 above described an ice plant.
Parcel 27. Six (6) certain lots or parcels of land, situated in
the Alfred Bacciochi Addition to the Town of Eunice, St. Landry Parish,
La., having a frontage of two hundred and ninety-three and 5/100
(293.05) feet upon First Street, by a depth of one hundred (100) feet
running east between parallel lines to the right of way of the
Louisiana Western (Southern Pacific) Railroad Company, bounded on the
North by strip of land hereinafter described, South by right of way of
the Gulf Coast Lines Railroad (formerly N. 0. T. & N. R. R.), on the
East by the right of way of the Louisiana Western (Southern Pacific)
Railroad Company and on the West by First Street.
Also a strip of land Twenty-three (23) feet in width North and
South by a depth of one hundred (100) feet East and West, bounded North
by what is known as the Haas Addition to said Town of Eunice, South by
lot No. 25 of Block No. 14 of the Alfred Bacciochi Addition to the Town
of Eunice, East by right of way of Louisiana Western (Southern Pacific)
Railroad Company, and West by First Street.
The above described lots and strip of land are situated in the
Northeast quarter of Southeast quarter of Section 23, Township 6, South
Range 1 West.
Being the same property acquired by Gulf Public Service Company
from Andrew Moresi and Alf. A. Moresi, under an
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authentic act of sale dated May 14, 1926, of record in Book N-5 of
Conveyances, Page 83, Ent. No. 105,358, of date May 14, 1926, Clerk's
Office, St. Landry Parish, La.
There is located on Parcel 27 above described an ice plant.
Parcel 28. A certain lot or parcel of ground situated within the
corporate limits of the Town of Jeanerette, Parish of Iberia, State of
Louisiana, beginning at a point 233 feet north 39 degrees 16' east from
the point of intersection of the northeast side property line of Main
Street and the southeast property line of Cooper Street; thence south
48 degrees 45' east 195.5 feet; thence north 46 degrees 20' east 272
feet; thence south 48 degrees 45' east 85 feet; thence south 32 degrees
361 west 120 feet; thence south 48 degrees 45' east, 257.4 feet; thence
north 32 degrees 36' east 300 feet to Bayou Teche; thence running along
Bayou Teche for a distance of 470 feet more or less to the intersection
of the property lines of Gulf Public Service Company and Consolidated
Company, Inc.; thence south 39 degrees 16' west 297.5 feet; thence
north 48 degrees 45' west 81 feet to the property line of Cooper
Street; thence along Cooper Street south 39 degrees 16' west 155 feet
to point of beginning; being the property acquired by Gulf Public
Service Company partly by act of purchase from Louisiana Public Service
Company, Inc., dated December 8, 1925, recorded in Conveyance Book 105
at Folio 148, under Entry No. 39956 of the records of Iberia Parish,
Louisiana, and partly by act of purchase from A. P. Moresi, dated May
17th, 1926, recorded in Conveyance Book 107, at Folio 159, under Entry
No. 40904 of the records of Iberia Parish, Louisiana.
There is located on Parcel 28 above described an ice and bottling
plant and warehouse.
Said parcels numbered I to 28, inclusive, having been acquired by
the Company from Gulf Public Service Co., Inc.
Parcel 29. (a) A parcel of land containing 24.04 acres in the West
Half of the Southwest Quarter of Section 7, Township 4 North, Range I
East, Rapides Parish, Louisiana, and being more particularly described
as follows: Begin at the Southwest corner of said Section 7 and run
thence North 89(degree) 50' East along the South line of said Section
549.76 feet to establish a point of beginning; from said point of
beginning as thus established run thence North 89(degree) 50' East
along the South line of said Section 7 a distance
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83
of 778.5 feet to the Southeast corner of the property herein described;
thence run North 0(degree) 12' East 1332 feet to the South line of
Holloway Prairie Road right of way; thence run North 88' 15' West along
the South line of said right of way a distance of 779 feet; thence run
South 0(degree) 12' West 1358.1 feet back to the point of beginning as
hereinabove established;
(b) A lot of unimproved ground situated in the West Half of the
Southwest Quarter of Section 7, Township 4 North, Range I East, Rapides
Parish, Louisiana, containing .04 acres and being more particularly
described as follows: Start at the Southwest corner of said Section 7
and run thence North 89(degree) 50' East along the South line of said
Section 549.76 feet; thence run North 0(degree) 12' East 1474.5 feet,
more or less, to a point 16.4 feet North of the right of way of the
Holloway Prairie Road to establish a point of beginning. From the point
of beginning as thus established run thence South 0(degree) 12' West
16.4 feet to the North line of the right of way of the Holloway Prairie
Road; thence East along the North line of said right of way a distance
of 110 feet to the West line of a 37 foot road sometimes designated as
Jones Street; thence North 0(degree) 12' East along the West line of
said Jones Street a distance of 15.8 feet; thence run Westerly back to
the point of beginning;
All as is more fully shown by plat of survey made by Irion
Lafargue, Registered Surveyor, on January 17, 1951, attached to and
made part of original instrument No. 356569 of the records of the
office of the Recorder of Rapides Parish Louisiana;
Being that property acquired by Central Louisiana Electric
Company, Inc. from the Most Reverend Charles P. Greco, individually and
as Bishop of the Roman Catholic Diocese of Alexandria, La., by deed
dated August 10, 1951, recorded in Conveyance Book 416, page 428,
Filing No. 356569, records of Rapides Parish, Louisiana.
(b) All machinery, equipment, fixtures, supplies and materials now used
or hereafter acquired for use in connection with the ice and cold storage, ice
cream, dairy, and/or soft drink bottling business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in
connection with the ice and cold storage, ice cream, dairy, and/or soft drink
bottling business of the Company, together with all tires, spare parts,
materials and supplies appertaining thereto.
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(d) All machinery, equipment, fixtures, supplies and materials, now
owned or hereafter acquired, not used by or useful to the Company in its
business as an electric, gas or water company or as an electric, gas or water
utility, not located on any parcel of real estate now owned or hereafter
acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and
replacements now or hereafter made to or acquired for or in connection with the
property set forth in paragraphs (a), (b), (c) and (d) above.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, aliened, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto the Trustee and its
successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of
way for pole lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens securing indebtedness which
has neither been assumed by the Company nor upon which it customarily pays
interest charges, existing solely upon real property, or rights in and relating
thereto, which real property or rights have been or may be acquired for
right-of-way purposes, to liens of taxes and assessments for the current year
and taxes and assessments not yet due, to alleys, streets and highways that may
run across or encroach upon said lands, and to liens, if any incidental to
construction; and, with respect to any property which the Company may hereafter
acquire, to all terms, conditions, agreements, covenants, exceptions and
reservations expressed or provided in such deeds and other instruments,
respectively, under and by virtue of which the Company shall hereafter acquire
the same and to any and all liens existing thereon at the time of such
acquisition within the restrictions contained in the Indenture; and subject also
to other liens and encumbrances of the character defined in the Indenture as
"permitted liens" insofar as the same may attach to any of the property embraced
herein;
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85
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the
Original Indenture set forth; this first Supplemental Indenture being made for
the purpose, inter alia, of subjecting the real estate and premises and other
property above described (other than property excluded above) to the lien and
operation of the Indenture, so that the same shall be held specifically by the
Trustee under and subject to the terms and conditions of the Indenture in
identically the same manner and for the same trusts, uses and purposes, aa
though the said real estate and premises and other property had been
specifically described in the Original Indenture;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and interest on all said bonds, together with the premium, if any,
payable on such of said bonds as may have been called for redemption prior to
maturity, or shall provide, as permitted by the Indenture, for the payment
thereof by depositiug with the Trustee the entire amount due or to become due
thereon for principal, interest and premium, if any, and if the Company shall
also pay or cause to be paid all other sums payable under the Indenture by it,
then the Indenture and the estate and rights thereby granted shall cease,
determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the
Company and the Trustee, for the benefit of those who shall hold said bonds and
coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES B AND BONDS OF SERIES C.
SECTION 1.1. The second series of bonds to be issued under the
Indenture and secured thereby is hereby created, which shall be designated, and
distinguished from the bonds of all other series, by the title "First Mortgage
Bonds, Series B, 3 3/4%", elsewhere herein referred to as the "bonds of Series
B".
The aggregate principal amount of the bonds of Series B is not limited
except as provided in the Indenture.
The bonds of Series B shall be dated, and shall bear interest from,
October 1, 1951, except as provided in Section 2.03 of the Indenture
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with respect to registered bonds without coupons, and shall be due October 1,
1976, and shall bear interest at the rate of three and three-fourths per centum
(3 3/4%) per annum, payable semi-annually on the first day of April and the
first day of October in each year, until maturity, and at the highest rate of
interest borne by any of the bonds outstanding under the Indenture from such
date of maturity until the obligation of the Company with respect to payment of
the principal thereof shall have been discharged. The principal of and the
premium (if any) and the interest on the bonds of Series B shall be payable at
the office or agency of the Company in the City of New Orleans, Louisiana, in
such coin or currency of the United States of America as, at the time of
payment, shall be legal tender for public and private debts.
The bonds of Series B shall be redeemable, either at the option of the
Company or pursuant to any provision of the Indenture requiring such redemption,
either as a whole or in part f rom time to time, at any time prior to maturity,
upon notice published as provided in Section 8.02 of the Indenture, at least
once in each of four (4) successive calendar weeks upon any business day of each
such calendar week, the first publication to be not less than thirty (30) days
and not more than sixty (60) days before such redemption date (or upon mailing
of such notice of redemption as provided in the first paragraph of Section 8.02
of the Indenture in the event such paragraph shall be applicable). If redeemed
by the application of moneys in the Sinking and Improvement Fund for bonds of
Series B provided for in Article 11 of this Supplemental Indenture or moneys in
the Depreciation Fund provided for in Section 5.07 of the Indenture, or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereby by any municipal corporation or other
governmental subdivision or governmental body or public authority, the Bonds of
Series B are redeemable at the redemption price at the time applicable specified
in Column A of the schedule contained in the form of coupon bond of Series B set
forth in the recitals hereof, together with interest accrued to the date fixed
for redemption. If redeemed otherwise than by the application of such moneys,
the bonds of Series B are redeemable at the redemption price at the time
applicable specified in Column B of said schedule, together with interest
accrued to the date fixed for redemption.
Coupon bonds of Series B shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds
<PAGE> 90
87
without coupons of Series B shall be issuable in denominations of $1,000 and any
multiple of $1,000. Bonds of Series B shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
SECTION 1.2. The third series of bonds to be issued under the Indenture
and secured thereby is hereby created, which shall be designated, and
distinguished from the bonds of all other series, by the title "First Mortgage
Bonds, Series C, 3 3/4%", elsewhere herein referred to as the "bonds of Series C
".
The aggregate principal amount of the bonds of Series C which may be
authenticated and delivered is limited (except as provided in Sections 2.03,
2.04, 2.05, 2.06 or 2.07 of the Indenture in respect of exchanges and
interchanges of bonds and except as provided in Section 2.08 of the Indenture in
respect of the issue of bonds in substitution for mutilated, destroyed, lost or
stolen bonds) to Nine Hundred and Sixty Thousand Dollars ($960,000).
The bonds of Series C shall be dated, and shall bear interest from,
October 1, 1951, except as provided in Section 2.03 of the Indenture with
respect to registered bonds without coupons, and shall be due October 1, 1976,
and shall bear interest at the rate of three and three-fourths per centum (3
3/4%) per annum, payable semi-annually on the first day of April and the first
day of October in each year, until maturity, and at the highest rate of interest
borne by any of the bonds outstanding under the Indenture from such date of
maturity until the obligation of the Company with respect to payment of the
principal thereof shall have been discharged. The principal of and the premium
(if any) and the interest on the bonds of Series C shall be payable at the
office or agency of the Company in the City of New Orleans, Louisiana, in such
coin or currency of the United States of America as, at the time of payment,
shall be legal tender for public and private debts.
The bonds of Series C shall be redeemable, either at the option of the
Company or pursuant to any provision of the Indenture requiring such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice published as provided in Section 8.02 of the Indenture, at least
once in each of four (4) successive calendar weeks upon any business day of each
such calendar
<PAGE> 91
88
week, the first publication to be not less than (30) days and not more than
sixty (60) days before such redemption date (or upon mailing of notice of
redemption as provided in the first paragraph of Section 8.02 of the Indenture
in the event such paragraph shall be applicable) . If redeemed by the
application of moneys in the Sinking and Improvement Fund for bonds of Series C
provided for in Article H of this Supplemental Indenture or moneys in the
Depreciation Fund provided for in Section 5.07 of the Indenture, or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereby by any municipal corporation or other
governmental subdivision or governmental body or public authority, the Bonds of
Series C are redeemable at the principal amount thereof, together with interest
accrued to the date fixed for redemption, without premium. If redeemed otherwise
than by the application of such moneys, the bonds of Series C are redeemable at
the redemption price at the time applicable specified in the schedule contained
in the form of coupon bond of Series C set forth in the recitals hereof,
together with interest accrued to the date fixed for redemption.
Coupon bonds of Series C shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds without
coupons of Series C shall be issuable in denominations of $1,000 and any
multiple of $1,000. Bonds of Series C shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING AND IMPROVEMENT FUND FOR BONDS OF
SERIES B AND BONDS OF SERIES C.
SECTION 2.1. The Company covenants and agrees that it will on or before
the first day of October, 1952, and annually thereafter on or before the first
day of October in each year to and including the first day of October, 1975, as
long as any of the Bonds of Series B issued hereunder shall be outstanding, pay
to the Trustee as and for a Sinking and Improvement Fund for the bonds of Series
B an amount in cash equal to two per centum (2%) of the greatest principal
amount of bonds of Series B at any one time outstanding under the Indenture;
<PAGE> 92
89
provided, however, that the amount of cash payable to the Trustee on any such
date pursuant to the provisions of this Section shall be reduced by an amount
equal to the sum of the following credits:
(a) The aggregate principal amount, or the cost thereof (exclusive
of accrued interest) to the Company, whichever shall be the lesser, of
bonds of Series B which the Company shall deliver to the Trustee for
that purpose; and
(b) An amount equal to sixty per centum (60%) of the amount of
bondable value of property additions which the Company shall elect to
make the basis of a credit against such payment, but the amount of the
credit which may be taken by the Company in any year under this
paragraph (b) shall not exceed one-half (1/2) of the total cash
required to be paid to the Trustee pursuant to the provisions of this
Section and provided, further, that any credits taken pursuant to this
paragraph (b) and pursuant to paragraph (b) of Section 2.2 shall be in
the same proportion to the total cash payments required to be made to
the Trustee, with respect to the first day of October of the particular
year, pursuant to Section 2.1 and Section 2.2 respectively.
In the event that the Company shall elect to take credit against any
such payment pursuant to the provisions of the foregoing paragraph (a) of this
Section, the Company shall deliver to the Trustee an officers' certificate
complying with the provisions of Section 3.01 of the Indenture and stating that
(i) the bond or bonds so delivered to the Trustee on account of any sinking and
improvement fund payment have previously been disposed of by the Company for
value, otherwise than merely by way of pledge, and subsequently purchased by the
Company at the times and cost (exclusive of accrued interest) therein specified,
and (ii) such bonds have not theretofore been made the basis for the
authentication and delivery of bonds or the withdrawal, use or application of
cash under any provisions of the Indenture or for a credit pursuant to Section
5.07 of the Indenture or this Section 2.1. In the event that the Company shall
elect to take credit against any such payment pursuant to the provisions of the
foregoing paragraph (b) of this Section, the Company shall deliver to the
Trustee an officers' certificate of bondable value of property additions meeting
the requirements of subsection (B) of Section 1.06 of the Indenture, accompanied
by the instruments required by subsection (C) of Section 1.06 thereof.
<PAGE> 93
90
All cash paid to the Trustee pursuant to the provisions of this Section
shall, to the extent practicable, be applied promptly by the Trustee to the
purchase of bonds of Series B in accordance with the provisions of Section 8.06
of the Indenture, or, at the option of the Company, shall, be applied promptly
to the redemption of bonds of Series B. If any such moneys shall remain in the
hands of the Trustee for more than three (3) months after the receipt thereof by
the Trustee, all of such moneys, to the extent that they are sufficient
(exclusive of premium and accrued interest) to redeem bonds in an aggregate
principal amount which shall be a multiple of $1,000, shall be applied by the
Trustee in accordance with the provisions of Article VIII of the Indenture to
the redemption of bonds of Series B on such date, not later than the next
succeeding interest payment date, as shall be fixed by the Trustee; and for such
purpose the Trustee may publish notice of redemption in the name of the Company
or its own name as Trustee. No moneys shall be applied as provided in this
paragraph if any default in the payment of interest on any of the bonds of
Series B shall have occurred and be continuing or if any of the completed
defaults specified in Section 10.01 of the Indenture shall have occurred and be
continuing.
SECTION 2.2. The Company covenants and agrees that it will on or before
the first day of October, 1952, and annually thereafter on or before the first
day of October in each year to and including the first day of October, 1975, as
long as any of the bonds of Series C issued hereunder shall be outstanding, pay
to the Trustee as and for a Sinking and Improvement Fund for the bonds of Series
C an amount in cash equal to two per centum (2%) of the greatest principal
amount of bonds of Series C at any one time outstanding under the Indenture;
provided, however, that the amount of cash payable to the Trustee on any such
date pursuant to the provisions of this Section shall be reduced by an amount
equal to the sum of the following credits:
(a) The aggregate principal amount, or the cost thereof (exclusive
of accrued interest) to the Company, whichever shall be the lesser, of
bonds of Series C which the Company shall deliver to the Trustee for
that purpose; and
(b) An amount equal to sixty per centum (60%) of the amount of
bondable value of property additions which the Company
<PAGE> 94
91
shall elect to make the basis of a credit against such payment; but the
amount of the credit which may be taken by the Company in any year
under this paragraph (b) shall not exceed one-half (1/2) of the total
cash required to be paid to the Trustee pursuant to the provisions of
this Section and provided, further, that any credits taken pursuant to
this paragraph (b) and pursuant to paragraph (b) of Section 2.1 shall
be in the same proportion to the total cash payments required to be
made to the Trustee, with respect to the first day of October of the
particular year, pursuant to Section 2.1 and Section 2.2 respectively.
In the event that the Company shall elect to take credit against any
such payment pursuant to the provisions of the foregoing paragraph (a) of this
Section, the Company shall deliver to the Trustee an officers' certificate
complying with the provisions of Section 3.01 of the Indenture and stating that
(i) the bond or bonds so delivered to the Trustee on account of any sinking and
improvement fund payment have previously been disposed of by the Company for
value, otherwise than merely by way of pledge, and subsequently purchased by the
Company at the times and cost (exclusive of accrued interest) therein specified,
and (ii) such bonds have not theretofore been made the basis for the
authentication and delivery of bonds or the withdrawal, use or application of
cash under any provisions of the Indenture or for a credit pursuant to Section
5.07 of the Indenture or this Section 2.2. In the event that the Company shall
elect to take credit against any such payment pursuant to the provisions of the
foregoing paragraph (b) of this Section, the Company shall deliver to the
Trustee an officers' certificate of bondable value of property additions meeting
the requirements of subsection (B) of Section 1.06 of the Indenture, accompanied
by the instruments required by subsection (C) of Section 1.06 thereof.
All cash paid to the Trustee pursuant to the provisions of this Section
shall, to the extent practicable, be applied promptly by the Trustee to the
purchase of bonds of Series C in accordance with the provisions of Section 8.06
of the Indenture, or, at the option of the Company, shall be applied promptly to
the redemption of bonds of Series C. If any such moneys shall remain in the
hands of the Trust tee for more than three (3) months after the receipt thereof
by the Trustee, all of such moneys, to the extent that they are sufficient
<PAGE> 95
92
(exclusive of premium and accrued interest) to redeem bonds in an aggregate
principal amount which shall be a multiple of $1,000, shall be applied by the
Trustee in accordance with the provisions of Article VIII of the Indenture to
the redemption of bonds of Series C on such date, not later than the next
succeeding interest payment date, as shall be fixed by the Trustee; and for such
purpose the Trustee may publish notice of redemption in the name of the Company
or in its own name as Trustee. No moneys shall be applied as provided in this
paragraph if any default in the payment of interest on any of the bonds of
Series C shall have occurred and be continuing or if any of the completed
defaults specified in Section 10.01 of the Indenture shall have occurred and be
continuing.
SECTION 2.3. All bonds of Series B or Series C delivered to the
Trustee, or purchased or redeemed, pursuant to the provisions of this Article,
shall be forthwith cancelled by the Trustee, and such bonds shall not be
reissued.
SECTION 2.4. The Company further covenants to pay to the Trustee, on
demand, the compensation of the Trustee in administering the sinking and
improvement funds as provided in this Article II, together with the Trustee's
expenses, including cost of advertisement of redemption notices and any other
advertisements and other lawful charges, if any, and any accrued interest and
premium paid or payable with respect to any such bonds of Series B and of Series
C purchased or redeemed as provided for in this Article II, it being intended
that the aforesaid compensation, expenses, charges, accrued interest and premium
shall not be charged against sinking and improvement fund moneys.
ARTICLE III.
AMENDMENTS OF ORIGINAL INDENTURE.
SECTION 3.1. The second paragraph of the definition of "property
additions" in Section 1.03 of the Original Indenture is hereby amended by
changing "(viii)" to "(ix)" and inserting after the word "Louisiana" in the
twenty-fourth line of said paragraph, the following clause, "; (viii) any
natural gas wells or works or property used in the production of natural gas as
distinguished from its transmission".
<PAGE> 96
93
SECTION 3.2. The word "matured" in the fourth line of the second
paragraph of Section 2.07 of the Original Indenture is hereby amended to read
"unmatured".
SECTION 3.3. The word "second" in the ninth line of the fourth
paragraph of Section 2.10 of the Original Indenture is hereby amended to read
"first".
SECTION 3.4. Section 4.04 of the Original Indenture is hereby amended
by inserting after the words "Section 6.01 hereof" in the last line of the first
paragraph of Section 4.04 and in subdivision (iii) of subparagraph (b) of
Section 4.04, the words "or under any sinking and improvement fund or other
purchase or similar fund which may be created pursuant to the provisions of any
indenture supplemental to the Indenture".
SECTION 3.5. Section 5.07 of the Original Indenture is hereby amended
by inserting after the words "property additions" in the third line of the
second paragraph of said Section and in the first line of paragraph (4) of said
Section, the following:
"(except property additions the bondable value of which has previously
been made the basis for the authentication and delivery of bonds or the
withdrawal of cash hereunder and except property additions acquired by merger,
consolidation or dissolution and except any property included in property
additions which within six months prior to the date of acquisition thereof by
the Company was used or operated by a person or persons other than the Company
in a business similar to that in which it has been or is to be used or operated
by the Company)".
SECTION 3.6. Section 5.10 of the Original Indenture is hereby amended
by inserting the following paragraph at the end thereof:
"That promptly after the acquisition by the Company hereafter of
any parcel of real estate or other item of property of the character
described in the granting clauses hereof as subject to the lien hereof
and having a cost to the Company of Ten Thousand Dollars ($10,000) or
more, it will execute and deliver to the Trustee and cause to be
recorded, registered and filed, in such manner and in such places as
may be required by law in order fully to preserve and protect the
security of the bondholders and all rights of the Trustee hereunder, a
supplemental
<PAGE> 97
94
indenture appropriately describing and conveying to the Trustee such
parcel of real estate or other item of property; and that if during
1952 or any calendar year thereafter the Company shall have acquired
properties of the character mortgaged or intended to be mortgaged
hereby, not theretofore included in any such supplemental indenture and
having an aggregate cost to the Company of Twenty Thousand Dollars
($20,000) or more, it will promptly after the end of such year execute
and deliver to the Trustee and cause to be so recorded, registered
and/or filed a supplemental indenture appropriately describing and
conveying to the Trustee such properties; provided, however, that in
lieu of executing and delivering any supplemental indenture pursuant to
the provisions of this paragraph, the Company may deliver to the
Trustee an opinion of counsel that no such supplemental indenture is
required in order to preserve and protect the security of the
bondholders and all rights of the Trustee hereunder in respect of any
such parcel of real estate or other properties. Upon the delivery of
any supplemental indenture pursuant to the provisions of this Section,
the Company shall deliver to the Trustee an opinion of counsel
complying with the provisions of Section 3.01 hereof and stating that
such supplemental indenture is in conformity with the requirements of
this Section.
SECTION 3.7. The second line of Section 5.20 of the Original Indenture
is hereby amended by inserting after the words "Series A", the words "or Series
B or Series C".
SECTION 3.8. Section 5.20 of the Original Indenture is hereby amended
by inserting in the last line after the word "acquisition", the following:
";provided that for the purposes of this Section no credits shall be
made to such earned surplus accumulated after December 31, 1949, on
account of premiums received by the Company on bonds issued hereunder
except (I) in pro rata annual amounts as such premiums are amortized
over the life of such bonds, or (ii) upon the redemption of such bonds
prior to their maturity".
SECTION 3.9. The first paragraph of Section 8.02 and the second
paragraph of Section 15.01 of the Original Indenture are hereby amended by
inserting before the words "in the City of New Orleans", in said paragraphs, the
words "in the Borough of Manhattan, The City of New York, New York, and in a
similar newspaper".
<PAGE> 98
95
SECTION 3.10. The covenant of the Company in Section 5.15 of the
Original Indenture shall not apply to the acquisition by the Company of the
properties formerly owned by Gulf Public Service Co., Inc., subject to the lien
of the Indenture of Mortgage of said Gulf Company dated October 1, 1946 securing
$5,804,000 principal amount of presently outstanding bonds, as a result of the
merger of said Gulf Company with and into the Company hereinbefore referred to
in the granting clauses of this First Supplemental Indenture, provided that said
Indenture of Gulf Public Service Co., Inc. shall be satisfied and released and
all bonds outstanding thereunder shall be cancelled and discharged, within 15
days from the effective date of said merger, and provided further that the
effective date of said merger shall be prior to December 15, 1951, all as
evidenced to the Trustee by an Officers' Certificate filed with the Trustee; and
otherwise the terms of said Section 5.15 shall be deemed to be and to have been
at all times in full force and effect without any modification thereof.
SECTION 3.11. The covenant of the Company in the last paragraph of
Section 17.02 of the Original Indenture shall not apply with respect to the
execution of this First Supplemental Indenture.
SECTION 3.12. The following Sections shall be inserted at the end of
Article V of the Original Indenture:
"SECTION 5.24. The Company covenants and agrees that at no
time shall the value of the properties of the Company and subsidiaries
used or useful by or to the Company and subsidiaries for any business
other than in connection with the electric, gas or water business or as
an electric, gas or water utility, exceed 9% of the then value of the
properties of the Company subject to the lien of the Indenture and used
or useful by or to it in connection with its business as an electric,
gas or water company or as an electric, gas or water utility. Such
value shall be as stated on the books of the Company and of
subsidiaries in the plant, property and equipment accounts and
construction work in progress account or similar accounts, after
deduction of reserves for renewals, replacements, and retirements (or
depreciation) as stated on such books. As used in this Section, the
term 'subsidiaries' means any corporation of which the Company or one
or more subsidiaries own or control, directly or indirectly, 50% or
more of the outstanding shares of capital stock having ordinary voting
power to elect a majority of the board of directors in such
corporation.
<PAGE> 99
96
SECTION 5.25. The Company covenants and agrees that if any parcel
of land excepted from the lien of the Indenture shall at any time
become used or useful by or to the Company in connection with its
business as an electric, gas or water company or as an electric, gas or
water utility, the same shall thereupon be and become a part of the
mortgaged and pledged property, subject to the lien of the Indenture,
and the Company will immediately execute, deliver and cause to be
recorded a supplemental indenture subjecting the same to the lien of
the Indenture."
SECTION 3.13. Reference is hereby made to certain additions to and
amendments of the "Saving and Excepting" clauses of the Original Indenture, as
hereinbefore get forth.
ARTICLE IV.
STAMPING AND REVISION OF BONDS OF SERIES A.
SECTION 4.1. The bonds of Series A now outstanding and all bonds of
Series A hereafter issued shall (unless revised as hereinafter provided) be
stamped or typewritten with a notation as follows:
"The Indenture dated as of July 1, 1950 referred to in this bond has
been amended by a First Supplemental Indenture dated as of October 1,
1951, executed and delivered with the consent of the holders of all of
the bonds at the time outstanding under the Indenture, providing, inter
alia, for the amendment of certain provisions of the Indenture and the
release by the Trustee of certain parcels of land from the lien of the
Indenture, a copy of which First Supplemental Indenture is on file with
The National Bank of Commerce in New Orleans, Trustee under the
Indenture, to which reference is hereby made.
THE NATIONAL BANK OF COMMERCE
IN NEW ORLEANS, TRUSTEE."
All outstanding bonds of Series A, and additional bonds of Series A
prior to their issuance, shall be stamped or typewritten with the above notation
as aforesaid.
SECTION 4.2. Any bonds of Series A at any time hereafter issued shall,
if the Company so elects or if the holder of such bond so requests in writing,
be in such revised form as may be approved by the Trustee so as to refer to this
First Supplemental Indenture and the amendments of the Original Indenture hereby
effected.
<PAGE> 100
97
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the
real estate, franchises and other property described or referred to in the
Original Indenture and in this First Supplemental Indenture as presently
mortgaged and pledged thereunder, subject to the exceptions stated therein and
except property which has been released from the lien of the Indenture in
accordance with its terms, and upon the initial issue of bonds of Series B and
of Series C thereunder such real estate, franchises and other property will be
free and clear of any lien prior to or on a parity with the lien of the
Indenture except as set forth in the granting clauses of the Indenture and
except permitted liens as therein defined, and the Company has good right and
lawful authority to mortgage and pledge the same as provided in and by the
Original Indenture and this First Supplemental Indenture.
SECTION 5.2. As supplemented and amended by this First Supplemental
Indenture, the Original Indenture is in all respects ratified and confirmed and
said Original Indenture and this First Supplemental Indenture shall be read,
taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or
liabilities by reason of this First Supplemental Indenture, other than as set
forth in the Original Indenture, and this First Supplemental Indenture is
executed and accepted by the Trustee subject to all the terms and conditions of
its acceptance of the trust under the Original Indenture, as fully as if said
terms and conditions were herein set forth at length.
SECTION 5.4. This First Supplemental Indenture shall be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 5.5. This First Supplemental Indenture has been dated as of
October 1, 1951 solely for convenience in fixing interest periods. The date of
actual execution hereof by each of the parties hereto is the date shown by the
acknowledgment of execution hereof by its officers.
<PAGE> 101
98
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has
caused this instrument to be signed in its corporate name by its President or
one of its Vice-Presidents and sealed with the corporate seal attested by its
Secretary or one of its Assistant Secretaries and The National Bank of Commerce
in New Orleans to evidence its acceptance of the trust hereby created has caused
this instrument to be signed in its corporate name by one of its Vice-Presidents
and sealed by its corporate seal attested by one of its Assistant Cashiers, all
as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
T. M. HAUER
[SEAL] Vice-President.
Attest:
T. P. STREET
Secretary.
Signed, sealed, acknowledged
and delivered by THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS in the
presence of:
H. S. FORD
J. R. FLAD
THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS,
By
F. C. DOYLE
[SEAL] Vice-President.
Attest:
F. PINOGES
Assistant Cashier.
Signed, sealed, acknowledged
and delivered by THE NATIONAL
BANK OF COMMERCE
IN NEW ORLEANS, in the presence
of:
H. S. FORD
J. R. FLAD
<PAGE> 102
99
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 3rd day of December, 1951, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared T. M. Hauer, a Vice-President and
T. P. Street, the Secretary of Central Louisiana Electric Company, Inc., the
grantor in the foregoing instrument, to me personally known and known to me to
be such officers, respectively, of such Company, and personally known to me to
be the identical persons whose names are subscribed and affixed to the foregoing
instrument as such officers, respectively, and who subscribed the name of the
Company thereto, and in my presence and in the presence of the undersigned
witnesses, of lawful age and domicile, severally acknowledged that the same is
their respective, free and voluntary act and deed as such officers and the free
and voluntary act and deed of said Company for the use's and purposes therein
expressed; and the said persons being each by me duly and severally sworn as
individuals did depose and say that they are such officers, respectively, of
said Company; that they know the seal of said Company; that the seal affixed to
the foregoing instrument was and is such corporate seal; that said seal was so
affixed and said instrument was so signed on behalf of said Company by the order
and authority of the Board of Directors of said Company; and that they signed
their names thereto as such officers, respectively, of said Company by like
authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of H. S.
Ford and J. R. Flad, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness:
H. S. FORD T. M. HAUER
J. R. FLAD Vice-President.
T. P. STREET
Secretary.
HARRY B. KELLEHER
[SEAL) Notary Public.
My Commission expires at death or on removal from Office.
<PAGE> 103
100
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 3rd day of December, 1951, before me the
undersigned, a Notary Public in and for said Parish and State duly qualified and
commissioned as such, personally appeared F. P. Doyle, the Vice-President, and
F. Pinoges the Assistant Cashier of The National Bank of Commerce in New
Orleans, a national banking association, duly organized and existing under the
laws of the United States of America, Trustee under the foregoing instrument, to
me personally known and known to me to be such officers, respectively, of said
Bank, and personally known to me to be the identical persons whose names are
subscribed and affixed to the foregoing instrument as such officers
respectively, and who subscribed the name of the said Bank thereto, and in my
presence and in the presence of the undersigned witnesses, of lawful age and
domicile, severally acknowledged that the same is their respective, free and
voluntary act and deed as such officers and the free and voluntary act and deed
of said Bank for the uses and purposes therein expressed; and the said persons
being each by me duly and severally sworn as individuals did depose and say that
they are such officers, respectively, of said Bank; that they know the seal of
said Bank; that the seal affixed to the foregoing instrument was and is such
corporate seal; that said seal was so affixed and said instrument was so signed
on behalf of said Bank by the order and authority of the Board of Directors of
said Bank; and that they signed their names thereto as such officers,
respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of H. S.
Ford and J. R. Flad, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness:
H. S. FORD F. C. DOYLE
J. R. FLAD Vice-President.
F. PINOGES
Assistant Cashier.
HARRY B. KELLEHER
[SEAL] Notary Public.
My Commission expires at death.
<PAGE> 104
101
THE STATE OF LOUISIANA,} ss.:
PARISH OF ORLEANS }
I, T. P. Street, Secretary of Central Louisiana Electric Company, Inc.,
a Louisiana corporation, do hereby certify that the following is a true and
correct copy of a resolution of the Board of Directors of said corporation,
unanimously adopted at a duly convened meeting of said Board of Directors held
on the 20th day of November, 1951, at which meeting a quorum was present and
acting throughout, as taken by me from the minutes of said meeting and compared
by me with the original of said resolution recorded in said minutes:
"RESOLVED, that the President or any Vice President, and the Secretary
or any Assistant Secretary, of this Company, be and they hereby are authorized
and directed to make and execute on behalf of this Company, to affix and attach
the corporate seal of this Company to, and to acknowledge on behalf of this
Company and deliver, a supplement dated as of October 1, 1951, to that certain
Indenture of Mortgage dated as of July 1, 1950, executed by the Company to The
National Bank of Commerce in New Orleans, as Trustee, in the form of the First
Supplemental Indenture presented to this meeting, subject to such changes
therein, whether of form or of substance, as may be approved by the officers
executing the same, such approval to be conclusively evidenced by their
execution thereof."
IN WITNESS WHEREOF, I have hereto set my hand and caused the corporate
seal of said Central Louisiana Electric Company, Inc. to be hereunto affixed,
this 3rd day of December, 1951.
T. P. STREET
[SEAL] Secretary of Central Louisiana
Electric Company, Inc.
<PAGE> 105
102
Recording data First Supplemental Indenture of Mortgage of Central
Louisiana Electric Company, Inc. to The National Bank of Commerce in New
Orleans, dated as of October 1, 1951.
AS SHOWN By THE RECORDERS' CERTIFICATES, THE FOREGOING FIRST SUPPLEMENTAL
INDENTURE OF MORTGAGE IS DULY RECORDED IN THE FOLLOWING PARISHES IN THE STATE
OF LOUISIANA:
Mortgage Registry
Parish Book Folio Number
- ------ -------- ----- ---------
Acadia 103 416 248737
Allen 38 141 106833
Avoyelles Special-M 199 141592
Beauregard 52 59 106707
Calcasieu 249 59 514592
DeSoto 54 341 220630
Evangeline 61 193 134713
Grant Special-3 459 14687
Iberia A-124 1ll 47704
Lafayette N-20 7 269023
Natchitoches 203-A 523 MA-936
Rapides 330 44 359267
Red River 40 149 78981
Sabine 28 165 141767
St. Landry 153 69 310683
St. Mary 137 587 59890
St. Martin 91 123 49208
St. Tammany 95 313 100643
Vernon 202 279 187563
Washington 108 72-A None
Webster 83 355 121492
<PAGE> 1
EXHIBIT 4(a)(3)
================================================================================
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
---------------------------
Second Supplemental Indenture
DATED AS OF JUNE 1, 1952
---------------------------
Issue of First Mortgage Bonds, Series D, 3 3/4%
Due June 1, 1982
---------------------------
Supplemental to Indenture of Mortgage and Deed of Trust
Dated as of July 1, 1950
================================================================================
PRESS OF ALLEN, LANE & SCOTT, PHILADELPHIA
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE, dated as of June 1, 1952, between
Central Louisiana Electric Company, Inc., a corporation duly organized and
existing under and by virtue of the laws of the State of Louisiana (hereinafter
sometimes called the "Company"), party of the first part, and The National Bank
of Commerce in New Orleans, a national banking association duly organized and
existing under and by virtue of the laws of the United States of America, as
Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter
sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of
Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to
the Trustee, to secure the Company's First Mortgage Bonds, limited to
$100,000,000 aggregate principal amount at any one time outstanding and issuable
in series, from time to time, in the manner and subject to the conditions set
forth in the Original Indenture, and by said Original Indenture granted and
conveyed unto the Trustee, upon the trusts, uses and purposes specifically
therein set forth, certain real estate, franchises and other property therein
described, including property acquired after the date thereof except as therein
otherwise provided; and
WHEREAS, the Company has heretofore issued under the Original Indenture
$5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%
(hereinafter sometimes called "bonds of Series A"), of which $5,445,000
principal amount remains outstanding as of the date hereof; and
WHEREAS, the Original Indenture provides for the issuance of bonds
thereunder in one or more series, the form of each series of bonds and of the
coupons to be attached to the coupon bonds to be substantially in the forms set
forth therein with such omissions, variations, and insertions as are authorized
or permitted by the Original Indenture and determined and specified by the Board
of Directors of the Company; and
WHEREAS, the Company heretofore executed and delivered its First
Supplemental Indenture (hereinafter called the " First Supplemental Indenture")
dated as of October 1, 1951, to the Trustee to
<PAGE> 3
2
supplement the Original Indenture and to modify and amend certain of its
provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture
as supplemented and amended by the First Supplemental Indenture, $4,844,000
principal amount of its First Mortgage Bonds, Series B, 3 3/4% (hereinafter
sometimes called "bonds of Series B"), and $960,000 principal amount of its
First Mortgage Bonds, Series C, 3 3/4% (hereinafter sometimes called "bonds of
Series C"), all of which bonds of Series B and Series C remain outstanding as of
the date of this Second Supplemental Indenture (hereinafter called "Second
Supplemental Indenture"), the Original Indenture as amended or supplemented by
all indentures supplemental thereto, including the First Supplemental Indenture
and this Second Supplemental Indenture being hereinafter referred to as the
"Indenture"; and
WHEREAS, the Company, by appropriate resolutions adopted by its Board
of Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a fourth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series D, 3 3/4%" (herein sometimes called "bonds of Series D"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the bonds of
Series D, and the interest coupons to be attached to the coupon bonds of said
series, are to be substantially in the following forms, respectively:
[FORM OF COUPON BOND OF SERIES D]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bonds, Series D, 3/4%
Due June 1, 1982
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
holder hereof, on June 1,
<PAGE> 4
3
1982, at the office or agency of the Company in the City of New Orleans,
Louisiana, One Thousand Dollars ($1000) in such coin or currency of the United
States of America as at the time of payment shall be legal tender for public and
private debts, and to pay interest thereon semi-annually on June I and December
1 of each year at the rate of three and three-quarter per centum (3 3/4%) per
annum, at such office or agency in like coin or currency, from June 1, 1952,
until this bond shall mature, according to its terms or on prior redemption or
by declaration or otherwise, but only upon presentation and surrender of the
coupons for such interest installments as are evidenced thereby, hereto
appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance with the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (hereinafter called the "Original Indenture") dated as of July
1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and
amended by a First Supplemental Indenture dated as of October 1, 1951, and a
Second Supplemental Indenture dated as of June 1, 1952, executed by the Company
to the Trustee, to which Original Indenture, First Supplemental Indenture,
Second Supplemental Indenture and all other indentures supplemental thereto
(said Original Indenture as so supplemented and amended being herein called the
"Indenture") reference is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Company in respect of such security, the rights,
duties and immunities of the Trustee, and the terms and conditions upon which
the bonds are, and are to be, secured. As provided in the Indenture, the bonds
may be issued in series for various principal sums, may bear different dates and
mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided or permitted. This bond is one of
the bonds described in the Indenture and designated therein as "First Mortgage
Bonds, Series D, 3 3/4%" (hereinafter referred to as the "bonds of Series D").
<PAGE> 5
4
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any outstanding bond of the lien of the Indenture on any
of the mortgaged and pledged property without the consent of the holder of each
bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such consent is made upon this bond. No
reference herein to the Indenture and no provision of this bond or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay at the stated or accelerated maturity herein and in
the Indenture provided, the principal of and interest and premium, if any, on
this bond at the time and place and at the rate and in the coin or currency
herein prescribed.
The coupon bonds of Series D are issuable in the denomination of
$1,000. The registered bonds without coupons of Series D are
<PAGE> 6
5
issuable in denominations of $1,000 and any multiple of $1,000. At the office or
agency to be maintained by the Company in said City of New Orleans and in the
manner, subject to the limitations, and upon payment of the charges provided in
the Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series D are entitled to the benefit of the Sinking Fund
provided for in Article II of the Second Supplemental Indenture.
The bonds of Series D may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said City of New Orleans, the first
publication in each case to be not less than thirty (30) days and not more than
sixty (60) days before such redemption date (provided, however, that if all the
bonds of Series D at the time outstanding shall be registered bonds without
coupons or coupon bonds registered as to principal, such publication need not be
made, but, in lieu thereof, such notice may be given by mailing the same to each
registered holder of a bond so to be redeemed directed to his registered address
not less than thirty (30) days and not more than sixty (60) days before the
redemption date) ; all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series A provided for in Article II of the Second Supplemental Indenture or
moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by the Trustee in connection with any
release of property
<PAGE> 7
6
upon any acquisition thereof by any municipal corporation or other governmental
subdivision or governmental body or public authority, the bonds of Series D are
redeemable in such coin or currency of the United States of America as at the
time of payment shall be legal tender for public and private debts, at the
redemption price at the time applicable, as set forth in Column A of the
following schedule, and if redeemed otherwise than by the application of such
moneys, the bonds of Series D are redeemable in like coin or currency, at the
redemption price at the time applicable, as set forth in Column B of the
following schedule, together with, in each ease, interest accrued to the date
fixed for redemption:
<TABLE>
<CAPTION>
Redemption Price
(Percentage of Principal Amount)
-------------------------------
If redeemed during the period Col. A Col. B
-------------------------------------- --------- ----------
<S> <C> <C>
June 1, 1952--May 31, 1953............... 103.12 106.00
June 1, 1953--May 31, 1954............... 103.06 105.80
June 1, 1954--May 31, 1955............... 103.00 105.59
June 1, 1955--May 31, 1956............... 102.93 105.38
June 1, 1956--May 31, 1957............... 102.87 105.18
June 1, 1957--May 31, 1958............... 102.80 104.97
June 1, 1958--May 31, 1959............... 102.73 104.76
June 1, 1959--May 31, 1960............... 102.65 104.56
June 1, 1960--May 31, 1961............... 102.58 104.35
June 1, 1961--May 31, 1962............... 102.50 104.14
June 1, 1962--May 31, 1963............... 102.42 103.94
June 1, 1963--May 31, 1964............... 102.33 103.73
June 1, 1964--May 31, 1965............... 102.25 103.52
June 1, 1965--May 31, 1966............... 102.16 103.32
June 1, 1966--May 31, 1967............... 102.06 103.11
June 1, 1967--May 31, 1968............... 101.96 102.90
June 1, 1968--May 31, 1969............... 101.86 102.70
June 1, 1969--May 31, 1970............... 101.76 102.49
June 1, 1970--May 31, 1971............... 101.65 102.28
June 1, 1971--May 31, 1972............... 101.54 102.08
June 1, 1972--May 31, 1973............... 101.42 101.87
June 1, 1973--May 31, 1974............... 101.30 101.66
June 1, 1974--May 31, 1975............... 101.18 101.46
June 1, 1975--May 31, 1976............... 101.05 101.25
June 1, 1976--May 31, 1977............... 100.92 101.04
June 1, 1977--May 31, 1978............... 100.7F 100.81
June 1, 1978--May 31, 1979............... 100.63 100.63
June 1, 1979--May 31, 1980............... 100.48 100.48
June 1, 1980--May 31, 1981............... 100.33 100.33
June 1, 1981--May 31, 1982............... 100.00 100.00
</TABLE>
<PAGE> 8
7
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
The principal hereof may be declared or may become clue prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as
to principal at the office or agency of the Company in said City of New Orleans,
and such registration noted hereon, after which no valid transfer hereof can be
made, except at such office or agency, until after registered transfer to
bearer, but after such registered transfer to bearer this bond shall be again
transferable by delivery. Such registration, however, shall not affect the
negotiability of the coupons, which shall always remain payable to bearer, be
treated as negotiable and pass by delivery. The Company and the Trustee, any
paying agent and any bond registrar may deem and treat the bearer of this bond
if it is not registered as to principal, or, if this bond is registered as
herein authorized, the person in whose name this bond is registered, as the
absolute owner hereof, and the bearer of any coupon hereunto appertaining, as
the absolute owner thereof, whether or not this bond or such coupon shall be
overdue, for the purpose of receiving payment and for all other purposes and
neither the Company nor the Trustee nor any paying agent nor any bond registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in
<PAGE> 9
8
respect hereof, or based on or in respect of the Indenture, against any
incorporator or any past, present or future subscriber to the capital stock,
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, an such liability of incorporators,
subscribers, stockholders, officers and directors, as such, being waived and
released by the holder and owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or
obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
the Trustee under the Indenture, or its successor thereunder, shall have signed
the certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
interest coupons bearing the facsimile signature of its Treasurer to be attached
hereto, and this bond to be dated June 1, 1952.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
Attest: President.
Secretary.
(Form of Coupon for Bonds of Series D)
$18.75
On the first day of , 19 , unless the bond hereinafter mentioned
shall have been called for previous redemption and payment of the redemption
price thereof shall have been duly provided
<PAGE> 10
9
for, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. will pay to bearer, upon surrender
of this coupon, at its office or agency in the City of New Orleans, Louisiana,
eighteen dollars and seventy-five cents in such coin or currency of the United
States of America as at the time of payment shall be legal tender for public and
private debt, being six months' interest then due on its First Mortgage Bond,
Series D, 3 3/4%, No.
Treasurer.
[FORM of REGISTERED BOND OF SERIES D.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series D, 3 3/4%
Due June 1, 1982
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, on June 1, 1982, at the office or agency
of the Company in the City of New Orleans, Louisiana, Dollars ($ )
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for public and private debts, and to pay interest
thereon semi-annually on June 1 and December 1 of each year, at the rate of
three and three-quarter per centum (3 3/4%) per annum, at such office or agency,
in like coin or currency, from the interest payment date next preceding the date
of this bond, or if this bond be dated prior to December 1, 1952 then from June
1, 1952, until this bond shall mature, according to its terms or on prior
redemption or by declaration or otherwise.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance
<PAGE> 11
10
with the provisions of the Indenture may afford additional security for the
bonds of any specific series) by an indenture (hereinafter called the "Original
Indenture") dated as of July 1, 1950, executed by the Company to THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS, as Trustee (hereinafter called the "Trustee"),
as supplemented and amended by a First Supplemental Indenture dated as of
October 1, 1951, and a Second Supplemental Indenture dated as of June 1, 1952,
executed by the Company to the Trustee, to which Original Indenture, First
Supplemental Indenture, Second Supplemental Indenture and all other indentures
supplemental thereto (said Original Indenture as so supplemented and amended
being herein called the "Indenture") reference is hereby made for a description
of the property mortgaged and pledged, the nature and extent of the security,
the rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, secured. As provided in the
Indenture, the bonds may be issued in series for various principal sums, may
bear different dates and mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided or
permitted. This bond is one of the bonds described in the Indenture and
designated therein as "First Mortgage Bonds, Series D, 33 3/4%" (hereinafter
referred to as the "bonds of Series D").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by
<PAGE> 12
11
redemption, or otherwise modify the terms of payment of any bond, without the
consent of the holder of each bond so affected, or (ii) reduce the percentage of
bonds, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all bonds then outstanding, or
(iii) permit the creation of any lien ranking prior to or equal with the lien of
the Indenture on any of the mortgaged and pledged property without the consent
of the holders of all bonds then outstanding, or (iv) deprive the holder of any
outstanding bond of the lien of the Indenture on any of the mortgaged and
pledged property without the consent of the holder of each bond so affected. Any
such consent by the holder of this bond (unless effectively revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon all
future holders of this bond, irrespective of whether or not any notation of such
consent is made upon this bond. No reference herein to the Indenture and no-
provision of this bond or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the Indenture provided, the principal of and
interest and premium, if any, on this bond at the time and place and at the rate
and in the coin or currency herein prescribed.
The coupon bonds of Series D are issuable in the denomination of
$1,000. The registered bonds without coupons of Series D are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series D are entitled to the benefit of the Sinking Fund
provided for in Article II of the Second Supplemental Indenture.
The bonds of Series D may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture,
<PAGE> 13
12
on any date prior to maturity, as a whole or from time to time in part, upon
publication at least once in each of four successive calendar weeks, upon any
business day of each such calendar week, of notice of such redemption in a
newspaper printed in the English language and customarily published on each
business day and of general circulation in the Borough of Manhattan, The City of
New York, New York, and like publication in a similar newspaper of said City of
New Orleans, the first publication in each case to be not less than thirty (30)
days and not more than sixty (60) days before such redemption date (provided,
however, that if all the bonds of Series D at the time outstanding shall be
registered bonds without coupons or coupon bonds registered as to principal,
such publication need not be made, but, in lieu thereof, such notice may be
given by mailing the same to each registered holder of a bond so to be redeemed
directed to his registered address not less than thirty (30) days and not more
than sixty (60) days before the redemption date); all as provided in the
Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series D, provided for in Article II of the Second Supplemental Indenture or
moneys in the Depreciation Fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by the Trustee in connection with any
release of property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public authority, the
bonds of Series D are redeemable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for public and
private debts, at the redemption price at the time applicable, as set forth in
Column A of the following schedule, and if redeemed otherwise than by the
application of such moneys, the bonds of Series D are redeemable in like coin or
currency, at the redemption price at the time applicable, as set forth in Column
B of the following schedule, together with, in each case, interest accrued to
the date fixed for redemption:
(There will be inserted here in all registered bonds without
coupons of Series D, the same tables of redemption prices and
corresponding dates as are specified for such redemption in the form of
coupon bond of Series D hereinbefore set forth.)
<PAGE> 14
13
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in said City of New Orleans, upon surrender and
cancellation of this bond, and upon payment, if the Company shall require it, of
the transfer charges prescribed in the Indenture, and thereupon, a new
registered bond or bonds without coupons of authorized denominations of the same
series and for the same aggregate principal amount will be issued to the
transferee in exchange herefor as provided in the Indenture. The Company and the
Trustee, any paying agent and any bond registrar may deem and treat the person
in whose name this bond is registered as the absolute owner hereof, whether or
not this bond shall be overdue, for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on. or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the
<PAGE> 15
14
capital stock, stockholder, officer or director, as such, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors, as such, being waived and
released by the holder and owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture,
or its successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
Attest: President.
Secretary.
and
WHEREAS, all acts and things prescribed by law and by the charter and
by-laws of the Company necessary to make the bonds of Series D, when executed by
the Company and authenticated by the Trustee, as in the Original Indenture
provided, valid, binding and legal obligations of the Company, entitled in all
respects to the security of the said Original Indenture and indentures
supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original
Indenture for such further instruments and indentures supplemental to the
Original Indenture, as may be necessary or proper to
<PAGE> 16
15
carry out more effectually the purposes of the Original Indenture, and to
subject to the lien of the Indenture any property acquired after the date of the
Original Indenture and intended to be covered thereby, with the same force and
effect as though included in the granting clauses thereof, and to add such
further covenants, restrictions or conditions for the protection of the
mortgaged and pledged property and the holders of the bonds as the Board of
Directors of the Company and the Trustee shall consider to be for the protection
of the holders of the bonds, and to set forth the terms and provisions of any
series of bonds to be issued under the Indenture and the form of the bonds and
coupons of such series; and the Company since the date of the Original Indenture
has acquired additional property not heretofore specifically subjected to the
lien of the Original Indenture; and it is desired to add certain further
covenants, restrictions and conditions for the protection of the mortgaged and
pledged property and the holders of the bonds, as provided in this Second
Supplemental Indenture, which the Board of Directors of the Company and the
Trustee consider to be for the protection of the holders of the bonds; and the
Company desires to issue bonds of Series D; and the Company desires, pursuant to
sub-section (e) of Section 17.01 to modify the language of the first paragraph
of Section 14.01 of the Indenture so as to make the Indent-Lire comply with the
requirement of the Trust Indenture Act of 1939 that the Trustee thereunder shall
at all times be a corporation; and the Company therefore deems it advisable to
enter into this Second Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been duly authorized by the Board of Directors of the Company at a
meeting duly called and held according to law, and all conditions and
requirements necessary to make this Second Supplemental Indenture a valid,
binding and legal instrument in accordance with its terms, for the purposes
herein expressed, and the execution and delivery hereof, in the form and terms
hereof, have been in all respects duly authorized;
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH: That
Central Louisiana Electric Company, Inc., by way of further assurance and in
consideration of the premises and of the
<PAGE> 17
16
acceptance by the Trustee of the trusts hereby created and of one dollar to it
duly paid by the Trustee at or before the ensealing and delivery of these
presents, the receipt whereof is hereby acknowledged, and in order to further
secure the payment of the principal of, the premium, if any, and the interest on
all bonds at any time issued and outstanding under the Indenture, according to
their tenor and effect, and the performance and observance by the Company of all
the covenants and conditions herein and therein contained, and of said bonds,
has executed and delivered this Second Supplemental Indenture, and has granted,
bargained, sold, aliened, remised, released, conveyed, assigned, transferred,
mortgaged, hypothecated, affected, pledged, set over and confirmed, and by these
presents does grant, bargain, sell, alien, remise, release, convey, assign,
transfer, mortgage, hypothecate, affect, pledge, set over and confirm, unto The
National Bank of Commerce in New Orleans, as Trustee, and to its successors in
the trust, and to its and their assigns forever, all the following described
properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible,
owned by the Company on the date of the execution hereof or which may be
hereafter acquired by it (except such property now owned or hereafter acquired
as is expressly excepted from the lien of the Indenture by the terms of the
Original Indenture, the First Supplemental Indenture or this Second Supplemental
Indenture).
The property covered by the lien of the Indenture shall include
particularly, among other property without prejudice to the general and
particular descriptions of property contained in the Original Indenture, in the
First Supplemental Indenture and in this Second Supplemental Indenture, or to
the generality of the language in the Indenture or hereinbefore or hereinafter
contained, the following described property:
I.
A certain piece, parcel or tract of land, situated in the Town of
Leesville, Vernon Parish, Louisiana, and being more particularly described as
follows, to-wit: Beginning at the Southeast corner of Lot Ten (10) of Block Six
(6) of Allis First Addition to said Town of Leesville, Louisiana, and run West
100 feet; thence North 60 feet; thence East 100 feet; thence South 60 feet to
the point of
<PAGE> 18
17
beginning; the East and South lines of.,the property herein described coinciding
with the East and South lines of Lot Ten (10) of said Block Six (6) of said
Allis First Addition to said Town of Leesville, Louisiana.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Rose S. Fertitta by act of sale dated April 9, 1952, recorded in
Conveyance Book 208, page 492, records of Vernon Parish, Louisiana.
There is located on said above described parcel of land an electric
substation.
A certain piece, parcel or tract of land situated in the McComb
Addition to the City of Lafayette, Lafayette Parish, Louisiana, and being the
end (nearest Plum Street) of that certain triangular parcel of land formed by
the intersection of Clay Street with Fifteenth and Sixteenth Streets and the
merger of the latter two streets; said parcel herein described being formed by
running a line parallel with the Clay Street line of the triangle and located 15
feet Westerly from the Plum Street end thereof, and comprising all of the
triangle between the line so formed and the end of the triangle nearest Plum
Street.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Frank Guidry by deed dated March 19, 1952, recorded in Conveyance Book
Q-20, page 137, records of Lafayette Parish, Louisiana.
There is located on the above described parcel of land a gas regulator
station.
A certain piece or parcel of land, together with all rights, ways,
privileges and appurtenances thereto belonging or appertaining, situated in the
Parish of Rapides, State of Louisiana, being a part of Lot Three (3) of the Oak
Isle Plantation in Section 31, Township 4 North, Range 2 West, said parcel of
land having an area of 0.223 acres and fronting 100 feet on U. S. Highway No.
20, and being more particularly described as follows, to-wit: Start at the
Southeast corner of Section 32, Township 4 North, Range 2 West, and run North 24
degrees East along the boundary line between Sections 32 and 33, Township 4
North, Range 2 West, a distance of 1280.3 feet to the Southern. boundary of the
100 foot right of way of. U. S. Highway No. 20; thence run North 65 degrees 19
minutes West along the Southern boundary of the 100 foot right of way of said
<PAGE> 19
18
highway and its projection a distance of 1676.57 feet; thence continue along the
Southern boundary of the right of way of said Highway North 66 degrees West a
distance of 18 feet to the point of beginning; from said point of beginning so
established continue thence along the Southern boundary of the right of way of
said Highway North 66 degrees West a distance of 100 feet; thence run South 10
degrees 20 minutes West a distance of 100 feet; thence run South 66 degrees East
a distance of 100 feet; thence run North 10 degrees 20 minutes East a distance
of 100 feet to the point of beginning; said parcel of land being, as aforesaid,
in Section 31, Township 4 North, Range 2 West, Rapides Parish, Louisiana; all as
is more particularly shown by plat of survey made by Irion Lafargue, Registered
Surveyor, dated July 25, 1951.
Being that property acquired by Central Louisiana Electric Company,
Inc. from Mrs. Eulalie S. Cappel, et al, by deed dated September 12, 1951,
recorded in Conveyance Book 431, page 514, records of Rapides Parish, Louisiana.
There is located on the above described parcel of land an electric
substation.
II.
All real estate or interests therein, now owned or which may be
hereafter acquired by the Company for use or which may be used by it in
connection with its business as an electric, gas and water company, together
with all of the right, title, and interest of the Company, now owned or
hereafter acquired in and to any and all works, plants, buildings structures,
erections, and constructions now or hereafter placed upon any of the real estate
mentioned, described or referred to as being subject to the lien of the
Indenture, with the fixtures, tenements, hereditaments, and appurtenances
thereunto appertaining or belonging.
III.
The Following Described Property, Wherever Situate:
First: The electric generating plants and electric transmission and/or
distribution systems now or hereafter owned by the Company, and any electric
generating plants and electric transmission and/or distribution systems
hereafter constructed or acquired by the Company, and any additions to or
extensions of any, such existing
<PAGE> 20
19
or future electric generating plants and/or electric transmission and/or
distribution systems, together with all engines, dynamos, motors, generators,
boilers, turbines, pole lines, poles, wires, cross arms, insulators,
transformers, meters, buildings, erections, structures, stations, substations,
power houses, power producing and power transmitting equipment, water, water
rights, water wheels, headworks, race-ways, hydraulic works, hydro-electric
plants, cables, conduits, instruments, apparatus, appliances, machinery,
facilities, fixtures and all other property used or provided for use in the
construction, repair, maintenance and/or operation thereof, both that now owned
and that which may be hereafter acquired by the Company, and together also with
all the rights, privileges, franchises, easements, licenses, ordinances, rights
of way, liberties, immunities and permits of the Company, howsoever conferred or
acquired, and whether now owned or hereafter to be acquired, with respect to the
construction, maintenance repair and/or operation of said electric generating
plants and electric transmission and/or distribution systems, and each of them,
and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering
and/or transmission and/or distribution systems now owned by the Company, and
any gas generating plants, gas storage plants and/or gas transmission and/or
distribution systems hereafter constructed or acquired by the Company, and any
additions to or extensions of any such existing or future plants and systems,
together with the buildings, erections, structures, generating and purifying
apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines,
connections, service pipes, meters, conduits, instruments, appliances,
apparatus, facilities, machinery, fixtures and all other property used or
provided for use in the construction, maintenance, repair and/or operation
thereof, both that now owned and that which may be here after acquired by the
Company, and together also with all rights, privileges, rights of way,
franchises, licenses, easements, grants, liberties, immunities, permits and
ordinances of the Company, howsoever conferred or acquired, and whether now
owned or hereafter to be acquired, with respect to the construction,
maintenance, repair,. and/or operation of said gas generating plants, gas
storage plants and gas gathering and/or transmission and/or distribution
systems, and each of them, and any additions thereto and extensions thereof.
<PAGE> 21
20
Third: The waterworks plants and water distribution systems now owned
by the Company, and any waterworks plants and/or waterworks distribution systems
hereafter constructed or acquired by the Company together with the buildings,
structures, erections, pumps, pumping machinery, reservoirs, filters,
filter-galleries, chlorinating equipment, tanks, wells, water rights, water
supply, water mains, hydrants, pipelines, service pipes, meters, standpipes,
engines, boilers, apparatus, appliances, facilities, machinery, equipment,
fixtures and all other property used or provided for use in the construction,
maintenance, repair and/or operation thereof, both that now owned and that which
may be hereafter acquired by the Company, and together also with all of the
rights, privileges, rights of way, franchises, licenses, easements, permits,
liberties, immunities, grants and ordinances of the Company, howsoever conferred
or acquired, and whether now owned or hereafter to be acquired, with respect to
the construction, maintenance, repair and operation of said plants and systems
and each of them, and any additions thereto and extensions thereof.
To HAVE AND To HOLD all such properties, real, personal and mixed,
granted, bargained, sold, aliened, remised, released, conveyed assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto the Trustee and its
successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of
way for pole lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens securing indebtedness which
has neither been assumed by the Company nor upon which it customarily pays
interest charges, existing solely upon real property, or rights in and relating
thereto, which real property or rights have been or may be acquired for
right-of-way purposes, to liens of taxes and assessments for the current year
and taxes and assessments not yet due, to alleys, streets and highways that may
run across or encroach upon said lands, and to liens, if any, incidental to
construction; and, with respect to any property which the Company may hereafter
acquire, to all terms, conditions, agreements, covenants, exceptions and
reservations expressed or provided
<PAGE> 22
21
in such deeds and other instruments, respectively, under and by virtue of which
the Company shall hereafter acquire the same and to any and all liens existing
thereon at the time of such acquisition within the restrictions contained in the
Indenture; and subject also to other liens and encumbrances of the character
defined in the Indenture as "permitted liens" insofar as the same may attach to
any of the property embraced herein;
SAVING AND EXCEPTING, however, from the properties mortgaged and
pledged by the Indenture (whether now owned by the Company or hereafter acquired
by it) all bills, notes and accounts receivable, cash on hand and in bank,
contracts, merchandise and appliances kept for purposes of sale, and all bonds,
obligations, evidences of indebtedness, shares of stock and other securities,
and certificates or evidences of interest therein-other than any of the
foregoing which may be hereafter specifically transferred or assigned to or
pledged or deposited with the Trustee under the Indenture or required by the
provisions of the Indenture so to be-and all office furniture and equipment,
motor vehicles, tools, testing equipment and consumable materials and supplies;
provided, however, that, if upon the happening of an event of default as in the
Indenture defined, the Trustee or any receiver appointed under the Indenture
shall enter upon and take possession of the mortgaged property, the Trustee or
such receiver may, to the extent permitted by law, at the same time likewise
take possession of any and all of the property described in this paragraph then
on hand and use and administer the same to the extent as if such property were
part of the mortgaged property, unless and until such event of default shall be
remedied or waived and possession of the mortgaged property restored to the
Company, its successors or assigns.
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged
and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company
and not used by it or useful in connection with its business as an electric, gas
or water company or as an electric, gas or water utility.
<PAGE> 23
22
(b) All machinery, equipment, fixtures, supplies and materials now used
or hereafter acquired for use in connection with the ice and cold storage, ice
cream, dairy, and/or soft drink bottling business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in
connection with the ice and cold storage, ice cream, dairy, and/or soft drink
bottling business of the Company, together with an tires, spare parts, materials
and supplies appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now
owned or hereafter acquired, not used by or useful to the Company in its
business as an electric, gas or water company or as an electric, gas or water
utility, not located on any parcel of real estate now owned or hereafter
acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and
replacements now or hereafter made to or acquired for or in connection with the
property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the
Original Indenture and the First Supplemental Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal, of and interest on all said bonds, together with the premium, if any,
payable on such of said bonds as may have been called for redemption prior to
maturity, or shall provide, as permitted by the Indenture, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon for principal, interest and premium, if any, and if the Company shall
also pay or cause to be paid all other sums payable under the Indenture by it,
then the Indenture and the estate and rights thereby granted shall cease,
determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the
Company and the Trustee, for the benefit of those who shall hold said bonds and
coupons or any of them, as follows:
<PAGE> 24
23
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES D.
SECTION 1.1. The fourth series of bonds to be issued under the
Indenture and secured thereby is hereby created, which shall be designated, and
distinguished from the bonds of all other series, by the title "First Mortgage
Bonds, Series D, 3 3/4%", elsewhere herein referred to as the "bonds of Series
D".
The aggregate principal amount of the bonds of Series D is not limited
except as provided in the Indenture.
The bonds of Series D shall be dated, and shall bear interest from,
June 1, 1952, except as provided in Section 2.03 of the Indenture with respect
to registered bonds without coupons, and shall be due June 1, 1982, and shall
bear interest at the rate of three and three-quarter per centum, (3 3/4%) per
annum, payable semi-annually on the first day of June and the first day of
December in each year, until maturity. The principal of and the premium (if any)
and the interest on the bonds of Series D shall be payable at the office or
agency of the Company in the City of New Orleans, Louisiana, in such coin or
currency of the United States of America as, at the time of payment, shall be
legal tender for public and private debts.
The bonds of Series D shall be redeemable, either at the option of the
Company or pursuant to any provision of the INDENTURE REQUIRing such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice as provided in Section 8.02 of the Indenture, published in a
newspaper printed in the English language and customarily published on each
business day and of general circulation in the Borough of Manhattan, The City of
New York, New York, and like publication in a similar newspaper of the City of
New Orleans, at least once in each of four (4) successive calendar weeks upon
any business day of each such calendar week, the first publication to be not
less than thirty (30) days and not more than sixty (60) days before such
redemption date (or upon mailing of such notice of redemption as provided in the
first paragraph of Section 8.02 of the Indenture in the event such paragraph
shall be applicable). If redeemed by the application of moneys in the Sinking
Fund for bonds of Series D provided for in Article II of this Second
Supplemental Indenture or moneys in the Depreciation Fund provided for in
Section 5.07 of the Indenture, or by the application of moneys
<PAGE> 25
24
received by the Trustee in connection with any release of property upon any
acquisition thereof by any municipal corporation or other governmental
subdivision or governmental body or public authority, the bonds of Series D are
redeemable at the redemption price at the time applicable specified in Column A
of the schedule contained in the form of coupon bond of Series D set forth in
the recitals hereof, together with interest accrued to the date fixed for
redemption. If redeemed otherwise than by the application of such moneys, the
bonds of Series D are redeemable at the redemption price at the time applicable
specified in Column B of said schedule, together with interest accrued to the
date fixed for redemption.
Coupon bonds of Series D shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds without
coupons of Series D shall be issuable in denominations of $1,000 and any
multiple of $1,000. Bonds of Series D shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIES D.
SECTION 2.1. The Company covenants and agrees that so long as any of
the bonds of Series D shall be outstanding it will pay to the Trustee, as and
for a sinking fund for the bonds of Series D, on the first day of June in the
year 1953 and on the first day of June in each year thereafter, an amount of
cash equal to one per centum (1%) of the greatest principal amount of bonds of
Series D at any one time outstanding under the Indenture; provided, however,
that the amount of cash payable to the Trustee on any such date pursuant to the
provisions of this Section shall be reduced by an amount equal to the aggregate
principal amount of bonds of Series D then being delivered by the Company to the
Trustee, but no bonds of Series D shall be delivered to the Trustee which have
not been sold in a bona fide transaction and reacquired by the Company.
All cash paid to the Trustee pursuant to the provisions of this Section
shall, upon request of the Company and to the extent practicable, be applied
promptly by the Trustee to the purchase of bonds
<PAGE> 26
25
of Series D in accordance with- the provisions of Section 8.06 of the Indenture.
If the Trustee on August 20 of any year shall hold cash under the provisions of
this Section amounting to $15,000 or more (or any amount less than $15,000 if
the Company so elects) not applied to the purchase of bonds of Series D as above
provided for, the Trustee shall apply all cash, to the extent practicable, then
held under the provisions of this Section to the redemption, on the next
succeeding October 1 of bonds of Series D, in the manner and subject to the
conditions provided in such bonds and in Article VIII of the Indenture; and for
such purpose the Trustee may publish notice of redemption in the name of the
Company or in its own name as Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on
demand, the compensation of the Trustee in administering the sinking fund as
provided in this Article II, together with the Trustee's expense% including cost
of advertisement of redemption notices and any other advertisements and other
lawful charges, if any, and any accrued interest and premium paid or payable
with respect to any such bonds of Series D purchased or redeemed as provided for
in Section 2.1 it being intended that the aforesaid compensation, expenses,
charges, accrued interest and premium shall not be charged against sinking fund
moneys.
SECTION 2.3. All bonds of Series D delivered to the Trustee for the
purpose of taking a credit pursuant to the provisions of Section 2.1, or
purchased or redeemed pursuant to the provisions of Section 2.1, shall be
forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series
D are outstanding, it will not at any time declare or pay any dividend on its
Common Stock or make any distribution to its Common Stockholders (other than
dividends or distributions payable solely in its Common Stock) or purchase or
otherwise acquire for value any of its Common Stock, except out of (1) earned
surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of
earned surplus accumulated prior to January 1, 1950 (such aggregate amount
<PAGE> 27
26
being hereinafter called "unrestricted earned surplus"), nor unless after the
payment of such dividend or the making of such distribution, purchase or
acquisition the sum of (a) the provision for property retirements or
depreciation made by the Company out of income or earned surplus, during the
period from July 1, 1950, to the end of the calendar year next preceding the
date of payment of such dividend or the making of such distribution, purchase or
acquisition and (b) the unrestricted earned surplus, if any, of the Company
shall be not less than the aggregate of the minimum provision for property
retirements or depreciation determined as provided in Section 1.05 of the
Original Indenture, for the period from July 1, 1950, to the end of the calendar
year next preceding the date of payment of such dividend or the making of such
distribution, purchase or acquisition. For the purposes of this Section, the
earned surplus of the Company accumulated after December 31, 1949, shall be
determined in accordance with sound accounting practice, and, so long as and to
the extent that there shall remain any earned surplus of the Company accumulated
prior to January 1, 1950, other than unrestricted earned surplus, such amount
shall be available for all surplus charges other than such dividends or the
making of such distribution, purchase or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are
outstanding under the Original Indenture no Indenture or Indentures supplemental
to the Original Indenture will be entered into by the Company unless such
Supplemental Indenture shall contain provisions which are in compliance with the
Trust Indenture Act of 1939 as then in effect; provided, however, that this
provision shall not be effective and binding upon the Company if all of the
bonds then outstanding and then to be issued under the Original Indenture as
supplemented and amended by all other supplemental indentures and by such
supplemental indenture then to be entered into, shall either be exempt
securities as defined in the Trust Indenture Act of 1939 as then in effect, or
are to be issued in a transaction exempt from the provisions of said Act.
ARTICLE IV.
AMENDMENT OF ORIGINAL INDENTURE.
SECTION 4.1. Pursuant to the provisions of sub-section (e) of Section
17.01 of the Indenture and in order to make the Original
<PAGE> 28
27
Indenture as supplemented and amended by the First Supplemental Indenture and by
this Second Supplemental Indenture comply with the requirement of the Trust
Indenture Act of 1939, the first paragraph of Section 14.01 of the Indenture is
hereby modified and amended by inserting the words ", which shall be a
corporation and which shall be" after the word "company' in the second line of
said paragraph.
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the
real estate, franchises and other property described or referred to in the
Indenture as presently mortgaged and pledged thereunder, subject to the
exceptions stated therein and except property which has been released from the
lien of the Indenture in accordance with its terms, and upon the initial issue
of bonds of Series D thereunder such real estate, franchises and other property
will be free and clear of any lien prior to or on a parity with the lien of the
Indenture except as set forth in the granting clauses of the Indenture and
except permitted liens as therein defined, and the Company has good right and
lawful authority to mortgage and pledge the same as provided in and by the
Indenture.
SECTION 5.2. As supplemented and amended by this Second Supplemental
Indenture, the Original Indenture and the First Supplemental Indenture are in
all respects ratified and confirmed and said Original Indenture, First
Supplemental Indenture and this Second Supplemental Indenture shall be read,
taken and construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Second Supplemental Indenture, other than as set
forth in the Original Indenture, and the First Supplemental Indenture and this
Second Supplemental Indenture is executed and accepted by the Trustee subject to
all the terms and conditions of its acceptance of the trust under the Original
Indenture and the First Supplemental Indenture as fully as if said terms and
conditions were herein set forth at length.
<PAGE> 29
28
SECTION 5.4. This Second Supplemental Indenture shall be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 5.5. This Second Supplemental Indenture has been dated as of
June 1, 1952, solely for convenience. The date of actual execution hereof by
each of the parties hereto is the date shown by the acknowledgment of execution
hereof by its officers.
IN WITNESS WHEREOF, CENTRAL LOUISIANA ELECTRIC COMPANY, INC., has
caused this instrument to be signed in its corporate name by its President or
one of its Vice-Presidents and sealed with the corporate seal attested by its
Secretary or one of its Assistant Secretaries and The National Bank of Commerce
in New Orleans to evidence its acceptance of the trust hereby created has caused
this instrument to be signed in its corporate name by one of its Vice-Presidents
and sealed by its corporate seal attested by one of its Assistant Cashiers, all
as of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
J. R. GAUGLER
[SEAL] Vice-President.
Attest:
W. D. RODEMACHER,
Assistant Secretary.
Signed, sealed, acknowledged
and delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC.,
in the presence of:
KENNETH J. LEBLANC
A. J. JOUBERT
<PAGE> 30
29
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS
By
F. C. DOYLE,
[SEAL] Vice-President.
Attest:
J. W. PARRA,
ASSISTANT CASHIER.
Signed, sealed, acknowledged
and delivered by THE NATIONAL
BANK OF COMMERCE IN NEW ORLEANS
in the presence of:
KENNETH J. LEBLANC
A. J. JOUBERT
<PAGE> 31
30
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 25th day of June, 1952, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared J. R. Gaugler, a Vice-President
and W. D. Rodemacher, an Assistant Secretary of Central Louisiana Electric
Company, Inc., the grantor in the foregoing instrument, to me personally known
and known to me to be such officers, respectively, of such Company, and
personally known to me to be the identical persons whose names are subscribed
and affixed to the foregoing instrument as such officers, respectively, and who
subscribed the name of the Company thereto, and in my presence and in the
presence of the undersigned witnesses, of lawful age and domicile, severally
acknowledged that the same is their respective, free and voluntary act and deed
as such officers and the free, and voluntary act and deed of said Company for
the uses and purposes therein expressed; and the said persons being each by me
duly and severally sworn as individuals did depose and say that they are such
officers, respectively, of said Company; that they know the seal of said
Company; that the seal affixed to the foregoing instrument was and is such
corporate seal; that said seal was so affixed and said instrument was so signed
on behalf of said Company by the order and authority of the Board of Directors
of said Company; and that they signed their names thereto as such officers,
respectively, of said Company by like authority.
IN TESTIMONY WHEREOF, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of Kenneth
J. Leblanc and A. J. Joubert, witnesses of lawful age and domicile, and of me,
said Notary Public.
Witness:
KENNETH J. LEBLANC J. R. GAUGLER,
A. J. JOUBERT VICE-PRESIDENT.
W. D. RODEMACHER,
ASSISTANT SECRETARY.
CARL J. SCHUMACHER. JR.,
[SEAL] NOTARY PUBLIC.
My Commission expires at death or on removal from Office.
<PAGE> 32
31
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 25th day of June, 1952, before me the undersigned, a
Notary Public in and for said Parish and State duly qualified and commissioned
as such, personally appeared F. C. Doyle, a Vice-President, and J. W. Parra an
Assistant Cashier of The National Bank of Commerce in New Orleans, a national
banking association, duly organized and existing under the laws of the United
States of America, Trustee under the foregoing instrument, to me personally
known and known to me to be such officers, respectively, of said Bank, and
personally known to me to be the identical persons whose names are subscribed
and affixed to the foregoing instrument as such officers respectively, and who
subscribed the name of the said Bank thereto, and in my presence and in the
presence of the undersigned witnesses, of lawful age and domicile, severally
acknowledge that the same is their respective, free and voluntary act and deed
as such officers and the free and voluntary act and deed of said Bank for the
uses and purposes therein expressed; and the said persons being each by me duly
and severally sworn as individuals did depose and say that they are such
officers, respectively, of said Bank; that they know the seal of said Bank, that
the seal affixed to the foregoing instrument was and is such corporate seal;
that said seal was so affixed and said instrument was so signed on behalf of
said Bank by the order and authority of the Board of Directors of said Bank; and
that they signed their names thereto as such officers, respectively, of said
Bank by like authority.
IN TESTIMONY WHEREOF, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of Kenneth
J. Leblanc and A. J. Joubert, witnesses of lawful age and domicile, and of me,
said Notary Public.
Witness:
KENNETH J. LEBLANC F. C. DOYLE,
A. J. JOUBERT VICE-PRESIDENT.
J. W. PARRA,
ASSISTANT CASHIER.
CARL J. SCHUMACHER, JR.,
[SEAL] NOTARY PUBLIC.
My Commission expires at death or on removal from, Office.
<PAGE> 33
32
United States Internal Revenue documentary tax stamps, required in
connection with the issuance of $4,000,000 principal amount of Central Louisiana
Electric Company, Inc. First Mortgage Bonds, Series D, 3 3/4%, due June 1, 1982,
have been affixed to a counterpart of the Indenture of Mortgage dated as of July
1, 1950, which is in our possession, and cancelled.
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, AS TRUSTEE,
By
F. C. DOYLE,
Vice President.
<PAGE> 1
EXHIBIT 4(a)(4)
================================================================================
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
----------------------
Third Supplemental Indenture
DATED AS OF JANUARY 1, 1954
----------------------
Issue of First Mortgage Bonds, Series E, 4 1/4%
Due January 1, 1984
----------------------
Supplemental to Indenture of Mortgage
Dated an of July 1, 1950
================================================================================
SORG PRINTING COMPANY OF TEXAS, HOUSTON, TEXAS
<PAGE> 2
THIRD SUPPLEMENTAL INDENTURE, dated as of January 1, 1954, between
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and
existing under and by virtue of the laws of the State of Louisiana (hereinafter
sometimes called the "Company"), party of the first part, and THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and
existing under and by virtue of the laws of the United States of America, as
Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter
sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of
Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to
the Trustee, to secure the Company's First Mortgage Bonds, limited to
$100,000,000 aggregate principal amount at any one time outstanding and issuable
in series, from time to time, in the manner and subject to the conditions set
forth in the Original Indenture, and by said Original Indenture granted and
conveyed unto the Trustee, upon the trusts, uses and purposes specifically
therein set forth, certain real estate, franchises and other property therein
described, including property acquired after the date thereof except as therein
otherwise provided; and
WHEREAS, the Original Indenture provides for the issuance of bonds
thereunder in one or more series, the form of each series of bonds and of the
coupons to be attached to the coupon bonds to be substantially in the forms set
forth therein with such omissions, variations, and insertions as are authorized
or permitted by the Original Indenture and determined and specified by the Board
of Directors of the Company; and
WHEREAS, the Company has heretofore issued under the Original Indenture
$5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which
$5,335,000 principal amount remains outstanding as of the date hereof; and
WHEREAS, the Company heretofore executed and delivered its First
Supplemental Indenture (hereinafter called the "First Supplemental Indenture")
dated as of October 1, 1951, to the Trustee to supplement
<PAGE> 3
2
the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original Indenture
as supplemented and amended by the First Supplemental Indenture, $4,844,000
principal amount of its First Mortgage Bonds, Series B, 3 3/4%, and $960,000
principal amount of its First Mortgage Bonds, Series C, 3 3/4%, of which bonds
of Series B $4,748,000 principal amount, and of which bonds of Series C $941,000
principal amount, remain outstanding as of the date hereof; and
WHEREAS, the Company heretofore executed and delivered its Second
Supplemental Indenture (hereinafter called the "Second Supplemental Indenture")
dated as of June 1, 1952, to the Trustee to supplement the Original Indenture
and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original
Indenture, as supplemented and amended by the First Supplemental Indenture and
the Second Supplemental Indenture, $4,000,000 principal amount of its First
Mortgage Bonds, Series D, 33/4 %, of which $3,960,000 principal amount remains
outstanding as of the date of this Third Supplemental. Indenture (hereinafter
called "Third Supplemental Indenture"), the Original Indenture as amended or
supplemented by all indentures supplemental thereto, including the First
Supplemental Indenture, the Second Supplemental Indenture, and this Third
Supplemental Indenture, being hereinafter referred to as the "Indenture"; and
WHEREAS, the Company, by appropriate resolutions adopted by its Board of
Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a fifth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series E, 4 1/4%" (herein sometimes called "bonds of Series E"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the coupon bonds
of Series E, the coupons appertaining thereto and the registered bonds without
coupons of said series, are to be substantially in the following forms,
respectively:
<PAGE> 4
3
[FORM OF COUPON BOND OF SERIES E]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series E, 4 1/4%
Due January 1, 1984
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
holder hereof, on January 1, 1984, at the office or agency of the Company in the
City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, and to pay interest thereon
semi-annually on January 1 and July 1 of each year at the rate of four and
one-quarter per centuni (4 1/4%) per annum at such office or agency in like coin
or currency, from January 1, 1954, until this bond shall mature, according to
its terms or on prior redemption or by declaration or otherwise, and at the rate
of six per centum (6%) per annum on any overdue principal and premium (if any)
and (to the extent permitted by law) on any overdue installment of interest,
but, until the maturity hereof, only upon presentation and surrender of the
coupons for such interest installments as are evidenced thereby, hereto
appertaining, as they shall severally mature.
This bond is one of an authorized issue of bonds of the Company known as
its First Mortgage Bonds, limited to One Hundred Million Dollars ($100,000,000)
at any one time outstanding, issued and to be issued, in one or more series, and
equally and ratably secured (except insofar as a sinking fund or other similar
fund established in accordance with the provisions of the Indenture may afford
additional security for the bonds of any specific series) by an indenture
(hereinafter called the "Original Indenture") dated as of July 1, 1950, executed
by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, as Trustee
(hereinafter called the "Trustee"), as supplemented and amended by a First
Supplemental Indenture dated as of October 1, 1951, a Second Supplemental
Indenture dated as of June 1, 1952, and a Third Supplemental Indenture dated as
of Jan-
<PAGE> 5
4
uary 1, 1954, executed by the Company to the Trustee, to which Original
Indenture, First Supplemental Indenture, Second Supplemental Indenture, Third
Supplemental Indenture and all other indentures supplemental thereto (said
Original Indenture as so supplemented and amended being herein called the
"Indenture") reference is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security, the rights of the
holders of the bonds and of the Company in respect of such security, the rights,
duties and immunities of the Trustee, and the terms and conditions upon which
the bonds are, and are to be, secured. As provided in the Indenture, the bonds
may be issued in series for various principal sums, may bear different, dates
and mature at different times, may bear interest at different rates and may
otherwise vary as in the Indenture provided or permitted. This bond is one of
the bonds described in the Indenture and designated therein as "First Mortgage
Bonds, Series E, 4 1/4%" (hereinafter referred to as the "bonds of Series E").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any Hen ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the consent of the holders of all bonds then outstanding, or (iv)
deprive the holder of any out-
<PAGE> 6
5
standing bond of the lien of the Indenture on any of the mortgaged and pledged
property without the consent of the holder of each bond so affected. Any such
consent by the holder of this bond (unless effectively revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders of this bond, irrespective of whether or not any notation of such
consent is made upon this bond. No reference herein to the Indenture and no
provision of this bond or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the Indenture provided, the principal of and
interest and premium, if any, on this bond at the time and place and at the rate
and in the coin or currency herein prescribed.
The coupon bonds of Series E are issuable in the denomination of
$1,000. The registered bonds without coupons of Series E are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series E are entitled to the benefit of the Sinking Fund
provided for in Article II of the Third Supplemental Indenture.
The bonds of Series E may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said City of New Orleans, the first
publication in each case to be not less than thirty (30) days
<PAGE> 7
6
and not more than sixty (60) days before such redemption date (provided,
however, that if all the bonds of Series E at the time outstanding shall be
registered bonds without coupons or coupon bonds registered as to principal,
such publication need not be made, but, in lieu thereof, such notice may be
given by mailing the same to each registered holder of a bond so to be redeemed
directed to his registered address not less than thirty (30) days and not more
than sixty (60) days before the redemption date); all as provided in the
Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series E, provided for in Article II of the Third Supplemental Indenture, or
moneys in the depreciation fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by, the Trustee in connection with any
release of property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public authority, the
bonds of Series E are redeemable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for public and
private debts, at the principal amount thereof together with accrued interest to
the date fixed for redemption, without premium, and if redeemed otherwise than
by the application of such moneys, the bonds of Series E are redeemable in like
coin or currency, at the redemption price at the time applicable, as set forth
in the following schedule, together with, in each case, interest accrued to the
date fixed for redemption:
<TABLE>
<CAPTION>
If Redeemed During the Twelve Redemption Price
Months' Period Ending (Percentage of
December 31 in the Year Principal Amount)
- ------------------------------ -----------------
<S> <C>
1954 ........................................... 104.00
1955 ........................................... 103.98
1956 ........................................... 103.86
1957 ........................................... 103.78
1958 ........................................... 103.70
1959 ........................................... 103.62
1960 ........................................... 103.53
1961 ........................................... 103.44
1962 ........................................... 103.34
1963 ........................................... 103.25
1964 ........................................... 103.15
1965 ........................................... 103.05
1966 ........................................... 102.94
1967 ........................................... 102.82
1968 ........................................... 102.70
1969 ........................................... 102.58
</TABLE>
<PAGE> 8
7
<TABLE>
<CAPTION>
If Redeemed During the Twelve Redemption Price
Months' Period Ending (Percentage of
December 31 in the Year Principal Amount)
- ------------------------------ -----------------
<S> <C>
1970 ........................................... 102.45
1971 ........................................... 102.32
1972 ........................................... 102.18
1973 ........................................... 102.04
1974 ........................................... 101.88
1975 ........................................... 101.73
1976 ........................................... 101.57
1977 ........................................... 101.40
1978 ........................................... 101.22
1979 ........................................... 101.04
1980 ........................................... 100.85
1981 ........................................... 100.55
1982 ........................................... 100.25
1983 ........................................... 100.00
</TABLE>
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annul such declaration.
This bond is negotiable and shall pass by delivery unless registered as
to principal at the office or agency of the Company in said City of New Orleans,
and such registration noted hereon, after which no valid transfer hereof can be
made, except at such office or agency, until after registered transfer to
bearer, but after such registered transfer to bearer this bond shall be again
transferable by delivery. Such registration, however, shall not affect the
negotiability of the
<PAGE> 9
8
coupons, which shall always remain payable to bearer, be treated as negotiable
and pass by delivery. The Company and the Trustee, any paying agent and any bond
registrar may deem and treat the bearer of this bond if it is not registered as
to principal, or, if this bond is registered as herein authorized, the person in
whose name this bond is registered, as the absolute owner hereof, and the bearer
of any coupon hereunto appertaining, as the absolute owner thereof, whether or
not this bond or such coupon shall be overdue, for the purpose of receiving
payment and for all other purposes and neither the Company nor the Trustee nor
any paying agent nor any bond registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, an such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or
obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
the Trustee under the Indenture, or its successor thereunder, shall have signed
the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
interest coupons bearing the facsimile signature of its Treasurer to be attached
hereto, and this bond to be dated January 1, 1954.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
<PAGE> 10
9
(Form of Coupon for Bonds of Series E)
$21.25
On the first day of , 19 , unless the bond hereinafter
mentioned shall have been called for previous redemption and payment of the
redemption price thereof shall have been duly provided for, CENTRAL LOUISIANA
ELECTRIC COMPANY, INC. will pay to bearer, upon surrender of this coupon, at its
office or agency in the City of New Orleans, Louisiana, twenty-one dollars and
twenty-five cents in such coin or currency of the United States of America as at
the time of payment shall be legal tender for public and private debts, being
six months' interest then due on its First Mortgage Bond, Series E, 4 1/4%, No.
Treasurer.
[FORM OF REGISTERED BOND OF SERIES E.]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series E, 4 1/4%
Due January 1, 1984
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, on January 1, 1984, at the office or
agency of the Company in the City of New Orleans, Louisiana, Dollars
($ ) in such coin or currency of the United States of America as at the
time of payment shall be legal tender for public and private debts, and to pay
interest thereon semi-annually on January 1 and July 1 of each year, at the rate
of four and one-quarter per centum (4 1/4%) per annum, at such office or agency,
in like coin or currency, from the interest payment date next preceding the date
of this bond, or if this bond be dated prior to July 1, 1954 then from January
1, 1954, until this bond shall mature, according to its terms or on prior
redemption or by declaration or otherwise and at the rate of six per centum (6%)
per annum on any overdue principal and premium (if any) and (to the extent
permitted by law) on any overdue installment of interest.
<PAGE> 11
10
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance with the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (hereinafter called the "Original Indenture") dated as of July
1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and
amended by a First Supplemental Indenture dated as of October 1, 1951, a Second
Supplemental Indenture dated as of June 1, 1952, and a Third Supplemental
Indenture dated as of January 1, 1954, executed by the Company to the Trustee,
to which Original Indenture, First Supplemental Indenture, Second Supplemental
Indenture, Third Supplemental Indenture and all other indentures supplemental
thereto (said Original Indenture as so supplemented and amended being herein
called the "Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, secured. As provided in the
Indenture, the bonds may be issued in series for various principal sums, may
bear different dates and mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided or
permitted. This bond is one of the bonds described in the Indenture and
designated therein as "First Mortgage Bonds, Series E, 4 1/4%" (hereinafter
referred to as the "bonds of Series E").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions
<PAGE> 12
11
of the Indenture or modifying in any manner the rights of the holders of the
bonds and coupons; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any bonds, or reduce the rate or extend the
time of payment of interest thereon, or modify the terms of payment of principal
at maturity or by redemption, or otherwise modify the terms of payment of any
bond, without the consent of the holder of each bond so affected, or (ii) reduce
the percentage of bonds, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all bonds
then outstanding, or (iii) permit the creation of any lien ranking prior to or
equal with the lien of the Indenture on any of the mortgaged and pledged
property without the consent of the holders of all bonds then outstanding, or
(iv) deprive the holder of any outstanding bond of the lien of the Indenture on
any of the mortgaged and pledged property without the consent of the holder of
each bond so affected. Any such consent by the holder of this bond (unless
effectively revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders of this bond, irrespective
of whether or not any notation of such consent is made upon this bond. No
reference herein to the Indenture and no provision of this bond or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay at the stated or accelerated maturity herein and in
the Indenture provided, the principal of and interest and premium, if any, on
this bond at the time and place and at the rate and in the coin or currency
herein prescribed.
The coupon bonds of Series E are issuable in the denomination of
$1,000. The registered bonds without coupons of Series E are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
<PAGE> 13
12
The bonds of Series E are entitled to the benefit of the Sinking Fund
provided for in Article II of the Third Supplemental Indenture.
The bonds of Series E may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive caleildar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said City of New Orleans, the first
publication in each case to be not less than thirty (30) days and not more than
sixty (60) days before such redemption date (provided, however, that if all the
bonds of Series E at the time outstanding shall be registered bonds without
coupons or coupon bonds registered as to principal, such publication need not be
made, but, in lieu thereof, such notice may be given by mailing the same to each
registered holder of a bond so to be redeemed directed to his registered address
not less than thirty (30) days and not more than sixty (60) days before the
redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series E, provided for in Article II of the Third Supplemental Indenture, or
moneys in the depreciation fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by the Trustee in connection with any
release of property upon any acquisition thereof by, any municipal corporation
or other governmental subdivision or governmental body, or public authority, the
bonds of Series E are redeemable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for public and
private debts, at the principal amount thereof together with accrued interest to
the date fixed for redemption, without premium, and if redeemed otherwise than
by the application of such moneys, the bonds of Series E are redeemable in like
coin or currency, at the redemption price at the time applicable, as set forth
in the following schedule, together with, in each case, interest accrued to the
date fixed for redemption:
(There will be inserted here in all registered bonds without
coupons of Series E, the same table of redemption prices and
<PAGE> 14
13
corresponding dates as are specified for such redemption in the form of
coupon bond of Series E hereinbefore set forth.)
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date on which they become due and payable at
maturity or upon redemption or otherwise, and shall comply with the other
provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in said City of New Orleans, upon surrender and
cancellation of this bond, and upon payment, if the Company shall require it, of
the transfer charges prescribed in the Indenture, and thereupon, a new
registered bond or bonds without coupons of authorized denominations of the same
series and for the same aggregate principal amount will be issued to the
transferee in exchange herefor as provided in the Indenture. The Company and the
Trustee, any paying agent and any bond registrar may deem and treat the person
in whose name this bond is registered as the absolute owner hereof, whether or
not this bond shall be overdue, for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in
<PAGE> 15
14
respect hereof, or based on or in respect of the Indenture, against any
incorporator or any past, present or future subscriber to the capital stock,
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability of incorporators,
subscribers, stockholders, officers and directors, as such, being waived and
released by the holder and owner hereof by the acceptance of this bond and being
likewise waived and released by the terms of the Indenture.
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture,
or its successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile. thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
; and
WHEREAS, all acts and things prescribed by law and by the charter and
by-laws of the Company necessary to make the bonds of Series E, when executed by
the Company and authenticated by the Trustee, as in the Original Indenture
provided, valid, binding and legal obligations of the Company, entitled in all
respects to the security of the said Original Indenture and indentures
supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original
Indenture for such further instruments and indentures supplemental to the
Original Indenture, as may be necessary or proper to
<PAGE> 16
15
carry out more effectually the purposes of the Original Indenture, and to
subject to the lien of the Indenture any property acquired after the date of the
Original Indenture and intended to be covered thereby, with the same force and
effect as though included in the granting clause thereof, and to add such
further covenants, restrictions or conditions for the protection of the
mortgaged and pledged property and the holders of the bonds as the Board of
Directors of the Company and the Trustee shall consider to be for the protection
of the holders of the bonds, and to set forth the terms and provisions of any
series of bonds to be issued under the Indenture and the form of the bonds and
coupons of such series; and the Company since the date of the Original Indenture
has acquired additional property not heretofore specifically subjected to the
lien of the Original Indenture; and it is desired to add certain further
covenants, restrictions and conditions for the protection of the mortgaged and
pledged property and the holders of the bonds, as provided in this Third
Supplemental Indenture, which the Board of Directors of the Company and the
Trustee consider to be for the protection of the holders of the bonds; and the
Company desires to issue bonds of Series E; and the Company desires, pursuant to
sub-section (e) of Section 17.01 to modify the definition of "minimum provision
for property retirements or depreciation" contained in Section 1.05 of the
Indenture so as to make more certain the computation therein provided for; and
the Company therefore deems it advisable to enter into this Third Supplemental
Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Third Supplemental
Indenture has been duly authorized by the Board of Directors of the Company at a
meeting duly called and held according to law, and all conditions and
requirements necessary to make this Third Supplemental Indenture a valid,
binding and legal instrument in accordance with its terms, for the purposes
herein expressed, and the execution and delivery hereof, in the form and terms
hereof, have been in all respects duly authorized;
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH: That
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., by way of further assurance and in
consideration of the premises and of the acceptance by the Trustee of the trusts
hereby created and of one dollar to it duly paid by the Trustee at or before the
ensealing and
<PAGE> 17
16
delivery of these presents, the receipt whereof is hereby acknowledged, and in
order to further secure the payment of the principal of, the premium, if any,
and the interest on all bonds at any time issued and outstanding under the
Indenture, according to their tenor and effect, and the performance and
observance by the Company of all the covenants and conditions herein and therein
contained, and of said bonds, has executed and delivered this Third Supplemental
Indenture, and has granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred, mortgaged, hypothecated, affected, pledged, set
over and confirmed, and by these presents does grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, hypothecate, affect,
pledge, set over and confirm, unto The National Bank of Commerce in New Orleans,
as Trustee, and to its successors in the trust, and to its and their assigns
forever, all the following described properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible,
owned by the Company on the date of the execution hereof or which may be
hereafter acquired by it (except such property now owned or hereafter acquired
as is expressly excepted from the lien of the Indenture by the terms of the
Original Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture or this Third Supplemental Indenture).
The property covered by the lien of the Indenture shall include
particularly, among other property without prejudice to the general and
particular descriptions of property contained in the Original Indenture, in the
First Supplemental Indenture, in the Second Supplemental Indenture and in this
Third Supplemental Indenture, or to the generality of the language in the
Indenture or hereinbefore or hereinafter contained, the following described
property:
I.
The following described real estate, together with all improvements
thereon, situated in the State of Louisiana:
Parcel 1. A certain lot of ground situated in the Sixth Ward of the
Parish of Iberia, State of Louisiana, containing and measuring one hundred
sixty-two (162) feet front on the rear line of property of Floyd N. Calhoun,
having a depth of one hundred eleven feet three inches (111' 3") on its West
line and a depth of eighty-nine feet three
<PAGE> 18
17
inches (89' 3") on its East line, with a width in the rear or on its North line
of one hundred fifty-three (153) feet, being bounded on the North by property of
R. J. Dugas, or assigns, on South by property of Floyd N. Calhoun, on the East
by property of Albert L. Lemaire, and on the West by property of Floyd N.
Calhoun, said lot of ground is situated North of or in the rear of a larger
parcel of land belonging to Floyd N. Calhoun, and the South line of the property
herein described, which, as aforesaid, has a frontage of one hundred sixty-two
(162) feet along the rear line of the larger parcel of land belonging to Floyd
N. Calhoun, is located three hundred eighty-four (384) feet North of the Twenty
Arpent Road. The property herein described being designated as Lot "D" on a plat
recorded in Miscellaneous Book 8, at folio 173, under Entry No. 2751 of the
records of Iberia Parish, Louisiana.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Floyd N. Calhoun by act before Shirley Herpeche, Notary Public for
the Parish of Iberia, dated September 11, 1952, recorded in Conveyance Book 211,
Entry No. 86059, records of Iberia Parish, Louisiana.
There is located on Parcel 1 above described a water storage tank.
Parcel 2. A certain piece or parcel of ground situated near the
Northern corporate limits of the City of Alexandria, Parish of Rapides, State of
Louisiana, more particularly described as follows, to-wit: Starting at the point
on the Western side of the concrete highway extending from Third Street to the
traffic bridge across Red River, generally referred to as Third Street
Extension, where line dividing the property purchased by L. G. Hickman from Mrs.
Mary Barrett Meigs, et al, by deed dated February 23, 1950, recorded in
Conveyance Book 387, page 73, records of Rapides Parish, Louisiana, and the
property acquired by Fred A. Smith from Grady C. Robinson, et al, by deed dated
January 31, 1951, intersects said Western line of said property, run thence
South 42 degrees West for a distance of 237.9 feet to a point, said point being
the beginning of the particular property herein described, and from said point
of beginning turn to the right at an angle of 90 degrees for a distance of 50
feet; thence turn to the left at an angle of 90 degrees for a distance of 50
feet; thence turn to the left at an angle of 90 degrees for a distance of 50
feet; thence turn to the left at an angle of 90 degrees for a distance of 50
feet to the point
<PAGE> 19
18
of beginning; said parcel of ground herein described being 50 feet square.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Irving Ward-Steinman, Trustee of the bankrupt estate of L. G.
Hickman, by act of adjudication dated October 16, 1952, recorded in Conveyance
Book 436, page 411, filing No. 369204, records of Rapides Parish, Louisiana.
There is located on Parcel 2 above described an electric substation.
Parcel 3. Two (2) certain lots of ground situated just beyond the
corporate limits of the City of New Iberia, within the Sixth Ward of the Parish
of Iberia, State of Louisiana, containing and measuring, as a whole, one hundred
eight and two-tenths (108.2) feet on Lombard Street, having a depth on the
Eastern boundary line of one hundred twelve and five-tenths (112.5) feet, and on
the Western boundary line of one hundred twenty-seven and one-tenth (127.1)
feet, having a width in the rear of fifty-three and eight-tenths (53.8) feet,
bounded, as a whole, on the North by a portion of Lot 5 of Block 4 according to
a plat of survey of the Courrege Subdivision by W. K. Frantz, C. E., dated
February, 1947, of record in Miscellaneous Book 8, at folio 177, of the records
of Iberia Parish, Louisiana, on the South by said Lombard Street, on the East by
Lot 10 of said Block 4 (property of Lorena Chandler), on the West by
right-of-way of Missouri Pacific Railroad, and being known and designated as
Lots 11 and 12 of said Block 4 of said Courrege Subdivision.
Being that property acquired by Central Louisiana Electric Company,
Inc., from John C. Daniel and Bernice Compton Daniel by deed dated December 6,
1952, before Segfried B. Christensen, Notary Public for the Parish of Orleans,
dated December 6, 1952, recorded in Conveyance Book 213, Entry No. 86477,
records of Iberia Parish, Louisiana.
There is located on Parcel 3 above described a water storage tank.
Parcel 4. A certain piece or parcel of ground situated in the
Subdivision of Lacombe Park of the Parish of St. Tammany, State of Louisiana,
and more fully described and designated as all of those portions of Lots Numbers
One (1) and Two (2) of Square or Block Number Fifty-nine (59) of said
subdivision, which are situated in Lot Number Nine (9) of the P. N. Judice
Survey of Sections 40 and 48, Township 8 South, Range 12 East, Parish of St.
Tammany, State of Louisiana.
<PAGE> 20
19
Being that property acquired by Central Louisiana Electric Company,
Inc., from Oaklawn Land and Improvement Company by deed dated February 5, 1953,
before Philip E. Pfeffer, Notary Public for St. Tammany Parish, recorded in
Conveyance Book 211, page 270, records of St. Tammany Parish, Louisiana.
There is located on Parcel 4 above described an electric substation.
Parcel 5. A certain lot of ground situated within the corporate limits
of the City of New Iberia, Parish of Iberia, State of Louisiana, containing and
measuring thirty (30) feet front on Fulton Street by a depth between equal and
parallel lines of fifty (50) feet; bounded on the North by property of the
Iberia and Northern (Missouri Pacific) Railroad, on the South by property of
Bertha Viguerie, on the East by property of said Iberia and Northern (Missouri
Pacific) Railroad, and on the West by said Fulton Street and being a portion of
Lot 10 of Block 147, according to the official map of the City of New Iberia,
Louisiana, and the aforedescribed Lot is more fully shown by referring to a plat
of survey thereof prepared by G. K. Pratt Munson, C. E., dated March 7, 1953, a
copy of which said plat is attached to deed from Bertha Beloney, widow of James
Viguerie, to Central Louisiana Electric Company, Inc., dated March 20, 1953.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Bertha Beloney Viguerie by deed dated March 20, 1953, passed before
Guyton H. Watkins, Notary Public for the Parish of Iberia, recorded in
Conveyance Book 218, Entry No. 87321, records of Iberia Parish, Louisiana.
There is located on Parcel 5 above described an electric substation.
Parcel 6. A certain lot of ground situated in the Town of Ville Platte,
Evangeline Parish, Louisiana, measuring fifty (50) feet by fifty (50) feet,
located in Section 49, Township 4 South, Range 2 East, Louisiana Meridian, of
which the Southwest corner is a distance of 37 feet on a bearing North 20
degrees 20 minutes East and a distance of 138 feet on a bearing of North 69
degrees 40 minutes West from an iron stake located at the South side of the
intersection of Derouen Street and Eight North Street (now Lincoln Road), from
this point on a bearing of North 20 degrees 20 minutes East, a distance of 50
feet to a point which will be the Northwest corner; thence on a bearing of South
69 degrees 40 minutes East a distance of 50 feet to a point, which
<PAGE> 21
20
will be the Northeast corner; thence on a bearing of South 20 degrees 20 minutes
West a distance of 50 feet to a point which will be the Southeast corner; thence
on a bearing North 69 degrees 40 minutes West a distance of 50 feet to the point
of beginning, as is more particularly shown by plat of survey attached to and
made part of deed from Mrs. Lucy Vidrine Dardeau to Central Louisiana Electric
Company, Inc., dated April 24, 1953.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Mrs. Lucy Vidrine Dardeau by deed dated April 24, 1953, passed before
G. H. Vidrine, Notary Public for the Parish of Evangeline, recorded in
Conveyance Book Number B-123, page 278, records of Evangeline Parish, Louisiana.
There is located on Parcel 6 above described an electric substation.
Parcel 7. A certain lot of ground situated in Rapides Parish,
Louisiana, being Lot Five (5) of Block or Square Fourteen (14) of the Grace
Subdivision to the City of Pineville, Rapides Parish, Louisiana, as shown by the
official plat of Grace Subdivision made by L. J. Daigre, C. E., dated July 12,
1946, recorded at Plat Book 7, page 112, records of Rapides Parish, Louisiana,
to which reference is made for greater certainty of description, said Lot 5
having a frontage of Fifty (50) feet more or less on Barron Street and extending
back therefrom between parallel lines 102.50 feet to an unnamed street in the
rear; bounded in front by Barron Street, on one side by Lot Six (6), on the
other side by Lot 4 of said Block 14 and in the rear by said unnamed street.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Rubin M. O'Neal, by deed dated May 7, 1953, passed before John H.
McSween, Notary Public for Rapides Parish, Louisiana, recorded in Conveyance
Book 446, page 514, records of Rapides Parish, Louisiana, under filing number
373468.
There is located on Parcel 7 above described an electric substation.
Parcel 8. A certain lot of ground situated in the Town of Washington,
Parish of St. Landry, State of Louisiana, having a front of thirty (30) feet on
Main Street by a depth between parallel lines of forty (40) feet, bounded on
North by property of widow and heirs of Ladie Joubert; South and East by
property of Mrs. Florence Ortego
<PAGE> 22
21
Bidstrup; and on the West by Main Street, said property being located in Block
Number 44, of the original Town of Washington, Louisiana.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Mrs. Florence Ortego Bidstrup and Wilfred J. Bidstrup, her husband,
by deed dated June 5, 1953, passed before A. L. Quirk, Notary Public for St.
Landry Parish, recorded in Conveyance Book B-10, Filing No. 333293, records of
St. Landry Parish, Louisiana.
There is located on Parcel 8 above described an electric substation.
Parcel 9. A certain parcel of land situated in the Northeast Quarter of
the Northeast Quarter (NE1/4 of NE1/4) of Section 16, Township 12 North, Range
13 West, in the Parish of De Soto, State of Louisiana, more particularly
described as follows, to-wit: Beginning at a point 1270 feet West of the
Northeast corner of Section 16, Township 12 North, Range 13 West, De Soto
Parish, Louisiana, and running thence South 150 feet, thence West 50 feet to the
West line of the Northeast Quarter of the Northeast Quarter of Section 16,
Township 12 North, Range 13 West, thence North 150 feet to the Northwest corner
of the Northeast Quarter of the Northeast Quarter of Section 16, Township 12
North, Range 13 West, and thence East 50 feet to the point of beginning.
Being that property acquired by Central Louisiana Electric Company,
Inc., from Joseph W. DuBois and Annie G. DuBois, by deed dated July 6, 1953,
recorded in Conveyance Book 196, page 628, records of De Soto Parish, Louisiana.
There is located on Parcel 9 above described an electric substation.
II.
All real estate or interest therein, now owned or which may be
hereafter acquired by the Company for use or which may be used by it in
connection with its business as an electric, gas and water company, together
with all of the right, title, and interest of the Company, now owned or
hereafter acquired in and to any and all works, plants, buildings, structures,
erections, and constructions now or hereafter placed upon any of the real estate
mentioned, described or referred to as being subject to the lien of the
Indenture, with the fixtures, tenements, hereditaments, and appurtenances
thereunto appertaining or belonging.
<PAGE> 23
22
III.
The Following Described Property, IV, herever Situate:
First: The electric generating plants and electric transmission and/or
distribution systems now or hereafter owned by the Company, and any electric
generating plants and electric transmission and/or distribution systems
hereafter constructed or acquired by the Company, and any additions to or
extensions of any such existing or future electric generating plants and/or
electric transmission and/or distribution systems, together with all engines,
dynamos, motors, generators, boilers, turbines, pole lines, poles, wires,
crossarms, insulators, transformers, meters, buildings, erections, structures,
stations, substations, power houses, power producing and power transmitting
equipment, water, water rights, water wheels, headworks, race-ways, hydraulic
works, hydro-electric plants, cables, conduits, instruments, apparatus,
appliances, machinery, facilities, fixtures and all other property used or
provided for use in the construction, repair, maintenance and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also with all the rights, privileges, franchises,
easements, licenses, ordinances, rights of way, liberties, immunities and
permits of the Company, howsoever conferred or acquired, and whether now owned
or hereafter to be acquired, with respect to the construction, maintenance,
repair and/or operation of said electric generating plants and electric
transmission and/or distribution systems, and each of them, and any additions
thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering
and/or transmission and/or distribution systems now owned by the Company, and
any gas generating plants, gas storage plants and/or gas transmission and/or
distribution systems hereafter constructed or acquired by the Company, and any
additions to or extensions of any such existing or future plants and systems,
together with the buildings, erections, structures, generating and purifying
apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines,
connections, service pipes, meters, conduits, instruments, appliances,
apparatus, facilities, machinery, fixtures and all other property used or
provided for use in the construction, maintenance, repair and/or operation
thereof, both that now owned and that which may be here-
<PAGE> 24
23
after acquired by the Company, and together also with all rights, privileges,
rights of way, franchises, licenses, easements, grants, liberties, immunities,
permits and ordinances of the Company, howsoever conferred or acquired, and
whether now owned or hereafter to be acquired, with respect to the
construction, maintenance, repair, and/or operation of said gas generating
plants, gas storage plants and gas gathering and/or transmission and/or
distribution systems, and each of them, and any additions thereto and extensions
thereof.
Third: The waterworks plants and water distribution systems now owned
by the Company, and any waterworks plants and/or waterworks distribution systems
hereafter constructed or acquired by the Company together with the buildings,
structures, erections, pumps, pumping machinery, reservoirs, filters,
filter-galleries, chlorinating equipment, tanks, wells, water rights, water
supply, water mains, hydrants, pipelines, service pipes, meters, standpipes,
engines, boilers, apparatus, appliances, facilities, machinery, equipment,
fixtures and all other property used or provided for use in the construction,
maintenance, repair and/or operation thereof, both that now owned and that which
may be hereafter acquired by the Company, and together also with all of the
rights, privileges, rights of way, franchises, licenses, easements, permits,
liberties, immunities, grants and ordinances of the Company, howsoever conferred
or acquired, and whether now owned or hereafter to be acquired, with respect to
the construction, maintenance, repair and operation of said plants and systems
and each of them, and any additions thereto and extensions thereof.
TO HAVE AND TO HOLD all such properties, real, personal and mixed,
granted, bargained, sold, aliened, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto the Trustee and its
successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of
way for pole lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens securing indebtedness which
has neither been assumed by the Company nor upon which it customarily pays
interest charges, exist-
<PAGE> 25
24
ing solely upon real property, or rights in and relating thereto, which real
property or rights have been or may be acquired for right-of-way purposes, to
liens of taxes and assessments for the current year and taxes and assessments
not yet due, to alleys, streets and highways that may run across or encroach
upon said lands, and to liens, if any, incidental to construction; and, with
respect to any property which the Company may hereafter acquire, to all terms,
conditions, agreements, covenants, exceptions and reservations expressed or
provided in such deeds and other instruments, respectively, under and by virtue
of which the Company shall hereafter acquire the same and to any and all liens
existing thereon at the time of such acquisition within the restrictions
contained in the Indenture; and subject also to other liens and encumbrances of
the character defined in the Indenture as "permitted liens" insofar as the same
may attach to any of the property embraced herein;
SAVING AND EXCEPTING, however, from the properties mortgaged and
pledged by the Indenture (whether now owned by the Company or hereafter acquired
by it) all bills, notes and accounts receivable, cash on hand and in bank,
contracts, merchandise and appliances kept for purposes of sale, and all bonds,
obligations, evidences of indebtedness, shares of stock and other securities,
and certificates or evidences of interest therein-other than any of the
foregoing which may be hereafter specifically transferred or assigned to or
pledged or deposited with the Trustee under the Indenture or required by the
provisions of the Indenture so to be and all office furniture and equipment,
motor vehicles, tools, testing equipment and consumable materials and supplies;
provided, however, that, if upon the happening of an event of default as in the
Indenture defined, the Trustee or any receiver appointed under the Indenture
shall enter upon and take possession of the mortgaged property, the Trustee or
such receiver may, to the extent permitted by law, at the same time likewise
take possession of any and all of the property described in this paragraph then
on hand and use and administer the same to the extent as if such property were
part of the mortgaged property, unless and until such event of default shall be
remedied or waived and possession of the mortgaged property restored to the
Company, its successors or assigns.
<PAGE> 26
25
ALSO SAVING AND EXCEPTING, however, from the property hereby mortgaged and
pledged:
(a) All parcels of land now owned or hereafter acquired by the Company
and not used by it or useful in connection with its business as an electric, gas
or water company or as an electric, gas or water utility.
(b) All machinery, equipment, fixtures, supplies and materials now used
or hereafter acquired for use in connection with the ice and cold storage, ice
cream and dairy business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in
connection with the. ice and cold storage, ice cream and dairy business of the
Company, together with all tires, spare parts, materials and supplies
appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now
owned or hereafter acquired, not used by or useful to the Company in its
business as an electric, gas or water company or as an electric, gas or water
utility, not located on any parcel of real estate now owned or hereafter
acquired, referred to as being subject to the lien of the Indenture.
(e) All additions, improvements, betterments, extensions and
replacements now or hereafter made to or acquired for or in connection with the
property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the
Original Indenture, the First Supplemental Indenture and the Second Supplemental
Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and interest on all said bonds, together with the premium, if any,
payable on such of said bonds as may have been called for redemption prior to
maturity, or shall provide, as permitted by the Indenture, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon for principal, interest and premium, if any, and if the Company shall
also pay or cause to be paid all other sums payable under the Indenture by it,
then the Indenture and the estate and rights thereby granted shall
<PAGE> 27
26
cease, determine and be void, otherwise to be and remain in full force and
effect.
IT IS HEREBY FURTHER CONVENANTED, DECLARED AND AGREED by and between
the Company and the Trustee, for the benefit of those who shall hold said bonds
and coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES E.
SECTION 1.1. The fifth series of bonds to be issued under the Indenture
and secured thereby is hereby created, which shall be designated, and
distinguished from the bonds of all other series, by the title "First Mortgage
Bonds, Series E, 4 1/4%", elsewhere herein referred to as the "bonds of Series
E".
Except as otherwise provided in Section 2.08 of the Indenture with
respect to destroyed, lost or stolen bonds, the aggregate principal amount of
the bonds of Series E which may be outstanding at any one time shall be
$3,000,000.
The bonds of Series E shall be dated, and shall bear interest from,
January 1, 1954, except as provided in Section 2.03 of the Indenture with
respect to registered bonds without coupons, and shall be due January 1, 1984,
and shall bear interest at the rate of four and one-quarter per centum (4 1/4%)
per annum, payable semi-annually on the first day of January and the first day
of July in each year, until they shall mature, according to their terms or on
prior redemption or by declaration or otherwise, and at the rate of six per
centum (6%) per annum on any overdue principal and premium (if any) and (to the
extent permitted by law) on any overdue installment of interest. The principal
of and the premium (if any) and the interest on the bonds of Series E shall be
payable at the office or agency of the Company in the City of New Orleans,
Louisiana, in such coin or currency of the United States of America as, at the
time of payment, shall be legal tender for public and private debts.
The bonds of Series E shall be redeemable, either at the option of the
Company or pursuant to any provision of the Indenture requiring such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice as provided in Section 8.02 of the Indenture, published in a
newspaper printed in the English
<PAGE> 28
27
language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of the City of New Orleans, at least
once in each of four (4) successive calendar weeks upon any business day of
each such calendar week, the first publication to be not less than thirty (30)
days and not more than sixty (60) days before such redemption date (or upon
mailing of such notice of redemption as provided in the first paragraph of
Section 8.02 of the Indenture in the event such paragraph shall be applicable).
If redeemed by the application of moneys in the Sinking Fund for bonds of Series
E provided for in Article II of this Third Supplemental Indenture or moneys in
the depreciation fund provided for in Section 5.07 of the Indenture, or by the
application of moneys received by the Trustee in connection with any release of
property upon any acquisition thereof by any municipal corporation or other
governmental subdivision or governmental body or public authority, the bonds of
Series E are redeemable at the principal amount thereof, together with interest
accrued to the date fixed for redemption, without premium. If redeemed otherwise
than by the application of such moneys, the bonds of Series E are redeemable at
the redemption price at the time applicable specified in the schedule contained
in the form of coupon bond of Series E set forth in the recitals hereof,
together with interest accrued to the date fixed for redemption.
Coupon bonds of Series E shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds without
coupons of Series E shall be issuable in denominations of $1,000 and any
multiple of $1,000. Bonds of Series E shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIS E.
SECTION 2.1. The Company covenants and agrees that so long as any of
the bonds of Series E shall be outstanding it will pay to the Trustee, as and
for a sinking fund for the bonds of Series E, on the first day of January in the
year 1955 and on the first day of January
<PAGE> 29
28
in each year thereafter, an amount of cash equal to one per centum (17o) of the
greatest principal amount of bonds of Series E outstanding under the Indenture
at any one time prior to the next preceding November 15; provided, however, that
the amount of cash payable to the Trustee on any such January 1 pursuant to the
provisions of this Section shall be reduced by an amount equal to the aggregate
principal amount of bonds of Series E then being delivered by the Company to the
Trustee, but no bonds of Series E shall be delivered to the Trustee which have
not been sold in a bona fide transaction and reacquired by the Company.
Cash paid to the Trustee pursuant to the provisions of this Section
shall be applied by it as follows:
(a) Upon the written notice by the Company to the Trustee given on
or before November 15 in any year, beginning with the year 1954,
specifying the amount of cash which the Company will pay to the Trustee
on the next succeeding January 1 pursuant to this Section and
requesting that it be used for the redemption of bonds, the Trustee
shall, to the extent practicable, apply the cash received by it on the
next succeeding January 1, together with any other cash held by it on
such November 15 under the provisions of this Section, to the
redemption on such January 1 of bonds of Series E, in the manner and
subject to the conditions provided in such bonds and in Article VIII of
the Indenture; and for such purpose the Trustee may publish notice of
redemption in the name of the Company or in its own name as Trustee.
(b) If the Company shall not have given the notice referred to in
the foregoing subdivision (a), the cash received by the Trustee on any
January 1 pursuant to the provisions of this Section shall, upon
request of the Company and to the extent practicable, be applied
promptly by the Trustee to the purchase of bonds of Series E in
accordance with the provisions of Section 8.06 of the Indenture.
(c) If the Trustee on March 20 of any year shall hold cash under
the provisions of this Section amounting to $15,000 or more (or any
amount less than $15,000, if the Company so elects), the Trustee shall
apply all cash, to the extent practicable, then held under the
provisions of this Section to the redemption on the next succeeding May
1 of bonds of Series E, in the manner and
<PAGE> 30
29
subject to the conditions provided in such bonds and in Article
VIII of the Indenture; and for such purpose the Trustee may publish
notice of redemption in the name of the Company or in its own name as
Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on
demand, the compensation of the Trustee in administering the sinking fund as
provided in this Article II, together with the Trustee's expenses, including
cost of advertisement of redemption notices and any other advertisements and
other lawful charges, if any, and any accrued interest and premium paid or
payable with respect to any such bonds of Series E purchased or redeemed as
provided for in Section 2.1 it being intended that the aforesaid compensation,
expenses, charges, accrued interest and premium shall not be charged against
sinking fund moneys.
SECTION 2.3. All bonds of Series E delivered to the Trustee for the
purpose of taking a credit pursuant to the provisions of Section 2.1, or
purchased or redeemed pursuant to the provisions of Section 2.1, shall be
forthwith cancelled by the Trustee, and such bonds shall not be reissued.
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series
E are outstanding, it will not at any time declare or pay any dividend on its
Common Stock or make any distribution to its Common Stockholders (other than
dividends or distributions payable solely in its Common Stock) or purchase or
otherwise acquire for value any of its Common Stock, except out of (1) earned
surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of
earned surplus accumulated prior to January 1, 1950 (such aggregate amount being
hereinafter called "unrestricted earned surplus"), nor unless after the payment
of such dividend or the making of such distribution, purchase or acquisition the
sum of (a) the provision for property retirements or depreciation made by the
Company out of income or earned surplus, during the period from July 1, 1950, to
the end of the calendar year next preceding the date of payment of such dividend
or the making of such distribution, purchase or acquisition
<PAGE> 31
30
and (b) the unrestricted earned surplus, if any, of the Company shall be not
less than the aggregate of the minimum provision for property retirements or
depreciation determined as provided in Section 1.05 of the Indenture, for the
period f rom July 1, 1950, to the end of the calendar year next preceding the
date of payment of such dividend or the making of such distribution, purchase or
acquisition. For the purposes of this Section, the earned surplus of the Company
accumulated after December 31, 1949, shall be determined in accordance with
sound accounting practice, and, so long as and to the extent that there shall
remain any earned surplus of the Company accumulated prior to January 1, 1930,
other than unrestricted earned surplus, such amount shall be available for all
surplus charges other than such dividends or the making of such distribution,
purchase or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are
outstanding under the Original Indenture no Indenture or Indentures supplemental
to the Original Indenture will be entered into by the Company unless such
Supplemental Indenture shall contain provisions which are in compliance with the
Trust Indenture Act of 1939 as then in effect; provided, however, that this
provision shall not be effective and binding upon the Company if all of the
bonds then outstanding and then to be issued under the Original Indenture as
supplemented and amended by all other supplemental indentures and by such
supplemental indenture then to be entered into, shall either be exempt
securities as defined in the Trust Indenture Act of 1939 as then in effect, or
are to be issued in a transaction exempt from the provisions of said Act.
SECTION 3.3. The Company covenants that, so long as any bonds of Series
E are outstanding, it will not convey or transfer any property which is subject
to the lien of the Indenture to any affiliate of the Company except in
accordance with the provisions of Article XIII of the Indenture or except such
property as shall thereupon be released from the lien of the Indenture under the
provisions of Article IX thereof.
SECTION 3.4. The Company covenants that, so long as any bonds of Series
E are outstanding, it will not at any time purchase or cause to be purchased any
bond of any series outstanding under the Indenture at a price (including accrued
interest, but not including brokerage charges) which is in excess of the current
redemption price of such
<PAGE> 32
31
bond at the date of purchase if such bond is redeemable before maturity or, if
it is not so redeemable, one hundred five per centum (105%) of the principal
amount of such bond, plus, in either case, accrued interest.
ARTICLE IV.
AMENDMENTS OF ORIGINAL INDENTURE.
(Pursuant to Sub-Section (e) of Section 17.01 of Original Indenture)
SECTION 4.1. The third paragraph of Section 1.05 of the Original
Indenture (relating to the minimum provision for property retirements or
depreciation) is amended to read as follows:
"The term 'minimum provision for property retirements or
depreciation', when used with reference to any period of time, shall
mean an amount equal to (i) fifteen per centurn (15%) of the gross
operating revenues of the Company received from electric, gas and water
operations during such period, to the extent arising out of the
operation of bondable property and leased electric, gas and water
facilities, after deducting from such gross operating revenues (a) an
amount equal to the aggregate cost to the Company of electric energy,
gas and water purchased for resale in connection with the operation of
such property or facilities and (b) rentals paid for the lease of
electric, gas and water facilities, less (ii an amount equal to the
aggregate charges by the Company to operating expenses during such
period for current repairs and maintenance to bondable property and
leased electric, gas and water facilities."
SECTION 4.2. Section 3.5 of the First Supplemental Indenture is hereby
amended to read as follows:
"Section 3.5. Section 5.07 of the Original Indenture is hereby
amended by inserting after the words 'property additions', in the third
line of the second paragraph of said Section and in the first line of
paragraph (4) of said Section, the following:
'(exclusive of (i) property additions, the bondable value of which
has been previously made the basis for the authentication and
delivery of bonds, for the withdrawal of cash under any provision
of this indenture, or for a credit under any sinking or
improvement fund or other purchase or similar fund which may be
created pursuant to the provision of any indenture supplemental to
this indenture, (ii) property additions
<PAGE> 33
32
acquired by merger, consolidation or dissolution to the extent
that the same have not been deducted pursuant to the provisions of
clause (i) above, and (iii) any property additions, to the extent
that the same have not been deducted pursuant to the provisions of
clause (i) or (ii) above, which within six months prior to the
date of acquisition thereof by the Company were used or operated
by a person or persons other than the Company in a business
similar to that in which they have been or are to be used or
operated by the Company)'."
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the
real estate, franchises and other property described or referred to in the
Indenture as presently mortgaged and pledged thereunder, subject to the
exceptions stated therein and except property which has been released from the
lien of the Indenture in accordance with its terms, and upon the initial issue
of bonds of Series E thereunder such real estate, franchises and other property
will be free and clear of any lien prior to or on a parity with the lien of the
Indenture except as set forth in the granting clauses of the Indenture and
except permitted liens as therein defined, and the Company has good right and
lawful authority to mortgage and pledge the same as provided in and by the
Indenture.
SECTION 5.2. As supplemented and amended by this Third Supplemental
Indenture, the Original Indenture, the First Supplemental Indenture and the
Second Supplemental Indenture are in all respects ratified and confirmed and
said Original Indenture, First Supplemental Indenture, Second Supplemental
Indenture and this Third Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Third Supplemental Indenture, other than as set
forth in the Original Indenture, the First Supplemental Indenture and the Second
Supplemental Indenture and this Third Supplemental Indenture is executed and
accepted by the Trustee subject to all the terms and conditions of its
acceptance of the trust under the Original Indenture, the First Supplemental
Indenture and the Second Supplemental Indenture as fully as if said terms and
conditions were herein set forth at length.
<PAGE> 34
33
SECTION 5.4. This Third Supplemental Indenture shall be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 5.5. This Third Supplemental Indenture has been dated as of
January 1, 1954, solely for convenience. The date of actual execution hereof by
each of the parties hereto is the date shown by the acknowledgment of execution
hereof by its officers.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this instrument to be signed in its corporate name by its President or one of
its Vice-Presidents and sealed with the corporate seal attested by its Secretary
or one of its Assistant Secretaries and The National Bank of Commerce in New
Orleans to evidence its acceptance of the trust hereby created has caused this
instrument to be signed in its corporate name by one of its Vice-Presidents and
sealed by its corporate seal attested by one of its Assistant Cashiers, all as
of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By T. M. HAUER
Vice-President.
Attest:
T. P. STREET
Secretary.
Signed, sealed, acknowledged and
delivered by CENTRAL LOUISIANA (SEAL)
ELECTRIC COMPANY, INC., in the
presence of:
R. J. Emmer
H. S. FORD
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS
By F. C. DOYLE
Vice-President.
Attest:
R. C. MORSE
Assistant Cashier.
Signed, sealed, acknowledged and
delivered by THE NATIONAL BANK OF (SEAL)
COMMERCE IN NEW ORLEANS in the
presence of:
R. J. EMMER
H. S. FORD
<PAGE> 35
34
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 2nd day of February, 1954, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared T. M. HAUER, a Vice-President and
T. P. STREET, Secretary of CENTRAL LOUISIANA ELECTRIC COMPANY, INC., the grantor
in the foregoing instrument, to me personally known and known to me to be such
officers, respectively, of such Company, and personally known to me to be the
identical persons whose names are subscribed and affixed to the foregoing
instrument as such officers, respectively, and who subscribed the name of the
Company thereto, and in my presence and in the presence of the undersigned
witnesses, of lawful age and domicile, severally acknowledged that the same is
their respective, free and voluntary act -and deed as such officers and the free
and voluntary act and deed of said Company for the uses and purposes therein
expressed; and the said persons being each by me duly and severally sworn as
individuals did depose and say that they are such officers, respectively, of
said Company; that they know the seal of said Company; that the seal affixed to
the foregoing instrument was and is such corporate seal; that said seal was so
affixed and said instrument was so signed on behalf of said Company by the order
and authority of the Board of Directors of said Company; and that they signed
their names thereto as such officers, respectively, of said Company by like
authority.
In Testimony Whereof, the said Appearers have hereunto Signed their
names on the day and date first hereinabove written, in the presence of R. J.
EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness:
T. M. HAUER
Vice-President.
R. J. EMMER
T. P. STREET
Secretary.
H. S. Ford
THOMAS F. JORDAN
Notary Public.
(NOTARIAL SEAL)
My Commission expires at death or on removal from Office.
<PAGE> 36
35
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 2nd day of February, 1954, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared FRANCIS C. DOYLE, a Vice-President
and RICHARD C. MORSE, an Assistant Cashier of The National Bank of Commerce in
New Orleans, a national banking association, duly organized and existing under
the laws of the United States of America, Trustee under the foregoing
instrument, to me personally known and known to me to be such officers,
respectively, of said Bank, and personally known to me to be the identical
persons whose names are subscribed and affixed to the foregoing instrument as
such officers respectively, and who subscribed the name of the said Bank
thereto, and in my presence and in the presence of the undersigned witnesses, of
lawful age and domicile, severally acknowledge that the same is their
respective, free and voluntary act and deed as such officers and the free and
voluntary act and deed of said Bank for the uses and purposes therein expressed;
and the said persons being each by me duly and severally sworn as individuals
did depose and say that they are such officers, respectively, of said Bank; that
they know the seal of said Bank, that the seal affixed to the foregoing
instrument was and is such corporate seal; that said seal was so affixed and
said instrument was so signed on behalf of said Bank by the order and authority
of the Board of Directors of said Bank; and that they signed their names thereto
as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of R. J.
EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness:
F. C. DOYLE
Vice-President.
R. J. EMMER
R. C. MORSE
Assistant Cashier.
H. S. FORD
THOMAS F. JORDAN
Notary Public.
(NOTARIAL SEAL)
My Commission expires at death or on removal from Office.
<PAGE> 37
36
RECORDING DATA
As shown by the Recorders' Certificates, the foregoing Third
Supplemental Indenture dated as of January 1, 1954, from Central Louisiana
Electric Company, Inc., to The National Bank of Commerce in New Orleans, as
Trustee, is duly recorded in the following Parishes in the State of Louisiana:
<TABLE>
<CAPTION>
PARISH MORTGAGE BOOK FOLIO REGISTRY NUMBER
- ------ ------------- ----- ---------------
<S> <C> <C> <C>
Acadia 119 146 263670
Allen 40 631 116634
Avoyelles 9 614 153467
Beauregard 54 601 114922
Calcasieu 281 1 576951
DeSoto 59 32 233946
Evangeline 68 315 151232
Grant Special-4 435 15788
Iberia A-138 37 50965
Lafayette 0-21 229 298414
Natchitoches 214-A 472 MA-1090
Rapides 358 147 379971
Red River 42 113 83843
Sabine 29 627 149186
St. Landry 168 368 341378
St. Mary 147 541 62475
St. Martin 96 204 51044
St. Tammany 103 519 114100
Vernon 222 41 198920
W ashington 119 381 238
</TABLE>
<PAGE> 1
EXHIBIT 4(a)(5)
================================================================================
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
TO
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
as Trustee
---------------------------
Fourth Supplemental Indenture
DATED AS OF NOVEMBER 1, 1954
---------------------------
Issue of First Mortgage Bonds, Series F, 3 1/4%
Due November 1, 1984
---------------------------
Supplemental to Indenture of Mortgage
Dated as of July 1, 1950
================================================================================
Sorg Printing Company of Texas, Houston, Texas
<PAGE> 2
FOURTH SUPPLEMENTAL INDENTURE, dated as of November 1, 1954, between
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation duly organized and
existing under and by virtue of the laws of the State of Louisiana (hereinafter
sometimes called the "Company"), party of the first part, and THE NATIONAL BANK
OF COMMERCE IN NEW ORLEANS, a national banking association duly organized and
existing under and by virtue of the laws of the United States of America, as
Trustee under the Indenture of Mortgage hereinafter mentioned (hereinafter
sometimes called the "Trustee"), party of the second part.
WHEREAS, the Company heretofore executed and delivered its Indenture of
Mortgage (hereinafter called "Original Indenture"), dated as of July 1, 1950, to
the Trustee, to secure the Company's First Mortgage Bonds, limited to
$100,000,000 aggregate principal amount at any one time outstanding and issuable
in series, from time to time, in the manner and subject to the conditions set
forth in the Original Indenture, and by said Original Indenture granted and
conveyed unto the Trustee, upon the trusts, uses and purposes specifically
therein set forth, certain real estate, franchises and other property therein
described, including property acquired after the date thereof except as therein
otherwise provided; and
WHEREAS, the Original Indenture provides for the issuance of bonds
thereunder in one or more series, the form of each series of bonds and of the
coupons to be attached to the coupon bonds to be substantially in the forms set
forth therein with such omissions, variations, and insertions as are authorized
or permitted by the Original Indenture and determined and specified by the Board
of Directors of the Company; and
WHEREAS, the Company has heretofore issued under the Original Indenture
$5,500,000 principal amount of its First Mortgage Bonds, Series A, 3%, of which
$5,280,000 principal amount remains outstanding as of the date hereof ; and
WHEREAS, the Company heretofore executed and delivered its First
Supplemental Indenture (hereinafter called the "First Supplemental Indenture")
dated as of October 1, 1951, to the Trustee to supplement
<PAGE> 3
2
the Original Indenture and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original
Indenture, as supplemented and amended by the First Supplemental Indenture,
$4,844,000 principal amount of its First Mortgage Bonds, Series B, 3 3/4%, and
$960,000 principal amount of its First Mortgage Bonds, Series C, 3 3/4%, of
which bonds of Series B $4,699,000 principal amount, and of which bonds of
Series C $932,000 principal amount, remain outstanding as of the date hereof;
and
WHEREAS, the Company heretofore executed and delivered its Second
Supplemental Indenture (hereinafter called the "Second Supplemental Indenture")
dated as of June 1, 1952, to the Trustee to supplement the Original Indenture
and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original
Indenture, as supplemented and amended by the First Supplemental Indenture and
the Second Supplemental Indenture, $4,000,000 principal amount of its First
Mortgage Bonds, Series D, 3 3/4%, of which $3,920,000 principal amount remains
outstanding as of the date hereof; and
WHEREAS , the Company heretofore executed and delivered its Third
Supplemental Indenture (hereinafter called the "Third Supplemental Indenture")
dated as of January 1, 1954, to the Trustee to supplement the Original Indenture
and to modify and amend certain of its provisions; and
WHEREAS, the Company has heretofore issued under the Original
Indenture, as supplemented and amended by the First Supplemental Indenture, the
Second Supplemental Indenture and the Third Supplemental Indenture, $3,000,000
principal amount of its First Mortgage Bonds, Series E, 4 1/4%, all of which
remain outstanding as of the date of this Fourth Supplemental Indenture
(hereinafter called "Fourth Supplemental Indenture"), the Original Indenture as
amended or supplemented by all indentures supplemental thereto, including the
First Supplemental Indenture, the Second Supplemental Indenture, the
<PAGE> 4
3
Third Supplemental Indenture, and this Fourth Supplemental Indenture, being
hereinafter referred to as the "Indenture"; and
WHEREAS, the Company by appropriate resolutions adopted by its Board of
Directors pursuant to the terms of the Indenture, has duly determined (a) to
create a sixth series of bonds under the Indenture, to be designated as "First
Mortgage Bonds, Series F, 3 1/4%" (herein sometimes called "bonds of Series F"),
(b) that such bonds shall be coupon bonds registerable as to principal and
registered bonds without coupons, (c) that such coupon bonds shall be
exchangeable for registered bonds without coupons, and (d) that the coupon bonds
of Series F, the coupons appertaining thereto and the registered bonds without
coupons of said series, are to be substantially in the following forms,
respectively:
[FORM OF COUPON BOND OF SERIES F]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series F, 3 1/4%
Due November 1, 1984
No. $1000
CENTRAL LOUISIANA ELECTRIC COMPANY, Inc., a corporation organized and
existing under the laws of the State of Louisiana (hereinafter called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
holder hereof, on November l 1984, at the office or agency of the Company in the
City of New Orleans, Louisiana, One Thousand Dollars ($1000) in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for public and private debts, and to pay interest thereon
semi-annually on May 1 and November 1 of each year at the rate of three and
one-quarter per centum (3 1/4%) per annum at such office or agency in like coin
or currency, from November 1, 1954, until this bond shall mature, according to
its terms or on prior redemption or by declaration or otherwise, and at the rate
of six per centum (6%) per annum on any overdue principal and premium (if any)
and (to the extent permitted by law) on any overdue installment of interest,
but, until the maturity hereof, only upon presentation and surrender of the
<PAGE> 5
4
coupons for such interest installments as are evidenced thereby, hereto
appertaining, as they shall Severally mature
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance With the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (hereinafter called the "Original Indenture") dated as of July
1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS
as Trustee (hereinafter called the "Trustee"), as supplemented and amended by a
First Supplemental Indenture dated as of October 1, 1951, a Second Supplemental
Indenture dated as of June 1, 1952, a Third Supplemental Indenture dated as of
January 1, 1954, and a Fourth Supplemental Indenture dated as of November 1,
1954, executed by the Company to the Trustee, to Which Original Indenture, First
Supplemental Indenture, Second Supplemental Indenture, Third Supplemental
Indenture, Fourth Supplemental Indenture and all other indentures supplemental
thereto (said Original Indenture as so supplemented and amended being - herein
called the "Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, secured. As provided in the
Indenture, the bonds may be issued in series for various principal sums, may
bear different dates and mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided or
permitted. This bond is one of the bonds described in the Indenture and
designated therein as "First Mortgage Bonds, Series F, 3 1/4%" (hereinafter
referred to as the "bonds of Series F").
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected,
<PAGE> 6
5
then with the consent of the holders of not less than 75% in aggregate principal
amount of the bonds at the time outstanding of the one or more series affected,
determined and evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or modifying in any manner the rights of the
holders of the bonds and coupons; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any bonds, or reduce the rate
or extend the time of payment of interest thereon, or modify the terms of
payment of principal at maturity or by redemption, or otherwise modify the terms
of payment of any bond, without the consent of the holder of each bond so
affected, or (ii) reduce the percentage of bonds, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of all bonds then outstanding, or (iii) permit the creation of any
lien ranking prior to or equal with the lien of the Indenture on any of the
mortgaged and pledged property without the consent of the holders of all bonds
then outstanding, or (iv) deprive the holder of any outstanding bond of the lien
of the Indenture on any of the mortgaged and pledged property without the
consent of the holder of each bond so affected. Any such consent by the holder
of this bond (unless effectively revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders of this
bond, irrespective of whether or not any notation of such consent is made upon
this bond. No reference herein to the Indenture and no provision of this bond or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay at the stated or accelerated maturity herein
and in the Indenture provided, the principal of and interest and premium, if
any, on this bond at the time and place and at the rate and in the coin or
currency herein prescribed.
The coupon bonds of Series F are issuable in the denomination of
$1,000. The registered bonds without coupons of Series F are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggre-
<PAGE> 7
6
gate principal amount of registered bonds without coupons of such series, and
registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series F are entitled to the benefit of the Sinking Fund
provided for in Article H of the Fourth Supplemental Indenture.
The bonds of Series F may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the. Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said City of New Orleans, the first
publication in each case to be not less than thirty (30) days and not more than
sixty (60) days before such redemption date (provided, however, that if all the
bonds of Series F at the time outstanding shall be registered bonds without
coupons or coupon bonds registered as to principal, such publication need not be
made, but, in lieu thereof, such notice may be given by mailing the same to each
registered holder of a bond so to be redeemed directed to his registered address
not less than thirty (30) days and not more than sixty (60) days before the
redemption date); all as provided in the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series F, provided for in Article II of the Fourth Supplemental Indenture, or
moneys in the depreciation fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by the Trustee in connection with any
release of property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public authority, the
bonds of Series F are redeemable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for public and
private debts, at the principal amount thereof together with accrued interest to
the date fixed for redemption, without premium, and if redeemed otherwise than
by the application of such
<PAGE> 8
7
moneys, the bonds of Series F are redeemable in like coin or currency, at the
redemption price at the time applicable, as set forth in the following schedule,
together with, in each case, interest accrued to the date fixed for redemption:
<TABLE>
<CAPTION>
If Redeemed During Twelve Redemption Price
Months' Period Ending (Percentage of
October 31, Principal Amount)
- -------------------------- -----------------
<S> <C>
1955 .......................................... 103.00
1956 .......................................... 102.90
1957 .......................................... 102.80
1958 .......................................... 102.70
1939 .......................................... 102.60
1960 .......................................... 102.50
1961 .......................................... 102.40
1962........................................... 102.30
1963........................................... 102.20
1964........................................... 102.10
1965 .......................................... 102.00
1966 .......................................... 101.90
1967 .......................................... 101.80
1968 .......................................... 101.70
1969 .......................................... 101.60
1970 .......................................... 101.50
1971 .......................................... 101.40
1972 .......................................... 101.30
1973 .......................................... 101.20
1974 .......................................... 101.10
1975 .......................................... 101.00
1976 .......................................... 100.90
1977 .......................................... 100.80
1978 .......................................... 100.70
1979 .......................................... 100.60
1980 .......................................... 100.50
1981 .......................................... 100.40
1982 .......................................... 100.30
1983 .......................................... 100.20
1984 .......................................... 100.00
</TABLE>
If this bond is called for redemption and payment hereof is duly
provided for as specified in the Indenture, interest shall cease to accrue
hereon from and after the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the prin-
<PAGE> 9
8
cipal of all of the bonds of any series, or such of the bonds of any series as
have been or are to be called for redemption, and premium, if any, thereon, and
all interest payable on such bonds to the date on which they become due and
payable at maturity or upon redemption or otherwise, and shall comply with the
other provisions of the Indenture in respect thereof, then from the date of such
deposit such bonds shall no longer be entitled to any lien or benefit under the
Indenture..
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annual such declaration.
This bond is negotiable and shall pass by delivery unless registered as
to principal at the office or agency of the Company in said City of New Orleans,
and such registration noted hereon, after which no valid transfer hereof can be
made, except at such office or agency, until after registered transfer to
bearer, but after such registered transfer to bearer this bond shall be again
transferable by delivery. Such registration, however, shall not affect the
negotiability of the coupons, which shall always remain payable to bearer, be
treated as negotiable and pass by delivery. The Company and the Trustee, any
paying agent and any bond registrar may deem and treat the bearer of this bond
if it is not registered as to principal, or, if this bond is registered as
herein authorized, the person in whose name this bond is registered, as the
absolute owner hereof, and the bearer of any coupon hereunto appertaining, as
the absolute owner thereof, whether or not this bond or such coupon shall be
overdue, for the purpose of receiving payment and for all other purposes and
neither the Company nor the Trustee nor any paying agent nor any bond registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or con-
<PAGE> 10
9
stitution or by the enforcement of any assessment or otherwise, all such
liability of incorporators, subscribers, stockholders, officers and directors,
as such, being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by the terms of
the Indenture.
Neither this bond nor the coupons hereto attached shall become valid or
obligatory for any purpose until THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS,
the Trustee under the Indenture, or its successor thereunder, shall have signed
the certificate of authentication endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
interest coupons bearing the facsimile signature of its Treasurer to be attached
hereto, and this bond to be dated November 1,1954.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
Secretary.
(Form of Coupon for Bonds of Series F)
$16.25
On the first day of 19 , unless the bond hereinafter mentioned shall
have been called for previous redemption and payment of the redemption price
thereof shall have been duly provided for, CENTRAL LOUISIANA ELECTRIC COMPANY,
INC.. will pay to bearer, upon surrender of this coupon, at its office or agency
in the City of New Orleans, Louisiana, sixteen dollars and twenty-five cents in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for public and private debts, being six months' interest
then due on its First Mortgage Bond, Series F, 3 1/4%, No.
Treasurer.
<PAGE> 11
10
FORM OF REGISTERED BOND OF SERIES F]
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
First Mortgage Bond, Series F, 3 1/4%
Due November 1, 1984
No. $
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and
existing under the laws of the State of Louisiana (herein after called the
"Company", which term shall include any successor corporation as defined in the
Indenture hereinafter referred to), for value received, hereby promises to pay
to , or registered assigns, on November 1, 1984, at the office or
agency of the Company in the City of New Orleans, Louisiana, Dollars
($ )in such coin or currency of the United States of America as at the
time of payment shall be legal tender for public and private debts, and to pay
interest thereon semi-annually on May I and November 1 of each year, at the rate
of three and one-quarter per centum (3 1/4%) per annum, at such office or
agency, in like coin or currency, from the interest payment date next preceding
the date of this bond, or if this bond be dated prior to May 1, 1955, then from
November 1, 1954, until this bond shall mature, according to its terms or on
prior redemption or by declaration or otherwise and at the rate of six per
centum (6%) per annum on any overdue principal and premium (if any) and (to the
extent permitted by law) on any overdue installment of interest.
This bond is one of an authorized issue of bonds of the Company known
as its First Mortgage Bonds, limited to One Hundred Million Dollars
($100,000,000) at any one time outstanding, issued and to be issued, in one or
more series, and equally and ratably secured (except insofar as a sinking fund
or other similar fund established in accordance with the provisions of the
Indenture may afford additional security for the bonds of any specific series)
by an indenture (hereinafter called the "Original Indenture") dated as of July
1, 1950, executed by the Company to THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS, as Trustee (hereinafter called the "Trustee"), as supplemented and
amended by a First Supplemental Indenture dated as of October 1, 1951, a Second
Supplemental Indenture dated as of June 1, 1952, a Third Supplemental Indenture
dated as of January 1, 1954, and a Fourth Supplemental Indenture dated as of
November 1, 1954, exe-
<PAGE> 12
11
cuted by the Company to the Trustee, to which Original Indenture, First
Supplemental Indenture, Second Supplemental Indenture, Third Supplemental
Indenture, Fourth Supplemental Indenture and all other indentures supplemental
thereto (said Original Indenture as so supplemented and amended being herein
called the "Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the security, the
rights of the holders of the bonds and of the Company in respect of such
security, the rights, duties and immunities of the Trustee, and the terms and
conditions upon which the bonds are, and are to be, secured. As provided in the
Indenture, the bonds may be issued in series for various principal sums, may
bear different dates and mature at different times, may bear interest at
different rates and may otherwise vary as in the Indenture provided or
permitted. This bond is one of the bonds described in the Indenture and
designated therein as "First Mortgage Bonds, Series F, 3 1/4%" (hereinafter
referred to as the "bonds of Series F11).
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 75% in aggregate
principal amount of all the bonds at the time outstanding, determined and
evidenced as in the Indenture provided, or in case the rights under the
Indenture of the holders of bonds of one or more, but less than all, of the
series of bonds outstanding shall be affected, then with the consent of the
holders of not less than 75% in aggregate principal amount of the bonds at the
time outstanding of the one or more series affected, determined and evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or modifying in any manner the rights of the holders of the bonds
and coupons; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any bonds, or reduce the rate or extend the time of
payment of interest thereon, or modify the terms of payment of principal at
maturity or by redemption, or otherwise modify the terms of payment of any bond,
without the consent of the holder of each bond so affected, or (ii) reduce the
percentage of bonds, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all bonds then
outstanding, or (iii) permit the creation of any lien ranking prior to or equal
with the lien of the Indenture on any of the mortgaged and pledged property
without the
<PAGE> 13
12
consent of the holders of all bonds then outstanding, or (iv) deprive the holder
of any outstanding bond of the lien of the Indenture on any of the mortgaged and
pledged property without the consent of the holder of each bond so affected. Any
such consent by the holder of this bond (unless effectively revoked as provided
in the Indenture) shall be conclusive and binding upon such holder and upon all
future holders of this bond, irrespective of whether or not any notation of such
consent is made upon this bond. No reference herein to the Indenture and no
provision of this bond or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay at the stated or
accelerated maturity herein and in the Indenture provided, the principal of and
interest and premium, if any, on this bond at the time and place and at the rate
and in the coin and currency herein prescribed.
The coupon bonds of Series F are issuable in the denomination of
$1,000. The registered bonds without coupons of Series F are issuable in
denominations of $1,000 and any multiple of $1,000. At the office or agency to
be maintained by the Company in said City of New Orleans and in the manner,
subject to the limitations, and upon payment of the charges provided in the
Indenture, coupon bonds of such series, with all unmatured coupons and any
matured coupons in default thereto appertaining, may be exchanged for a like
aggregate principal amount of registered bonds without coupons of such series,
and registered bonds without coupons of such series may be exchanged for a like
aggregate principal amount of coupon bonds of such series bearing all unmatured
coupons and any matured coupons in default or for a like aggregate principal
amount of registered bonds without coupons of such series of other authorized
denominations.
The bonds of Series F are entitled to the benefit of the Sinking Fund
provided for in Article II of the Fourth Supplemental Indenture.
The bonds of Series F may be redeemed, either at the option of the
Company or pursuant to certain requirements of the Indenture, on any date prior
to maturity, as a whole or from time to time in part, upon publication at least
once in each of four successive calendar weeks, upon any business day of each
such calendar week, of notice of such redemption in a newspaper printed in the
English language and customarily published on each business day and of general
circulation in the Borough of Manhattan, The City of New York, New York, and
like publication in a similar newspaper of said
<PAGE> 14
13
City of New Orleans, the first publication in each case to be not less than
thirty (30) days and not more than sixty (60) days before such redemption date
(provided, however, that if all the bonds of Series F at the time outstanding
shall be registered, bonds without coupons or coupon bonds registered as to
principal, such publication need not be made, but, in lieu thereof, such notice
may be given by mailing the same to each registered holder of a bond so to be
redeemed directed to his registered address not less than thirty (30) days and
not more than sixty (60) days before the redemption date); all as provided in
the Indenture.
If redeemed by the application of moneys in the Sinking Fund for bonds
of Series F, provided for in Article II of the Fourth Supplemental Indenture, or
moneys in the depreciation fund provided for in Section 5.07 of the Indenture or
by the application of moneys received by the Trustee in connection with any
release of property upon any acquisition thereof by any municipal corporation or
other governmental subdivision or governmental body or public authority, the
bonds of Series F are redeemable in such coin or currency of the United States
of America as at the time of payment shall be legal tender for public and
private debts, at the principal amount thereof together with accrued interest to
the date fixed for redemption, without premium, and if redeemed otherwise than
by the application of such moneys, the bonds of Series F are redeemable in like
coin or currency, at the redemption price at the time applicable, as set forth
in the following schedule, together with, in each case, interest accrued to the
date fixed for redemption:
(There will be inserted here in all registered bonds without
coupons of Series F, the same table of redemption prices and
corresponding dates as are specified for such redemption in the form of
coupon bond of Series F hereinabove set forth.)
If this bond is called for redemption and payment hereof is duly provided for as
specified in the Indenture, interest shall cease to accrue hereon from and after
the date fixed for redemption.
The Indenture provides that if the Company shall deposit with the
Trustee in trust for the purpose funds sufficient to pay the principal of all of
the bonds of any series, or such of the bonds of any series as have been or are
to be called for redemption, and premium, if any, thereon, and all interest
payable on such bonds to the date
<PAGE> 15
14
on which they become due and payable at maturity or upon redemption or
otherwise, and shall comply with the other provisions of the Indenture in
respect thereof, then from the date of such deposit such bonds shall no longer
be entitled to any lien or benefit under the Indenture.
The principal hereof may be declared or may become due prior to the
express date of the maturity hereof on the conditions, in the manner and at the
time set forth in the Indenture, upon the occurrence of a completed default as
in the Indenture provided; subject, however, to the right, under certain
circumstances, of the holders of a majority in principal amount of the bonds
outstanding to annul such declaration.
This bond is transferable as prescribed in the Indenture by the
registered holder hereof in person, or by his duly authorized attorney, at the
office or agency of the Company in said City of New Orleans, upon surrender and
cancellation of this bond. and upon payment, if the Company shall require it, of
the transfer charges prescribed in the Indenture, and thereupon, a new
registered bond or bonds without coupons of authorized denominations of the same
series and for the same aggregate principal amount will be issued to the
transferee in exchange herefor as provided in the Indenture. The Company and the
Trustee, any paying agent and any bond registrar may deem and treat the person
in whose name this bond is registered as the absolute owner hereof, whether or
not this bond shall be overdue, for the purpose of receiving payment and for all
other purposes and neither the Company nor the Trustee nor any paying agent nor
any bond registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this bond, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator or
any past, present or future subscriber to the capital stock, stockholder,
officer or director, as such, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitution or by the enforcement of any assessment or
otherwise, all such liability of incorporators, subscribers, stockholders,
officers and directors, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
<PAGE> 16
15
This bond shall not become valid or obligatory for any purpose until
THE NATIONAL BANK OF COMMERCE IN NEW ORLEANS, the Trustee under the Indenture,
or its successor thereunder, shall have signed the certificate of authentication
endorsed hereon.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this bond to be signed in its name by its President or one of its
Vice-Presidents and its corporate seal, or a facsimile thereof, to be affixed
hereto and attested by its Secretary or one of its Assistant Secretaries, and
this bond to be dated
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By
President.
Attest:
,
Secretary.
;and
WHEREAS, all acts and things prescribed by law and by the charter and
by-laws of the Company necessary to make the bonds of Series F, when executed by
the Company and authenticated by the Trustee, as in the Original Indenture
provided, valid, binding and legal obligations of the Company, entitled in all
respects to the security of the said Original Indenture and indentures
supplemental thereto, have been performed; and
WHEREAS, provision is made in Sections 5.10 and 17.01 of the Original
Indenture for such further instruments and indentures supplemental to the
Original Indenture, as may be necessary or proper to carry out more effectually
the purposes of the Original Indenture, and to subject to the lien of the
Indenture any property acquired after the date of the Original Indenture and
intended to be covered thereby, with the same force and effect as though
included in the granting clause thereof, and to add such further covenants,
restrictions or conditions for the protection of the mortgaged and pledged
property and the holders of the bonds as the Board of Directors of the Company
and the Trustee shall consider to be for the protection of the
<PAGE> 17
16
holders of the bonds, and to set forth the terms and provisions of any series of
bonds to be issued under the Indenture and the form of the bonds and coupons of
such series; and the Company since the date of the Original Indenture has
acquired additional property not heretofore specifically subjected to the lien
of the Original Indenture; and it is desired to add certain further covenants,
restrictions and conditions for the protection of the mortgaged and pledged
property and the holders of the bonds, as provided in this Fourth Supplemental
Indenture, which the Board of Directors of the Company and the Trustee consider
to be for the protection of the holders of the bonds; and the Company desires to
issue bonds of Series F; and the Company desires, pursuant to sub-section (e) of
Section 17.01, to modify the provisions of Section 2.02 of the Indenture to
provide for facsimile signatures of the President or a Vice President on bonds
to be issued thereunder; and the Company therefore deems it advisable to enter
into this Fourth Supplemental Indenture in the form and terms hereof; and
WHEREAS, the execution and delivery of this Fourth Supplemental
Indenture has been duly authorized by the Board of Directors of the Company at a
meeting duly called and held according to law, and all conditions and
requirements necessary to make this Fourth Supplemental Indenture a valid,
binding and legal instrument in accordance with its terms, for the purposes
herein expressed, and the execution and delivery hereof, in the form and terms
hereof, have been in all respects duly authorized;
Now, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH: That
Central Louisiana Electric Company, Inc., by way of further assurance and in
consideration of the premises and of the acceptance by the Trustee of the trusts
hereby created and of one dollar to it duly paid by the Trustee at or before the
ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged, and in order to further secure the payment of the principal of,
the premium, if any, and the interest on all bonds at any time issued and
outstanding under the Indenture, according to their tenor and effect, and the
performance and observance by the Company of all the covenants and conditions
herein and therein contained, and of said bonds, has executed and delivered this
Fourth Supplemental Indenture, and has granted, bargained, sold, aliened,
remised, released, conveyed,
<PAGE> 18
17
assigned, transferred, mortgaged, hypothecated, affected, pledged, set over and
confirmed, and by these presents does grant, bargain, sell, alien, remise,
release. convey, assign, transfer, mortgage, hypothecate, affect, pledge, set
over and confirm, unto The National Bank of Commerce in New Orleans, as Trustee,
and to its successors in the trust, and to its and their assigns forever, all
the following described properties of the Company, that is to say:
All properties, real, personal and mixed, tangible and intangible,
owned by the Company on the date of the execution hereof or which may be
hereafter acquired by it (except such property now owned or hereafter acquired
as is expressly excepted from the lien of the Indenture by the terms of the
Original Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture, the Third Supplemental Indenture or this Fourth Supplemental
Indenture). The property covered by the lien of the Indenture shall include
particularly, among other property without prejudice to the general and
particular descriptions of property contained in the Original Indenture, in the
First Supplemental Indenture, in the Second Supplemental Indenture, in the Third
Supplemental Indenture, and in this Fourth Supplemental Indenture, or to the
generality of the language now or hereafter contained in the Indenture, the
following described property:
I.
A. The following described real estate, together with all improvements
thereon, situated in the State of Louisiana:
Parcel 1. A parcel of land situated in the Southeast corner of the West
half of the Southeast quarter of the Southwest quarter of Section Thirty-Six
(36), Township Two (2) South, Range Nine (9) West, Parish of Beauregard, State
of Louisiana, further described as follows:
Beginning at a 3/4", iron pipe on the Southeast corner of said W1/2 of
SE1/4 of SW1/4 of Section 36, Township 2 South, Range 9 West, and running
parallel to a road on a bearing North 89 degrees 30 minutes West for a distance
of 250 feet to a stake in fence line; thence North 1 degree 15 minutes West for
a distance of 250 feet to a stake; thence South 89 degrees 30 minutes East for a
distance of 250 feet to a stake in fence line, being the dividing line between
this tract and a tract owned by Covington Cooley; thence South 1 degree 15
minutes East
<PAGE> 19
18
for a distance of 250 feet to the point of beginning. Containing 1.43 acres,
more or less.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Lewis H. Ford and Mable L. Ford by deed dated January 26, 1954, before
Allen R. LeCompte, Notary Public, for the Parish of Beauregard, recorded in
Conveyance Book 124, Entry No. 178, records of Beauregard Parish, Louisiana.
Parcel 2. A certain tract or parcel of vacant land, containing one (1)
acre, situated in the S1/2, of NW1/4 of NE1/4 of Section 46, T3S, R1E, La. Mer.,
in Evangelize Parish, State of Louisiana, and being more particularly described
as beginning at a stake in the S W, corner of the NW1/4 of NE1/4, Section 46,
T3S, R1E, and running south for a distance of 229.5 feet to a stake, thence N 87
degrees 00 minutes East for a distance of 863.3 feet to a point of beginning;
thence N 3 degrees West for a distance of 208.7 feet, thence N 87 degrees 00
minutes East for a distance of 208.7 feet, thence S 3 degrees East for a
distance of 208.7 feet, thence S 87 degrees West for a distance of 208.7 feet to
point of beginning; together with all rights of ingress and egress, and more
particularly a right-of-way leading from the property herein conveyed to the
main highway. Containing 1 acre, more or less; all as shown by plat of survey
attached to and made part of deed from Earl Thibodeaux to Central Louisiana
Electric Company, Inc., dated March 3, 1954.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Earl Thibodeaux by deed dated March 3, 1954, before Roland B. Reed, Notary
Public for the Parish of Evangelize, recorded in Conveyance Book E-127, page
440, Entry No. 152019, records of Evangelize Parish, Louisiana.
There is located on Parcel 2 above described an electric switching
station.
Parcel 3. A certain piece or parcel of real estate, together with all
buildings and improvements thereon, and all rights, ways and privileges
thereunto belonging, located in Section 16, Township 3, South Range 3 West,
Allen Parish, State of Louisiana, and being more particularly described as
follows, to-wit:
Begin on the bank of the drainage canal south of the property herein
conveyed and from the point of beginning run along the right-of-way
<PAGE> 20
19
of the gravel road north 26(degree)-30' east, a distance of 24, to establish the
southwest corner or point of beginning of the property herein bought and sold.
From this point so established, proceed east a distance of 262 feet, thence
north a distance of 250 feet, thence west a distance of 150 feet to a point on
the right-of-way of Old Highway 24; from this point proceed south along the
right-of-way of the highway 26(degree)-30' AV, est, a distance of 279 feet to
the point of beginning, the said property sold containing 1.2 acres, more or
less; all as shown by plat of survey attached to and made part of deed from
Industrial Lumber Company, Inc. to Central Louisiana Electric Co., Inc., dated
March 2, 1954.
Being property acquired by Central Louisiana Electric Company, Inc.
from Industrial Lumber Company, Inc., by deed dated March 2, 1954, before Gladys
Tarver, Notary Public for the Parish of Rapides, recorded in Conveyance Book 96,
Page 18, records of Allen Parish, Louisiana.
There is located on Parcel 3 above described an electric substation.
Parcel 4. A certain tract or parcel of land, unimproved, together with
all rights, ways, privileges and servitudes thereunto belonging, situated in the
sixth Ward of the Parish of Iberia, State of Louisiana, in Section 21, Township
12 South, Range 7 East, containing five (5) acres in superficial area, bounded
on the North by the center line of Little Bayou, on the South by remainder of
property of vendor, Sidney St. Marie, on the East by property of Ed. LaSalle,
and on the West by Big Jim Lane (sometimes referred to as Andre Road), and being
more particularly described as follows:
Beginning at a point where the east side of Big Jim Lane (Andre Road)
intersects the center of Little Bayou; thence running south 61(degree)39' east a
distance of 280 feet along the center line of Little Bayou; thence south
27(degree)35' west a distance of 717.4 feet along the center line of an existing
ditch (which line is the boundary line between the properties of Sidney St.
Marie and Ed LaSalle); thence in a northwesterly direction a distance of 324.6
feet to the east side of Big Jim Lane (Andre Road); thence north 31(degree)23'
east a distance of 717.4 feet to the point of beginning.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Sidney St. Marie by deed dated March 27, 1954, before Jacob
<PAGE> 21
20
S. Landry, Notary Public for the Parish of Iberia, recorded in Conveyance Book
237, Entry No. 90804, records of Iberia Parish, Louisiana.
There is located on Parcel 4 above described an electric service
center.
Parcel 5. That certain tract or parcel of ground, together with any
improvements thereon, situated in Duson's Third Addition to the City of Crowley,
Acadia Parish, Louisiana, and known and described as the Eastern Fifty (E. 50')
Feet of Lot Eight (8) of Block Twenty(20) of the said addition, as per plat
thereof on file and of record in the Office of the Clerk of Court of Acadia
Parish, Louisiana; said parcel having a front of Forty (401) Feet on Jacobs
Avenue of said City and extending back from said avenue, between parallel lines,
a distance of Fifty (50') Feet.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Mary Yokum. Morris and Willis Morris by deed dated May 21, 1954, before
Jos. S. Gueno, Jr., Notary Public for the Parish of Acadia, recorded in
Conveyance Book L-13, page 408, Entry No. 266,013, records of Acadia Parish,
Louisiana.
There is located on Parcel 5 above described an electric substation.
Parcel 6. A certain plot of ground, containing approximately one (1)
acre, lying and being situated in Section 43, Township 10 South, Range 5 East,
in the Seventh Ward of Lafayette Parish, Louisiana, and bounded as follows:
Commencing at the South corner of the property of Leonce Guillot in Section 43,
Township 10 South, Range 5 East, at the intersection of the Southern Pacific
Railroad spur track leading to Long Plantation and a Public graveled road, run
thence North 43(degree)20' West along said public road a distance of 203.3 feet;
run thence North 46(degree)40' East a distance of 206.7 feet; run thence South
43(degree)20' East a distance of 208.0 feet to the Southern Pacific Railroad
spur track right-of-way; run thence in a southwesterly direction along the
Southern Pacific Railroad spur track right-of-way to the point of beginning; the
above one (1) acre plot being bounded on the Northeast and Northwest by property
of Leonce Guillot, on the Southeast by the Southern Pacific Railroad spur track
leading to Long Plantation, and on the Southwest by a public graveled road; all
as shown by plat attached to
<PAGE> 22
21
and made part of deed from Leonce Guillot to Central Louisiana Electric Co.,
Inc., dated July 8, 1954.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Leonce Guillot by deed dated July 8, 1954, before Warren Gankendorff,
Notary Public for Lafayette Parish, recorded in Conveyance Book Z-21, page 9,
Entry No. 305,759, records of Lafayette Parish, Louisiana.
There is located on Parcel 6 above described an electric substation.
Parcel 7. That certain tract of land in the Town of Patterson, St. Mary
Parish, State of Louisiana, located at or near the southern end of First Street
of said town, having a front of seventy-seven (77) feet, more or less, on an
unnamed street which crosses the end of First Street, and a depth between
parallel lines of fifty (50) feet, being bounded on the north by the unnamed
street, south by property of vendor, east by vendee's substation, and west by
property of Peter Lipari.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Volcar J. Roundtree by deed dated June 23, 1954, before Wm.. Robt. Marin,
Notary Public for the Parish of St. Mary, recorded in Conveyance Book S-U, Entry
No. 90,493, records of St. Mary Parish, Louisiana.
There is located on Parcel 7 above described an electric substation.
Parcel 8. A certain tract of land, together with all buildings and
improvements thereon, situated in Pineville, Rapides Parish, State of Louisiana,
and being lots one, two, three, four, five and six of the Mary Hunter David
Subdivision No. 2, having a combined frontage of 305.8 feet on Greer Street, in
accordance with the official plat of said Subdivision made by Pan-American
Engineers, dated August 12, 1952, recorded at Plat Book 8, Page 138, records of
Rapides Parish, Louisiana. Reference to the aforesaid official plat of said
subdivision being made for greater certainty of description.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Mrs. Mary Hunter David by deed dated September 17, 1954, before John H.
McSween, Notary Public for Parish of Rapides, re-
<PAGE> 23
22
corded in Conveyance Book 468, Page No. 612, records of Rapides Parish,
Louisiana.
Parcel 9. A certain tract of land on the southerly side of Greer Street
in the Town of Pineville, Parish of Rapides, State of Louisiana, fronting 182
feet, more or less, on said Greer Street, and running back between parallel
lines to the toe of the new Pineville levee, bounded on the side nearest Sanders
Street by property owned by Mrs. Guy L. Hilborn, and on the other side by
property owned by Greer, and being part of Lots Four (4) and Five (5) of the
division of the McGimsey Estate, as shown by plat attached to original No.
110644 in the Office of the Clerk and Recorder in and for Rapides Parish,
Louisiana; all as is particularly shown by plat of survey by Irion Lafargue,
Registered Surveyor, attached to and made part of deed from Mrs. Mattie Burns
Schaedel to Central Louisiana Electric Co., Inc., dated September 17, 1954.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Mrs. Mattie Burns Schaedel by deed dated September 17, 1954, before John H.
McSween, Notary Public for Parish of Rapides, recorded in Conveyance Book 468,
Page 609, records of Rapides Parish, Louisiana.
Parcel 10. Two certain parcels or lots of ground, together with all
buildings and improvements thereon, rights, ways, privileges and appurtenances
thereto belonging, situated in the City of Pineville, Parish of Rapides, State
of Louisiana, and particularly described as follows:
1. Lot Seven (7) of Mary Hunter David Subdivision No. 2, as per
plat of survey of said Subdivision by T. C. David, C. E., dated August
12, 1952, recorded in Plat Book 8, page 138, records of Rapides Parish,
Louisiana, to which plat reference is made for greater certainty of
description, said Lot 7 having a frontage of 12.5 feet on Greer Street
and extending back therefrom between parallel lines to the toe of the
new Pineville levee; being that property acquired by Mrs. Hattie Burns
Greer from Mrs. Mary Hunter David by deed dated August 21, 1952,
recorded in Conveyance Book 437, page 476, records of Rapides Parish,
Louisiana.
<PAGE> 24
23
2. Begin at the point on the Southwestern line of Greer Street
where the Western line of Lot Seven (7) of the Mary 7 Hunter David
Subdivision intersects said Southwestern line of Greer Street and run
thence North 52 degrees 34 minutes West along Greer Street and toward
Sanders Street the distance of 88 feet, thus establishing the frontage
of said property on Greer Street, and from the frontage so established
run back between parallel lines to the toe of the new Pineville levee;
all as is more particularly shown by plat of survey by Irion Lafargue,
Registered Surveyor, dated September 14, 1954, blueprint of which said
survey is hereto at tached and made part hereof and paraphed "Ne
Varietur" for identification herewith, said property being that
designated "W. E. Greer" on said plat; being that property acquired by
Mrs. Hattie Burns Greer from Mrs. Alattie Burns Schaedel by deed dated
March 21, 1944, recorded in Conveyance Book 289, page 4, records of
Rapides Parish, Louisiana.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Mrs. Hattie Burns Greer and William E. Greer by deed dated September
17,1954, before John H. McSween, Notary Public for Parish of Rapides, recorded
in Conveyance Book 468, page No. 610, records of Rapides Parish, Louisiana.
Parcel 11. A certain lot or parcel of ground, together with all rights,
ways and privileges thereto belonging, situated in the City of Pineville, Parish
of Rapides, State of Louisiana, more particularly described as follows:
Lot Two (2) of Block One (1) of the Holmes Subdivision, in Section 21,
Township 4 North, Range 1 West, in said City of Pineville, Louisiana, as shown
by plat of survey, of said Holmes Subdivision by Irion Lafargue, R. S., dated
July 16, 1948, said lot having a frontage of 50 feet on LeBlanc Street, a depth
on the side next to Lot One (1) of said Block One (1) of 155 feet, a depth on
the side next to Lot Three (3) of said Block One (1) of 155.2 feet, and a width
in the rear of 50 feet.
Being property acquired by Central Louisiana Electric Company, Inc.,
from William E. Holmes et al by deed dated September 20, 1954, before John H.
McSween, Notary Public, recorded in Conveyance Book 470, Page 75, records of
Rapides Parish, Louisiana.
<PAGE> 25
24
Parcel 12. A certain piece, parcel or lot of ground, together with all
buildings and improvements thereon, rights, ways, privileges and appurtenances
thereto belonging, situated in the City of Pineville, Parish of Rapides, State
of Louisiana, particularly described as follows:
Start at the point in the Southwestern line of Greer Street where the
Western line of Lot Seven (7) of the Mary Hunter David Subdivision No. 2
intersects said Southwestern line of Greer Street, and run thence North 52
degrees 34 minutes West along Greer Street and toward Sanders Street the
distance of 270 feet to the point of beginning of the property herein described
and conveyed; from said point of beginning continue North 52 degrees 34 minutes
and est along Greer Street towards Sanders Street the distance of 83.2 feet;
thence turn to the left with an interior angle of 94 degrees 35 minutes and run
the distance of 64.7 feet to the toe of the new Pineville levee; thence turn to
the left and run South 39 degrees 33 minutes East along the toe of the new levee
the distance of 90.2 feet; thence turn to the left and run along the line
dividing the property herein described and the property of Mrs. Mattie Burns
Schaedel the distance of 82.8 feet to the point of beginning on the Southwestern
line of Greer Street; said property being bounded in front by Greer Street, on
the side towards Sanders Street by property of Ruby Bennett and the Levee Board,
in the rear by the toe of the new Pineville levee, and on the other side by
property of Mrs. Mattie Burns Schaedel, all as is more particularly shown by
plat of survey by Irion Lafargue, R. S., dated September 14, 1954, said property
being a portion of the property acquired by the said Mrs. Guy L. Hilborn as
surviving widow in community and universal legatee of Richard O'Shee, as shown
by judgment dated July 6,1920, recorded in Conveyance Book 197, Page 409,
records of Rapides Parish, Louisiana.
Being property acquired by Central Louisiana Electric Company, Inc.,
from Mrs. Guy L. Hilborn by deed dated September 17, 1954, before John H.
McSween, Notary Public for Rapides Parish, recorded in Conveyance Book 468, page
No. 611, records of Rapides Parish, Louisiana.
Parcel 13. A certain lot of ground, with all buildings and improvements
thereon, together with all rights, ways, privileges, servitudes and
appurtenances thereunto appertaining, situated at the intersection
<PAGE> 26
25
of Corinne and Armentor Streets in the City of New Iberia, Parish of Iberia,
State of Louisiana, containing and measuring fifty-four and 16 /100 (54.16) feet
front on Corinne Street by a depth, between diverging lines, of one hundred
thirty-four (134) feet, having a width across the rear of fifty-five (55) feet,
bounded on the North by said Armentor Street, on the South by Lot 2 of Block F
according to a plat of survey of the Armentor Subdivision by W. K. Frantz, C.
E., dated December, 1935, of record in Miscellaneous Book 7, at folio 329 of the
records of Iberia Parish, Louisiana, on the East by a portion of Lot 14 of said
Block F, on the West by said Corinne Street, and being Lot 1 of said Block F of
said Armentor Subdivision.
Being the same property acquired by Ella Stansbury Delcambre and Michel
Delcambre from Leon Meyers by act dated February 3rd, 1941, of record in
Conveyance Book 141, at folio 51, under Entry No. 39210 of the records of Iberia
Parish, Louisiana, the interest of Ella Stansbury Delcambre therein having been
acquired by Michel Delcambre by act dated November 26th, 1947, of record in
Conveyance Book 176, at folio 446, under Entry No. 73038 of the records of
Iberia Parish, Louisiana.
Being the same property acquired by George Gerlach from Michel
Delcambre by deed dated November 2, 1954, before Jack J. Cousin, Notary Public
for Parish of Iberia, recorded in Conveyance Book 250, Entry No. 93271, records
of Iberia Parish, Louisiana.
Being the same property transferred to Central Louisiana Electric
Company, Inc., by George Gerlach, acting as agent of and purchasing for Central
Louisiana Electric Company, Inc., by deed dated November 9. 1954, before Jack J.
Cousin, Notary Public for Parish of Iberia, recorded in Conveyance Book 250,
Entry No. 93272, records of Iberia Parish, Louisiana.
B. The following described lease and easement, together with all
buildings and improvements on the land subject thereto, and all machinery and
equipment of every nature, kind and description presently located on or
hereafter placed on the property subject to said lease and easement, to-wit:
1. That certain lease granted by Mabry Chandler Lumber Company, Inc. to
Central Louisiana Electric Company, Inc. dated June 28,
<PAGE> 27
26
1954 by act before Bea Erwin, Notary Public for St. Tammany Parish, Louisiana,
for the term of twenty-five years, recorded in Con. Book 222, page 96, records
of St. Tammany Parish, Louisiana, the land subject to said lease being
particularly described as follows: A thirty foot square of ground, located in
Section 35, T. 6 S., R. 11 E., Greensburg District, St. Tammany Parish,
Louisiana, starting at the NW corner of said Section 35, being adjacent to
Section 26 and 42, and run S. 0(degree)15' E, 2,672.6 feet, thence N
86(degree)30' E, 1,366.3 feet, thence S 3(degree)30' W 10' to the NW corner of
the leased property, the point of beginning. From said point of beginning so
established, run S 2(degree)30' W 30 feet to an iron stake, thence S
86(degree)30' E 30 feet to an iron stake, thence N 3(degree) 30'E 30 feet to an
iron stake, thence N 86(degree)30' W 30 feet to the point of beginning.
There is located on the above described leased property, an electric
substation.
2. That certain right, privilege, easement or servitude granted by the
Louisiana Board of Institutions to Central Louisiana Electric Company, Inc., by
act dated September 20th, 1954, recorded in Conveyance Book 469, page 283,
Records of Rapides Parish, Louisiana, under Filing No. 387323, to construct,
operate, maintain, repair, replace or remove an electric substation on the
following described property owned by Central Louisiana State Hospital situated
in Rapides Parish, Louisiana, to-wit:
A certain parcel of ground in Section 17, T. 4 N., R. 1 W., in the
Parish of Rapides, State of Louisiana, particularly described as follows: Start
at the point on the South line of Section 17, T. 4 N., R. 1 W., where the West
line of the Huey P. Long Hospital property intersects said South line of said
Section 17, and run thence toward Red River on said Section line the distance of
503.651, more or less, on said South line of said Section 17, the point of
beginning of the property herein described; thence continue along said South
line of said Section 17 toward Red River the distance of 208.71 feet; thence
turn at an angle of 900 to the right and run Northwesterly the distance of
208.71 feet; thence turn at an angle of 901 to the right and run Easterly the
distance of 208.71 feet; thence turn at an angle of 900 to the right and run
Southeasterly the distance of 208.71 feet to the point of beginning on the South
line of said Section 17, T. 4 N., R. 1 IV., containing one (1) acre, more or
less; all as more fully shown by plat attached to said act and
<PAGE> 28
27
made part thereof. Said servitude or easement being for such period of time as
said property is used by the grantee, its successors or assigns, for the
purposes set forth in said act.
C. The following described gas pipe line:
1. That certain gas pipe line consisting of approximately 20.4572 miles
of 8-inch pipe in place, beginning at a point near The Texas Pipe Line Company's
Station 8470+47 located in Section 13, Township 14 South, Range 9 East and
ending at a point near The Texas Pipe Line Company's Station 9550+07 located in
Section 26, Township 16 South, Range 12 East, together with all fittings on said
line and bulkhead crossing permits and the right to use the rights of way over
which said pipe line is laid, and the right to use, enjoy and operate under such
franchises and permits as have been granted by public bodies and governmental
authorities with respect to said pipe line. All in the Parish of St. Mary, State
of Louisiana. Acquired by Central Louisiana Electric Company, Inc. from The
Texas Pipe Line Company by deed dated December 14, 1953, recorded in Conveyance
Book 8-X, Entry No. 91,193, records of St. Mary Parish, State of Louisiana. Also
2.361 miles of 6-inch pipe line constructed by Central Louisiana Electric
Company, Inc., beginning at Station 0+00 of The Texas Pipe Line Company's
recycling plant at Bateman Lake in Section 16, Township 16 South, Range 12 East,
and extending to a connection with the above described 8-inch pipe line at
Station 124+66, and 1500 feet of 6-inch pipe line constructed by Central
Louisiana Electric Company Inc., beginning at The Texas Pipe Line Company's
Station 8470+47 in Section 13, Township 14 South, Range 9 East, and extending to
the Teche generating station of said Central Louisiana Electric Company, Inc.,
in said Section 13, Township 14 South, Range 9 East, all in the Parish of St.
Mary, State of Louisiana, together with all rights of way owned and held by
Central Louisiana Electric Company, Inc. in, on or through which said pipe lines
are laid, which grants of rights-of-way are duly recorded in the Conveyance
Records of St.
Mary Parish, Louisiana.
D. The following described franchises, grants, immunities, privileges
and rights of the Company granted by the governing authorities of the cities,
towns and parishes enumerated in the schedule
<PAGE> 29
28
below and all renewals, extensions and modifications of said franchises, grants,
immunities, privileges and rights or any of them:
1. Those certain franchises granted by the governing bodies of the
following named towns and villages in the State of Louisiana, to-wit:
(a) Electric franchise granted by the Village of Dry Prong to
Central Louisiana Electric Company, Inc., by ordinance enacted August
4, 1952, for a term of 23 years.
(b) Electric franchise granted by the Town of Glenmora to Central
Louisiana Electric Company, Inc., by ordinance enacted August 10, 1954,
for a term of 25 years.
(c) Electric franchise granted by the Village of Rosepine to
Central Louisiana Electric Company, Inc., by ordinance enacted July 3,
1952, for a term of 25 years.
2. Those certain franchises granted by the governing bodies of the
following named parishes in the State of Louisiana, to-wit:
(a) Gas franchise granted by the Parish of Assumption to Central
Louisiana Electric Company, Inc., by ordinance enacted October 13,
1953, for a term of 50 years.
(b) Water franchise granted by the Parish of Calcasieu to Central
Louisiana Electric Company, Inc., by ordinance enacted October 7, 1952,
for a term of 25 years.
(c) Electric franchise granted by the Parish of DeSoto to Central
Louisiana Electric Company, Inc., by ordinance enacted August 14, 1952,
for a term of 25 years.
(d) Gas franchise granted by the Parish of Iberia to Central
Louisiana Electric Company, Inc., by ordinance enacted November 12,
1953, for a term of 50 years.
(e) Electric franchise granted by the Parish of Lafayette to
Central Louisiana Electric Company, Inc., by ordinance enacted
September 11, 1952, for a term of 99 years.
(f) Gas franchise granted by the Parish of St. Mary to Central
Louisiana Electric Company, Inc., by ordinance enacted November 12,
1953, for a term of 50 years.
<PAGE> 30
29
(g) Electric franchise granted by the Parish of St. 'Mary to
Central Louisiana Electric Company, Inc., by ordinance enacted .May 14,
1954, for a term of 50 years.
(h) Electric franchise granted to the Parish of St. Tammany to
Central Louisiana Electric Company, Inc., by ordinance enacted August
21, 1932, for a term of 25 years.
(i) Gas franchise granted by the Parish of Terrebonne to Central
Louisiana Electric Company, Inc., by ordinance enacted November 14,
1933, for a term of 50 years.
(j) Electric franchise granted by the Parish of Vermilion to
Central Louisiana Electric Company, Inc., by ordinance enacted
September 16, 1952, for a term of 25 years.
E. The following described electric transmission lines:
1. A 138 K`V transmission line commencing at Coughlin Generating
Plant at St. Landry, Parish of Evangelize, State of Louisiana, and
extending a distance of approximately fifty (50) miles, through the
Parishes of Evangelize, St. Landry and Acadia, to the City of Crowley,
Parish of Acadia, State of Louisiana.
2. A 138 KV transmission line commencing at Shady Oaks, in the
Parish of Rapides, State of Louisiana, and extending a distance of
approximately ten (10) miles to Beaver Creek, in the Parish of Rapides,
State of Louisiana, a connecting point with Louisiana Power & Light
Company.
3. A 138 KV transmission line commencing at Crowley, in the Parish
of Acadia, State of Louisiana, and extending a distance of
approximately forty-eight (48) miles, through the Parishes of Acadia,
Vermilion and Iberia, State of Louisiana, to the City of Jeanerette, in
the Parish of Iberia, State of Louisiana.
4. A 138 KV transmission line commencing at Teche Generating Plant
at Baldwin, in the Parish of St. Mary, State of Louisiana, extending a
distance of approximately ten (10) miles, through the Parishes of
St.'Mary and Iberia, State of Louisiana, to the City of Jeanerette, in
the Parish of Iberia, State of Louisiana.
<PAGE> 31
30
5. A 138 KV transmission line commencing at a point on existing
138 K-V transmission line near Miller's Lake, in the Parish of
Evangelize, State of Louisiana, and extending a distance of
approximately fifty-two (52) miles, through the Parishes of Evangelize,
Allen and Beauregard, to the Town of DeRidder, in the Parish of
Beauregard, State of Louisiana.
II.
All real estate or interest therein, now owned or which may be
hereafter acquired by the Company for use or which may be used by it in
connection with its business as an electric, gas and water company, together
with all of the right, title, and interest of the Company, now owned or
hereafter acquired in and to any and all works, plants, buildings, structures,
erections, and constructions now or hereafter placed upon any of the real estate
mentioned, described or referred to as being subject to the lien of the
Indenture, with the fixtures, tenements, hereditaments, and appurtenances
thereunto appertaining or belonging.
III
The Following Described Property, Wherever Situate:
First: The electric generating plants and electric transmission and/or
distribution systems now or hereafter owned by the Company, and any electric
generating plants and electric transmission and/or distribution systems
hereafter constructed or acquired by the Company, and any additions to or
extensions of any such existing or future electric generating plants and/or
electric transmission and/or distribution systems, together with all engines,
dynamos, motors, generators, boilers, turbines, pole lines, poles, wires,
crossarms, insulators, transformers, meters, buildings, erections, structures,
stations, substations, power houses, power producing and power transmitting
equipment, water, water rights, water wheels, headworks, race-ways, hydraulics
works, hydro-electric plants, cables, conduits, instruments, apparatus,
appliances, machinery, facilities, fixtures and all other property used or
provided for use in the construction, repair, maintenance and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also
<PAGE> 32
31
with all the rights, privileges, franchises, easements, licenses, ordinances,
rights of way, liberties, immunities and permits of the Company, howsoever
conferred or acquired, and whether now owned or hereafter to be acquired, with
respect to the construction, maintenance, repair and/or operation of said
electric generating plants and electric transmission and/or distribution
systems, and each of them, and any additions thereto and extensions thereof.
Second: The gas generating plants, gas storage plants and gas gathering
and/or transmission and/or distribution systems now owned by the Company, and
any gas generating plants, gas storage plants and/or gas transmission and/or
distribution systems hereafter constructed or acquired by the Company, and any
additions to or extensions of any such existing or future plants and systems,
together with the buildings, erections, structures, generating and purifying
apparatus, holders, engines, boilers, benches, retorts, tanks, pipe lines,
connections, service pipes, meters, conduits, instruments, appliances,
apparatus, facilities, machinery, fixtures and all other property used or
provided for use in the construction, maintenance, repair and/or operation
thereof, both that now owned and that which may be hereafter acquired by the
Company, and together also with all rights, privileges, rights of way,
franchises, licenses, easements, grants, liberties, immunities, permits and
ordinances of the Company, howsoever conferred or acquired, and whether now
owned or hereafter to be acquired, with respect to the construction,
maintenance, repair, and/or operation of said gas generating plants, gas storage
plants and gas gathering and/or transmission and/or distribution systems, and
each of them, and any additions thereto and extensions thereof.
Third: The waterworks plants and water distribution systems now owned
by the Company, and any waterworks plants and/or waterworks distribution systems
hereafter constructed or acquired by the Company together with the buildings,
structures, erections, pumps, pumping machinery, reservoirs, filters,
filter-galleries, chlorinating equipment, tanks, wells, water rights, water
supply, water mains, hydrants, pipelines, service pipes, meters, standpipes,
engine, boilers, apparatus, appliances, facilities, machinery, equipment,
fixtures and all other property used or provided for use in the construction,
maintenance, repair and/or operation thereof, both that now owned and that which
may be hereafter acquired by the Company, and together
<PAGE> 33
32
also with all of the rights, privileges, rights of way, franchises, licenses,
easements, permits, liberties, immunities, grants and ordinances of the Company,
howsoever conferred or acquired, and whether now owned or hereafter to be
acquired, with respect to the construction, maintenance, repair and operation of
said plants and systems and each of them, and any additions thereto and
extensions thereof.
TO HAVE AND To HOLD all such properties, real, personal and mixed,
granted, bargained, sold, aliened, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, affected, pledged, set over or confirmed
by the Company as aforesaid, or intended so to be, unto the Trustee and its
successors in the trust hereby created and its and their assigns forever;
SUBJECT, HOWEVER, to existing leases, to easements and other rights of
way for pole lines and other similar encumbrances and restrictions which the
Company hereby certifies, in its judgment, do not impair the use of said
property by the Company in its business, to liens securing indebtedness which
has neither been assumed by the Company nor upon which it customarily pays
interest charges, existing solely upon real property, or rights in and relating
thereto, which real property or rights have been or may be acquired for
right-of-way purposes, to liens of taxes and assessments for the current year
and taxes and assessments not yet due, to alleys, streets and highways that may
run across or encroach upon said lands, and to liens, if any, incidental to
construction; and, with respect to any property which the Company may hereafter
acquire, to all terms, conditions, agreements, covenants, exceptions and
reservations expressed or provided in such deeds and other instruments,
respectively, under and by virtue of which the Company shall hereafter acquire
the same and to any and all liens existing thereon at the time of such
acquisition within the restrictions contained in the Indenture; and subject also
to other liens and encumbrances of the character defined in the Indenture as
"permitted liens" insofar as the same may attach to any of the property embraced
herein:
SAVING AND EXCEPTING, however, from the properties mortgaged and
pledged by the Indenture (whether now owned by the Company or hereafter acquired
by it) all bills, notes and accounts receivable,
<PAGE> 34
33
cash on hand and in bank, contracts, merchandise and appliances kept for
purposes of sale, and all bonds, obligations, evidences of indebtedness, shares
of stock and other securities, and certificates or evidences of interest
therein-other than any of the foregoing which may be hereafter specifically
transferred or assigned to or pledged or deposited with the Trustee under the
Indenture or required by the provisions of the Indenture so to be-and all office
furniture and equipment, motor vehicles, tools, testing equipment and consumable
materials and supplies; provided, however, that, if upon the happening of an
event of default as in the Indenture defined, the Trustee or any receiver
appointed under the Indenture shall enter upon and take possession of the
mortgaged property, the Trustee or such receiver may, to the extent permitted by
law, at the same time likewise take possession of any and all of the property
described in this paragraph then on hand and use and administer the same to the
extent as if such property were part of the mortgaged property, unless and until
such event of default shall be remedied or waived and possession of the
mortgaged property restored to the Company, its successors or assigns.
ALSO, SAVING AND EXCEPTING, however, from the property hereby mortgaged
and pledged:
(a) All parcels of land now owned or hereafter acquired by the Company
and not used by it or useful in connection with its business as an electric, gas
or water company or as an electric, gas or water utility.
(b) All machinery, equipment, fixtures, supplies and materials now used
or hereafter acquired for use in connection with the ice and cold storage, ice
cream and dairy business of the Company.
(c) All motor vehicles now used or hereafter acquired for use in
connection with the ice and cold storage, ice cream and dairy business of the
Company, together with all tires, spare parts, materials and supplies
appertaining thereto.
(d) All machinery, equipment, fixtures, supplies and materials, now
owned or hereafter acquired, not used by or useful to the Company in its
business as an electric, gas or water company or as an electric, gas or water
utility, not located on any parcel of real estate
<PAGE> 35
34
now owned or hereafter acquired, referred to as being subject to the lien of the
Indenture.
(e) All additions, improvements, betterments, extensions and
replacements now or hereafter made to or acquired for or in connection with the
property set forth in paragraphs (a), (b), (c) and (d) above.
IN TRUST NEVERTHELESS, upon the terms and trusts herein and in the
Original Indenture, the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture set forth;
PROVIDED, HOWEVER, and these presents are upon the condition that if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and interest on all said bonds, together with the premium, if any,
payable on such of said bonds as may have been called for redemption prior to
maturity, or shall provide, as permitted by the Indenture, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon for principal, interest and premium, if any, and if the Company shall
also pay or cause to be paid all other sums payable under the Indenture by it,
then the Indenture and the estate and rights thereby granted shall cease,
determine and be void, otherwise to be and remain in full force and effect.
IT IS HEREBY FURTHER COVENANTED, DECLARED AND AGREED by and between the
Company and the Trustee, for the benefit of those who shall hold said bonds and
coupons or any of them, as follows:
ARTICLE I.
DESCRIPTION OF BONDS OF SERIES F.
SECTION 1.1. The sixth series of bonds to be issued under the Indenture
and secured thereby is hereby created, which shall be designated, and
distinguished from the bonds of all other series, by the title "First Mortgage
Bonds, Series F, 3 1/4%", elsewhere herein referred to as the "bonds of Series
F".
Except as otherwise provided in Section 2.08 of the Indenture with
respect to destroyed, lost or stolen bonds, the aggregate principal amount of
the bonds of Series F which may be outstanding at any one time shall be
$3,000,000.
<PAGE> 36
35
The bonds of Series F shall be dated, and shall bear interest from
November 1, 1934, except as provided in Section 2.03 of the Indenture with
respect to registered bonds without coupons, and shall be due November 1, 1984,
and shall bear interest at the rate of three and one-quarter per centum (3 1/4%)
per annum, payable semi-annually on the first day of Kay and the first day of
November in each year, until they shall mature, according to their terms or on
prior redemption or by declaration or otherwise, and at the rate of six per
centum (6%) per annum on any overdue principal and premium (if any) and (to the
extent permitted by law) on any overdue installment of interest. The principal
of and the premium (if any) and the interest on the bonds of Series F shall be
payable at the office or agency of the Company in the City of New Orleans,
Louisiana, in such coin or currency of the United States of America as, at the
time of payment, shall be legal tender for public and private debts.
The bonds of Series F shall be redeemable, either at the option of the
Company or pursuant to any provision of the Indenture requiring such redemption,
either as a whole or in part from time to time, at any time prior to maturity,
upon notice as provided in Section 8.02 of the Indenture, published in a
newspaper printed in the English language and customarily published on each
business day and of general circulation in the Borough of Manhattan, The City of
New York, New York, and like publication in a similar newspaper of the City of
New Orleans, at least once in each of four (4) successive calendar weeks upon
any business day of each such calendar week, the first publication to be not
less than thirty (30) days and not more than sixty (60) days before such
redemption date (or upon mailing of such notice of redemption as provided in the
first paragraph of Section 8.02 of the Indenture in the event such paragraph
shall be applicable). If redeemed by the application of moneys in the Sinking
Fund for bonds of Series F provided for in Article II of this Fourth
Supplemental Indenture or moneys in the depreciation fund provided for in
Section 5.07 of the Indenture, or by the application of moneys received by the
Trustee in connection with any release of property upon any acquisition thereof
by any municipal corporation or other governmental subdivision or governmental
body or public authority, the bonds of Series F are redeemable at the principal
amount thereof, together with interest accrued to the date fixed for redemption,
without premium. If redeemed otherwise than by the application of such
<PAGE> 37
36
moneys, the bonds of Series F are redeemable at the redemption price at the time
applicable specified in the schedule contained in the form of coupon bond of
Series F set forth in the recitals hereof, to-ether with interest accrued to the
date fixed for redemption.
Coupon bonds of Series F shall be issuable in the denomination of
$1,000 and shall be registerable as to principal. Registered bonds without
coupons of Series F shall be issuable in denominations of $1,000 and any
multiple of $1,000. Bonds of Series F shall be interchangeable at the option of
the holders thereof, in like aggregate principal amounts, coupon bonds for
registered bonds without coupons, registered bonds without coupons for coupon
bonds and the several denominations of registered bonds without coupons.
ARTICLE II.
SINKING FUND FOR BONDS OF SERIES F.
SECTION 2.1. The Company covenants and agrees that so long as any of
the bonds of Series F shall be outstanding it will pay to the Trustee, as and
for a sinking fund for the bonds of Series F, on the first clay of November in
the year 1955 and on the first day of November in each year thereafter, an
amount of cash equal to one per centum. (1%) of the greatest principal amount of
bonds of Series F outstanding under the Indenture at any one time prior to the
next preceding September 15; provided, however, that the amount of cash payable
to the Trustee on any such November 1 pursuant to the provisions of this Section
shall be reduced by an amount equal to the aggregate principal amount of bonds
of Series F then being delivered by the Company to the Trustee, but no bonds of
Series F shall be delivered to the Trustee which have not been sold in a bona
fide transaction and reacquired by the Company.
Cash paid to the Trustee pursuant to the provisions of this Section
shall be applied by it as follows:
(a) Upon the written notice by the Company to the Trustee given on
or before September 15 in any year, beginning with the year 1955,
specifying the amount of cash which the Company will pay to the Trustee
on the next succeeding November 1 pursuant to this Section and
requesting that it be used for the redemption
<PAGE> 38
37
of bonds, the Trustee shall, to the extent practicable, apply the cash
received by it on the next succeeding November 1, to-ether with any
other cash held by it on such September 15 under the provisions of this
Section, to the redemption on such November I of bonds of Series F, in
the manner and subject to the conditions provided in such bonds, in
Article VIII of the Indenture and in Section 2.4 of this Fourth
Supplemental Indenture; and for such purpose the Trustee may publish
notice of redemption in the name of the Company or in its own name as
Trustee.
(b) If the Company shall not have given the notice referred to in
the foregoing subdivision (a), the cash received by the Trustee on any
November 1 pursuant to the provisions of this Section shall, upon
request of the Company and to the extent practicable, be applied
promptly by the Trustee to the purchase of bonds of Series F in
accordance with the provisions of Section 8.06 of the Indenture.
(c) If the Trustee on January 20 of any year shall hold cash under
the provisions of this Section amounting to $15,000 or more (or any
amount less than $15,000, if the Company so elects), the Trustee shall
apply all cash, to the extent practicable. then held under the
provisions of this Section to the redemption on the next succeeding
March 1 of bonds of Series F, in the manner and subject to the
conditions provided in such bonds, in Article VII of the Indenture and
in Section 2.4 of this Fourth Supplemental Indenture; and for such
purpose the Trustee may publish notice of redemption in the name of the
Company or in its own name as Trustee.
SECTION 2.2. The Company further covenants to pay to the Trustee, on
demand, the compensation of the Trustee in administering the sinking fund as
provided in this Article II, together with the Trustee's expenses, including
cost of advertisement of redemption notices and any other advertisements and
other lawful charges, if any, and any accrued interest and premium paid or
payable with respect to any such bonds of Series F purchased or redeemed as
provided for in Section 2.1 it being intended that the aforesaid compensation,
expenses, charges, accrued interest and premium shall not be charged against
sinking fund moneys.
<PAGE> 39
38
SECTION 2.3. All bonds of Series F delivered to the Trustee for the
purpose of holding a credit pursuant to the provisions of Section 2.1, or
purchased or redeemed pursuant to the provisions of Section 2.1, shall be
forthwith cancelled by the Trustee, and such bonds shall not be reissued.
SECTION 2.4. Notwithstanding any other provision of the Indenture, if
less than all of the bonds of Series F outstanding are to be called for
redemption, whether for the holding fund for bonds of Series F or otherwise, the
Trustee shall select out of such bonds of Series F the particular coupon bonds
and/or registered bonds without coupons and/or portions ($1,000 or any multiple
thereof) of registered bonds without coupons so to be redeemed, in the following
manner:
(a) The Trustee shall first allocate the total principal amount of
such bonds of Series F to be redeemed between
(i) coupon bonds of Series F not registered as to principal
at the time outstanding, and
(ii) coupon bonds of Series F registered as to principal and
registered bonds of Series F without coupons at the time
outstanding,
in proportion (to the nearest multiples of $1,000) to the respective
aggregate principal amounts thereof at the time outstanding.
(b) The Trustee shall then select, by lot according to such method
as the Trustee in its discretion shall consider proper, in the
principal amount determined as provided in paragraph (a) above, the
particular coupon bonds of Series F not registered as to principal to
be redeemed.
(c) At the same time the Trustee shall select, in the principal
amount determined as provided in paragraph (a) above, the coupon bonds
of Series F registered as to principal and the registered bonds of
Series F without coupons (or portions thereof) to be redeemed by
allocating such principal amount so determined among the various
registered owners of bonds of Series F in proportion to the respective
aggregate principal amounts of bonds of Series F registered in their
respective names, provided that
(i) the Trustee may in its discretion allocate an additional
or lesser amount not exceeding $1,000 to any one or more
<PAGE> 40
39
of such registered owners to the end that the principal amount of
bonds of Series F registered in the name of each such registered
owner to be redeemed shall be $1,000 or a multiple thereof;
(ii) in making such allocation, if the aggregate principal
amount of bonds of Series F registered in the name of any
registered owner of bonds of Series F shall be $1,000, the Trustee
shall not be required to allocate any portion of such principal
amount to such registered owner;
(iii) the particular bonds and portions of particular bonds of
Series F registered in the name of any registered owner to be
redeemed shall be selected by the Trustee according to such method
(which need not be by lot) as it in its discretion shall consider
proper, avoiding, where proper and practicable to do so, the
selection of portions of particular bonds of Series F rather than
entire bonds of Series F for redemption; and
(iv) if any registered owner of more than one bond of Series F
shall state in writing to the Trustee that it holds such bonds as
nominee for more than one beneficial owner and shall have so
requested by written notice to the Trustee, the respective bonds
of Series F registered in the name of such owner shall be treated,
for purposes of this Section 2.4, as owned by separate registered
owners.
In any selection of bonds of Series F by lot under this Section 2.4
which involves registered bonds of Series F, each registered bond without
coupons shall be represented by a separate number for each $1,000 of its
principal amount.
The Trustee forthwith upon any selection of bonds of Series F for
redemption as aforesaid shall give written notice to the Company describing the
bonds of Series F (including any portion of registered bonds of Series F without
coupons) selected for redemption as aforesaid.
<PAGE> 41
40
ARTICLE III.
ADDITIONAL COVENANTS OF THE COMPANY.
SECTION 3.1. The Company covenants that, so long as any bonds of Series
F are outstanding, it will not at any time declare or pay any dividend on its
Common Stock or make any distribution to its Common Stockholders (other than
dividends or distributions payable solely in its Common Stock) or purchase or
otherwise acquire for value any of its Common Stock, except out of (1) earned
surplus of the Company accumulated after December 31, 1949, plus (2) $530,000 of
earned surplus accumulated prior to January 1, 1950 (such aggregate amount being
hereinafter called "unrestricted earned surplus"), nor unless after the payment
of such dividend or the making of such distribution, purchase or acquisition the
sum of (a) the provision for property retirements or depreciation made by the
company out of income or earned surplus, during the period from July 1, 1950, to
the end of the calendar year next preceding the date of payment of such dividend
or the making of such distribution, purchase or acquisition and (b) the
unrestricted earned surplus, if any, of the Company shall be not less than the
aggregate of the minimum provision for property retirements or depredation
determined as provided in Section 1.05 of the Indenture, for the period from
July 1, 1950, to the end of the calendar year next preceding the date of payment
of such dividend or the making of such distribution, purchase or acquisition.
For the purposes of this Section, the earned surplus of the Company accumulated
after December 31, 1949, shall be determined in accordance with sound accounting
practice, and, so long as and to the extent that there shall remain any earned
surplus of the Company accumulated prior to January 1, 1950, other than
unrestricted earned surplus, such amount shall be available for all surplus
charges other than such dividends or the making of such distribution, purchase
or acquisition.
SECTION 3.2. The Company covenants that so long as any bonds are
outstanding under the Original Indenture no Indenture or Indentures supplemental
to the Original Indenture will be entered into by the Company unless such
Supplemental Indenture shall contain provisions which are in compliance with the
Trust Indenture Act of 1939 as then in effect; provided, however, that this
provision shall not be
<PAGE> 42
41
effective and binding upon the Company if all of the bonds then outstanding and
then to be issued under the Original Indenture as supplemented and amended by
all other supplemental indentures and by such supplemental indenture then to be
entered into, shall either be exempt securities as defined in the Trust
Indenture Act of 1939 as then in effect, or are to be issued in a transaction
exempt from the provisions of said Act.
SECTION 3.3. The Company covenants that, so long as any bonds of Series
F are outstanding, it will not convey or transfer any property which is subject
to the lien of the Indenture to any affiliate of the Company except in
accordance with the provisions of Article XIII of the Indenture or except such
property as shall thereupon be released from the lien of the Indenture under the
provisions of Article IX thereof.
SECTION 3.4. The Company covenants that, so long as any bonds of Series
F are outstanding, it will not at any time purchase or cause to be purchased any
bond of any series outstanding under the Indenture at a price (including accrued
interest, but not including brokerage charges) which is in excess of the current
redemption price of such bond at the date of purchase if such bond is redeemable
before maturity or, if it is not so redeemable, one hundred five per centum.
(105%) of the principal amount of such bond, plus, in either case, accrued
interest.
ARTICLE IV.
AMENDMENT OF ORIGINAL INDENTURE.
(Pursuant to Sub-Section (e) of Section 17.01 of Original Indenture)
SECTION 4.1. Section 2.02 of the Original Indenture is hereby amended
to read as follows:
"SECTION 2.02. The bonds issued hereunder shall, from time to
time, be executed on behalf of the Company by its President, or one of
its Vice-Presidents, whose signature, except on bonds of Series A,
bonds of Series B, bonds of Series C, bonds of Series D and bonds of
Series E, may be facsimile, and its corporate seal shall be thereunto
affixed or a facsimile thereof shall be printed or engraved thereon and
attested by its Secretary or one of its Assistant Secretaries. Only
such bonds as shall bear
<PAGE> 43
42
thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee, shall be secured by this
Indenture, or be entitled to any right or benefit hereunder. No bond
and no coupon thereunto appertaining shall be or become valid or
obligatory for any purpose until such certificate shall have been duly,
executed on such bond. Such certificate by the Trustee upon any bond
executed by the Company shall be conclusive evidence and the only
competent evidence that the bond so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled
to the security and benefit of this Indenture. The Trustee shall not
authenticate or deliver any coupon bond until all matured coupons
thereunto appertaining shall have been detached and canceled, except as
otherwise provided in Section 2.03 hereof or permitted in Section 2.08
hereof. The coupons attached to coupon bonds shall bear the facsimile
signature of the present Treasurer or of any future Treasurer of the
Company, and for that purpose the Company may adopt and use the
facsimile signature of any person who shall have been such Treasurer,
notwithstanding the fact that at the time when such coupon bonds shall
be authenticated and delivered or disposed of he shall have ceased to
be the Treasurer of the Company.
"In case any officer of the Company who shall have signed any of
the bonds or attested the seal thereon or whose facsimile signature
appears on any bonds or coupons shall cease to be such officer before
the bonds so signed or sealed shall have been authenticated and
delivered by the Trustee or disposed of by the Company, such bonds,
nevertheless, may be authenticated and delivered or disposed of as
though the person who signed such bonds or attested the seal thereon or
whose facsimile signature appears on any bonds or coupons had not
ceased to be such officer; and any bond may be signed on behalf of the
Company and the seal of the Company may be attested by such persons, or
the Company may adopt and use the facsimile signature or signatures of
such persons, as, at the actual date of the execution of the bond,
shall be the proper officer's of the Company, although at the date of
such bond any such person was not such officer."
<PAGE> 44
43
ARTICLE V.
MISCELLANEOUS.
SECTION 5.1. The Company is lawfully seized and possessed of all the
real estate, franchises and other property described or referred to in the
Indenture as presently mortgaged and pledged thereunder, subject to the
exceptions stated therein and except property which has been released from the
lien of the Indenture in accordance with its terms, and upon the initial issue
of bonds of Series F thereunder such real estate, franchises and other property
will be free and clear of any lien prior to or on a parity with the lien of the
Indenture except as set forth in the granting clauses of the Indenture and
except permitted liens as therein defined, and the Company has good right and
lawful authority to mortgage and pledge the same as provided in and by the
Indenture.
SECTION 5.2. As supplemented and amended by this Fourth Supplemental
Indenture, the Original Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, and the Third Supplemental Indenture are in all respects
ratified and confirmed and said Original Indenture, First Supplemental
Indenture, Second Supplemental Indenture, Third Supplemental Indenture and this
Fourth Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 5.3. The Trustee assumes no duties, responsibilities or
liabilities by reason of this Fourth Supplemental Indenture, other than as set
forth in the Original Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture and this Fourth
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions of its acceptance of the trust under the Original
Indenture, the First Supplemental Indenture, the Second Supplemental Indenture
and the Third Supplemental Indenture as fully as if said terms and conditions
were herein set forth at length.
SECTION 5.4. This Fourth Supplemental Indenture shall be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 5.5. This Fourth Supplemental Indenture has been dated as of
November 1, 1954, solely for convenience. The date of actual
<PAGE> 45
44
execution hereof by each of the parties hereto is the date shown by the
acknowledgment of execution hereof by its officers.
In Witness Whereof, CENTRAL LOUISIANA ELECTRIC COMPANY, INC. has caused
this instrument to be signed in its corporate name by its President or one of
its Vice-Presidents and sealed with the corporate seal attested by its Secretary
or one of its Assistant Secretaries, and The National Bank of Commerce in New
Orleans to evidence its acceptance of the trust hereby created as caused this
instrument to be signed in its corporate name by one of its Vice-Presidents and
sealed by its corporate seal attested by one of its Assistant Cashiers, all as
of the day and year first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
[SEAL]
By T. M. HAUER
Attest: Vice-President.
T. P. STREET
Secretary.
Signed, sealed, acknowledged and
delivered by CENTRAL LOUISIANA
ELECTRIC COMPANY, INC., in the
presence of:
R. J. Emmer
H. S. FORD
THE NATIONAL BANK OF COMMERCE IN NEW
ORLEANS
[SEAL]
By F. C. DOYLE
Attest: Vice-President.
R. C. MORSE
Assistant Cashier.
Signed, sealed, acknowledged and
delivered by THE NATIONAL BANK OF
COMMERCE IN NEW ORLEANS in the
presence of:
R. J. EMMER
H. S.. FORD
<PAGE> 46
45
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 9th day of December, 1954, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared T. M. HAUER, a Vice-President and
T. P. STREET, Secretary of Central Louisiana Electric Company, Inc., the grantor
in the foregoing instrument, to me personally known and known to me to be such
officers, respectively, of such Company, and personally known to me to be the
identical persons whose names are subscribed and affixed to the foregoing
instrument as such officers, respectively, and who subscribed the name of the
Company thereto, and in my presence and in the presence of the undersigned
witnesses, of lawful age and domicile, severally acknowledged that the same is
their respective, free and voluntary act and deed as such officers and the free
and voluntary act and deed of said Company for the uses and purposes therein
expressed; and the said persons being each by me duly and severally sworn as
individuals did depose and say that they are such officers, respectively, of
said Company; that they know the seal of said Company; that the seal affixed to
the foregoing instrument was and is such corporate seal; that said seal was so
affixed and said instrument was so signed on behalf of said Company by the order
and authority of the Board of Directors of said Company; and that they signed
their names thereto as such officers, respectively, of said Company by like
authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of R. J.
EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness: T. M. HAUER
Vice-President.
R. J. EMMER
T. P. STREET
H. S. FORD Secretary.
THOMAS F. JORDAN
[SEAL] Notary Public.
My Commission expires at death or on removal from Office.
<PAGE> 47
46
STATE OF LOUISIANA
PARISH OF ORLEANS
BE IT KNOWN, That on this 9th day of December, 1954, before me the
undersigned, a Notary Public in and for said Parish and State, duly qualified
and commissioned as such, personally appeared FRANCIS C. DOYLE, a Vice-President
and RICHARD C. MORSE, an Assistant Cashier of The National Bank of Commerce in
New Orleans, a national banking association, duly organized and existing under
the laws of the United States of America, Trustee under the foregoing
instrument, to me personally known and known to me to be such officers,
respectively, of said Bank, and personally known to me to be the identical
persons whose names are subscribed and affixed to the foregoing instrument as
such officers respectively, and who subscribed the name of the said Bank
thereto, and in my presence and in the presence of the undersigned witnesses, of
lawful age and domicile. severally acknowledge that the same is their
respective, free and voluntary act and deed as such officers and the free and
voluntary act and deed of said Bank for the uses and purposes therein expressed;
and the said persons being each by me duly and severally sworn as individuals
did depose and say that they are such officers, respectively, of said Bank; that
they know the seal of said Bank, that the seal affixed to the foregoing
instrument was and is such corporate seal; that said seal was so affixed and
said instrument was so signed on behalf of said Bank by the order and authority
of the Board of Directors of said Bank; and that they signed their names thereto
as such officers, respectively, of said Bank by like authority.
In Testimony Whereof, the said Appearers have hereunto signed their
names on the day and date first hereinabove written, in the presence of R. J.
EMMER and H. S. FORD, witnesses of lawful age and domicile, and of me, said
Notary Public.
Witness: F. C. DOYLE
Vice-President.
R. J. EMMER
R. C. MORSE
H. S. FORD Assistant Cashier.
THOMAS F. JORDAN
[SEAL] Notary Public.
My Commission expires at death or on removal from Office.
<PAGE> 1
EXHIBIT 10(i)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
The Industrial Development Board of The Parish of Rapides, Inc.
Series 1991 Bonds
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS............................................................... 2
Section 1.01. Certain Defined Terms..................................................... 2
ARTICLE II LETTER OF CREDIT; FEES.................................................... 11
Section 2.01. Agreement to Issue Letter of Credit....................................... 11
Section 2.02. Adjustment to LC Commitments.............................................. 11
Section 2.03. Request to Extend the Letter of Credit.................................... 11
Section 2.04. Letter of Credit Fee...................................................... 12
Section 2.05. Fronting Fee.............................................................. 12
Section 2.06. Transfer Fees............................................................. 12
Section 2.07. Drawing Fees.............................................................. 12
Section 2.08. Additional Fees........................................................... 12
Section 2.09. Taxes..................................................................... 12
Section 2.10. Increased Costs........................................................... 13
ARTICLE III REPAYMENT OF DRAWINGS..................................................... 14
Section 3.01. Repayment of Drawings; Advances........................................... 14
Section 3.02. Repayment of Advances..................................................... 14
Section 3.03. Overdue Interest.......................................................... 15
Section 3.04. Payments; Computations.................................................... 15
Section 3.05. Payments to Banks......................................................... 15
Section 3.06. Sharing Provision......................................................... 16
Section 3.07. Obligations Absolute...................................................... 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS................................................. 17
Section 4.01. Prepayments............................................................... 17
Section 4.02. Release of Escrow Bonds................................................... 17
ARTICLE V CONDITIONS PRECEDENT...................................................... 17
Section 5.01. Delivery of Bonds and Operative Documents................................. 17
Section 5.02. Intentionally Omitted..................................................... 17
Section 5.03. Receipt of Documents...................................................... 18
Section 5.04. Representations and Warranties; Defaults.................................. 19
Section 5.05. Certain Other Matters..................................................... 19
Section 5.06. Proceedings............................................................... 20
</TABLE>
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ARTICLE VI REPRESENTATIONS AND WARRANTIES............................................ 20
Section 6.01. Due Organization, Etc..................................................... 21
Section 6.02. No Conflicts.............................................................. 21
Section 6.03. Due Authorization......................................................... 21
Section 6.04. Enforceability............................................................ 21
Section 6.05. Litigation................................................................ 22
Section 6.06. Compliance with ERISA..................................................... 22
Section 6.07. No Defaults............................................................... 23
Section 6.08. Financial Statements...................................................... 23
Section 6.09. Taxes..................................................................... 23
Section 6.10. Disclosure................................................................ 23
Section 6.11. Title to Property......................................................... 24
Section 6.12. Environmental and Other Matters........................................... 24
Section 6.13. Operative Documents....................................................... 24
Section 6.14. Margin Stock.............................................................. 24
Section 6.15. Investment Company........................................................ 24
ARTICLE VII AFFIRMATIVE COVENANTS..................................................... 24
Section 7.01. Preservation of Corporate Existence....................................... 24
Section 7.02. Compliance with Law; Environmental and Other Matters...................... 25
Section 7.03. Performance of Agreements................................................. 25
Section 7.04. Maintenance of Insurance.................................................. 25
Section 7.05. Furnishing of Information................................................. 25
Section 7.06. ERISA..................................................................... 26
Section 7.07. Financial Statements...................................................... 26
Section 7.08. Inspection................................................................ 25
Section 7.09. Payment of Taxes, Etc..................................................... 25
Section 7.10. Maintenance of Property................................................... 28
Section 7.11. Certain Notices........................................................... 28
ARTICLE VIII NEGATIVE COVENANTS........................................................ 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc................................ 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods.................................................. 29
Section 8.03. Amendment of Operative Document........................................... 29
Section 8.04. Liens..................................................................... 29
Section 8.05. Interest Coverage Ratio................................................... 32
Section 8.06. Tangible Net Worth Ratio.................................................. 32
</TABLE>
<PAGE> 4
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ARTICLE IX EVENTS OF DEFAULT......................................................... 32
Section 9.01. Events of Default......................................................... 32
Section 9.02. No Remedy Exclusive....................................................... 34
ARTICLE X THE AGENT................................................................. 35
Section 10.01. The Agent................................................................. 35
Section 10.02. Duties.................................................................... 35
Section 10.03. Investigation by Banks.................................................... 36
Section 10.04. Instructions.............................................................. 36
Section 10.05. Reliance by the Agent..................................................... 36
Section 10.06. Indemnification........................................................... 36
Section 10.07. Agent as a Bank........................................................... 37
Section 10.08. Resignation by the Agent.................................................. 37
ARTICLE XI MISCELLANEOUS............................................................. 38
Section 11.01. Amendments, Etc........................................................... 38
Section 11.02. Addresses for Notices..................................................... 38
Section 11.03. Set-off................................................................... 39
Section 11.04. Indemnification........................................................... 39
Section 11.05. Benefit of Agreement...................................................... 39
Section 11.06. Liability of Parties...................................................... 41
Section 11.07. Expenses, Etc............................................................. 42
Section 11.08. Counterparts.............................................................. 42
Section 11.09. Consent to Jurisdiction................................................... 42
Section 11.10. Governing Law............................................................. 43
Section 11.11. Headings, Etc............................................................. 43
Section 11.12. Survival of Representations and Warranties................................ 43
Section 11.13. Survival of Indemnities................................................... 43
Section 11.14. Satisfaction Requirement.................................................. 43
Section 11.15. Accounting Terms.......................................................... 44
Section 11.16. Calculations.............................................................. 44
Schedule I List of Banks/LC Commitments/LC Percentages
Schedule II Existing Liens
Exhibit A Form of Irrevocable Letter of Credit
Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P.
Exhibit B-2 Form of Opinion of William O. Bonin
Exhibit C Form of Officer's Certificate
</TABLE>
<PAGE> 5
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing
under the laws of the State of Louisiana (the "Company"), the financial
institutions listed on Schedule I attached hereto (each a "Bank", and
collectively the "Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as agent (in such capacity, together with any successor in such
capacity, the "Agent") and as issuer of the below-referenced Letter of Credit
(in such capacity, "WestLB").
W I T N E S S E T H :
WHEREAS, The Industrial Development Board of the Parish of
Rapides, Inc. (the "Issuer"), pursuant to the Act (as defined in the Indenture
hereinafter referred to), has issued and sold its Adjustable Tender Pollution
Control Revenue Refunding Bonds (Central Louisiana Electric Company, Inc.
Project) Series 1991 in the aggregate principal amount of $11,150,000 (the
"Bonds") pursuant to a Trust Indenture dated as of May 1, 1991, as amended and
supplemented by a First Supplemental Trust Indenture dated as of May 1, 1993 (as
further amended and supplemented from time to time in accordance with the terms
thereof, the "Indenture") from the Issuer to First National Bank of Commerce, as
trustee (together with its successors in trust and their assigns, the
"Trustee"), and has used the proceeds thereof, together with other available
funds, to refund and redeem in full the Prior Bonds (as hereinafter defined)
pursuant to that certain Refunding Agreement dated as of May 1, 1991 between the
Issuer and the Company (as amended from time to time in accordance with the
terms thereof, the "Refunding Agreement"), which Prior Bonds were issued by the
Issuer to finance the cost of acquiring, constructing, improving and equipping
the Company's undivided interest in certain air and water pollution control
facilities, as more specifically described in Exhibit B to the Refunding
Agreement (the "Project"); and
WHEREAS, the Company has requested WestLB to issue its
irrevocable letter of credit in the form of Exhibit A attached hereto (the
"Letter of Credit", which term shall include any substitute therefor or
replacement thereof issued in accordance with the terms of the Letter of Credit)
to replace the irrevocable letter of credit issued by Swiss Bank Corporation in
connection with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set
forth, WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Company, the Agent, WestLB and the Banks are willing to enter into
this Agreement as provided herein;
1
<PAGE> 6
NOW, THEREFORE, in consideration of the premises contained
herein and in order to induce WestLB to issue the Letter of Credit, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms
defined elsewhere in this Agreement, the following terms shall have the
respective meanings set forth below (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of the
portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to
such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such first
Person. The term "control" and "controlled" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of
voting securities or partnership or other ownership interests, by
contract or otherwise.
"Agent" shall have the meaning given to such term in the first paragraph
of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such
terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any
similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which the
Agent announces from time to time as its prime lending rate, the Base
Rate to change when and as the prime lending rate changes or (ii) 1/2 of
1% above the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as
2
<PAGE> 7
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York or
if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions received
by the Agent from three Federal funds brokers of recognized standing
selected by the Agent. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any
customer. The Agent, WestLB and any Bank may make commercial loans or
other loans at rates of interest at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of principal
of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase
Agreements, each dated May 29, 1991, among the Company, Smith Barney,
Harris Upham & Co. Incorporated and the Issuer and The Industrial
Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital
of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday,
Sunday or other day on which commercial banks located in the City of New
York, New York are required or authorized by law to close or on which
The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations under
a lease that are required to be accounted for and classified as
capitalized leases on the balance sheet of the Company or any of its
Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of interest,
or the portion of Purchase Price corresponding to interest, on the
Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of July
1, 1950, as supplemented and amended from time to time in accordance
with its terms, by the Company to First National Bank of Commerce
(formerly The National Bank of Commerce in New Orleans), as trustee
thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect
on the date of this Agreement, and to any subsequent provisions of the
Code amendatory thereof, supplemental thereto or substituted therefor.
"Company" shall have the meaning given to such term in the first
paragraph of this Agreement.
3
<PAGE> 8
"Consolidated Interest Expense" shall mean, for any period, all amounts
accounted for (without duplication) during such period as interest on
Indebtedness, including, without limitation, (i) interest payable in
respect of all Indebtedness under this Agreement, (ii) the portion of
any Capitalized Lease Obligation attributable to interest, (iii)
commissions and other fees and charges payable in respect of all letters
of credit and (iv) the net amount due, if any, in connection with any
interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the
Company and its Subsidiaries less all operating and nonoperating
expenses of the Company and its Subsidiaries including, without
limitation, all charges of a proper character (including current and
deferred taxes on income and current additions to reserves), but not
including in net revenues any gains (net of expenses and taxes
applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e., assets other
than current assets), any gains resulting from the write-up of assets,
any equity of the Company or any Subsidiary in the unremitted earnings
of any Person acquired by the Company or any Subsidiary through
purchase, merger or consolidation or otherwise for any year prior to the
year of acquisition or any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of assets
appearing on a consolidated balance sheet of the Company and its
Subsidiaries less, without duplication, the following: (i) all reserves
for depreciation and other asset valuation reserves but excluding any
reserves for deferred U.S. federal income taxes arising from accelerated
amortization or otherwise; (ii) all intangible assets such as goodwill,
trademarks, trade names, patents and unamortized debt discount and
expense carried as an asset on such balance sheet; and (iii) all
appropriate adjustments on account of minority interests of other
Persons holding Voting Stock in any Subsidiary of the Company; all
determined in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total
shareholders' equity in the Company and its Subsidiaries, determined in
accordance with generally accepted accounting principles, less the
aggregate net amount of the following items to the extent, if any, such
items were included in consolidated assets or deducted from consolidated
liabilities in connection with the computation of such shareholders'
equity: (i) all licenses, patents, copyrights, trade names, trademarks,
goodwill, experimental or organizational expense, unamortized debt
discount and expense and all other assets which under generally accepted
accounting principles are deemed to be intangibles; (ii) all investments
other than Permitted Investments; (iii) any write-up of assets (other
than current assets) after December 31, 1996; (iv) all assets located
outside the United States of America and Canada and all Indebtedness
from any Person to the extent the primary portion of such Person's
assets or
4
<PAGE> 9
business operations are located outside the United States of America and
Canada; and (v) the book value of net tangible assets of each Subsidiary
acquired in so-called "pooling of interests" accounting treatment
transactions, to the extent such book value at the time of such
acquisition exceeds the fair value of the consideration paid for such
acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness,
lease, dividend or other obligation ("Primary Obligations") of any other
Person (the "Primary Obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person
whether or not contingent, (i) to purchase any such Primary Obligation
or any property constituting direct or indirect security therefor; (ii)
to advance or supply funds (a) for the purchase or payment of any such
Primary Obligation or (b) to maintain working capital or equity capital
of the Primary Obligor or otherwise to maintain the net worth or
solvency of the Primary Obligor; (iii) to purchase property, securities
or services primarily for the purpose of assuring the holder of any such
Primary Obligation of the ability of the Primary Obligor to make payment
of any such Primary Obligation; or (iv) otherwise to assure or hold
harmless the holder of such Primary Obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person
in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines
in accordance with the Basle Committee on Banking Regulations and
Supervisory Practices set forth in a paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated July
1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit
shall be issued by WestLB to the Trustee pursuant to the terms of this
Agreement.
"Default" shall mean any event which with notice or lapse or time, or
both, or the happening of any further condition, event or act, would
become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for such
period before Consolidated Interest Expense, income taxes, depreciation
and amortization for such period.
5
<PAGE> 10
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as
in effect on the date of this Agreement, and to any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Company or any Subsidiary of the Company
would be deemed to be a member of the same "controlled group" within the
meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the
Indenture.
"Event of Default" shall have the meaning given to such term in Section
9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of
this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in Section
2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section
11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of
such Person for borrowed money or for the deferred purchase price of
property or services, excluding trade accounts payable in the ordinary
course of business; (ii) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts
drawn thereunder; (iii) all liabilities secured by any Lien on any
property owned by such Person, whether or not such liabilities have been
assumed by such Person; (iv) the aggregate amount required, under
generally accepted accounting principles, to be capitalized under leases
under which such Person is the lessee; and (v) all Contingent
Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first
recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first recital
of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section
2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section
2.02 hereof.
6
<PAGE> 11
"Letter of Credit" shall have the meaning given to such term in the
second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financial statement under the Uniform Commercial Code of any
jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer be performing the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any
other nationally recognized securities rating agency approved by the
Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB
or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the
President, any Vice President, Secretary-Treasurer or the chief
financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29,
1991, prepared in connection with the issuance and remarketing of the
Bonds, together with all amendments, modifications and supplements
thereto.
"Operative Documents" shall mean and include this Agreement, the
Indenture, the Refunding Agreement, the Remarketing Agreement, the
Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean the Adjustable Tender Pollution Control Revenue
Refunding Bonds (Central Louisiana Electric Company, Inc. Project)
Series l991A and Series 1991B issued by the Parish of DeSoto.
"Other Letters of Credit" shall mean the letters of credit issued by
Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the
Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement
Agreements dated as of October 15, 1997 among the Company, the financial
institutions party thereto and Westdeutsche Landesbank Girozentrale, New
York Branch, as agent and as issuer of the Other Letters of Credit,
relating to the Other Bonds.
7
<PAGE> 12
"Participant" shall mean any entity that purchases a participation
interest from any Bank in the Letter of Credit and this Agreement in
accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section 2.04
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the United
States of America, or any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or any agency
thereof, in either case maturing not more than one year from the date of
acquisition thereof; (ii) certificates of deposit issued by any bank or
trust company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided profits
of at least $100,000,000 maturing not more than one year from the date
of acquisition thereof; and (iii) other debt obligations which have been
given an investment grade rating by S&P, Moody's or any other nationally
recognized rating agency, provided such obligations mature not more than
one year from the date of acquisition thereof.
"Person" shall mean and include any of an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization or
a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan,
subject to Title IV of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), or at any time
during the five calendar years preceding the date of this Agreement was
maintained or contributed to by (or to which there was an obligation to
contribute of), the Company or any of its Subsidiaries or an ERISA
Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official
Statement, dated May 16, 1991, prepared in connection with the initial
issuance of the Bonds, together with all amendments, modifications and
supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue
Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983
previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section
11.09 hereof.
"Project" shall have the meaning given to such term in the first recital
of this Agreement.
8
<PAGE> 13
"Purchase Price" shall have the meaning given to such term in the Letter
of Credit.
"Refunding Agreement" shall have the meaning given to such term in the
first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in the
Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated
October 15, 1997 to the Official Statement dated May 29, 1991, which
has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement
has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit
shall be outstanding, (a) WestLB (to the extent the relevant action will
affect the Letter of Credit or WestLB's obligations with respect thereto
in any way) and (b) Banks whose then outstanding LC Commitments and the
then outstanding Advances (if any) equal or exceed 66-2/3% of the sum of
the then Total LC Commitment and then total outstanding Advances (if
any) and (ii) at such times as the Letter of Credit shall no longer be
outstanding, Banks whose then outstanding Advances equal or exceed
66-2/3% of the then total outstanding Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, and its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer be
performing the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating
agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the Letter
of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has
more than a 50% equity interest at the time.
"Taxes" shall have the meaning given to such term in Section 2.09
hereof.
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"Tender Agent" shall have the meaning given to such term in the
Indenture.
"Tender Agreement" shall have the meaning given to such term in the
Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit
terminates or expires in accordance with its terms (as such expiration
date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal
amount of all Indebtedness of the Company or any of its Subsidiaries
which, at the time of the incurrence thereof, had a stated maturity in
excess of one year, exclusive of any intercompany Indebtedness owed by
the Company or any of its Subsidiaries but, in any event, including all
Indebtedness of the Company incurred hereunder (regardless of the stated
maturity thereof) (b) the par or stated value of all outstanding capital
stock (including premiums on capital stock) of all classes of the
Company, exclusive of all such stock held in the Company's treasury or
owned beneficially or of record by any Affiliate of the Company, and (c)
the retained earnings of the Company and its Subsidiaries, less (ii)
unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first recital
of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any,
by which the present value of the accrued benefits under the Plan as of
the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the
assets allocated thereto, determined in accordance with Section 412 of
the Code.
"Voting Stock" shall mean stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of the relevant
corporation, provided, however, that, for purposes of this Agreement,
stock that carries only the right to vote conditionally on the happening
of an event shall not be considered voting stock whether or not such
event shall have happened.
"WestLB" shall have the meaning given to such term in the first
paragraph of this Agreement.
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ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees
with the Company, on the terms and subject to the conditions herein set forth
(including, without limitation, the conditions specified in Article V hereof),
to issue the Letter of Credit to the Trustee on October 15, 1997. The initial
face amount of the Letter of Credit shall be $11,336,953.42 (such amount, as
reduced or reinstated from time to time in accordance with the terms of the
Letter of Credit, the "Total LC Commitment"); provided, that no more than
$186,953.42 may be drawn thereunder with respect to the payment of interest on
the Bonds; and, provided further, that in no event shall any amount be drawn
under the Letter of Credit for the payment of any premium on the Bonds. The
Letter of Credit shall expire on October 15, 2000, unless otherwise terminated
or extended. WestLB agrees that it will pay all drawings under the Letter of
Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction
or reinstatement of the Stated Amount of the Letter of Credit in accordance with
the terms thereof, the LC Commitment (as defined below) of each Bank shall be
reduced or increased, respectively, based on the LC Percentage (as defined
below) of such Bank, to reflect the new Stated Amount of the Letter of Credit
(it being understood that the aggregate LC Commitments of the Banks with respect
to the Letter of Credit shall at all times equal the Stated Amount of the Letter
of Credit, and that in no event shall the LC Commitment of any Bank be increased
to an amount in excess of the original LC Commitment of such Bank, except in
accordance with the provisions of Section 11.01 hereof). As used herein, the
terms (i) "LC Percentage" shall mean, for each Bank, that percentage set forth
opposite such Bank's name on Schedule I attached hereto (as Schedule I may be
amended from time to time to reflect adjustments thereto pursuant to Section
11.05 hereof) and (ii) "LC Commitment" shall mean, for each Bank, at any time,
an amount equal to such Bank's LC Percentage at such time multiplied by the
Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any
date which is at least ninety (90) days prior to the date which is not more than
two years preceding the Termination Date of the Letter of Credit, if no Default
or Event of Default shall have occurred and be continuing, the Company may
request in writing to WestLB and the Banks, with a copy to the Agent (such
request being irrevocable), that WestLB extend the Termination Date of the
Letter of Credit for one (1) year (such request being referred to herein as the
"Extension Request"). If the Company shall have made the Extension Request, the
Agent shall, on or prior to the date which is forty-five (45) days after the
date of receipt by the Agent, WestLB and the Banks of such Extension Request,
notify the Company in writing whether or not WestLB and the Banks consent to
such Extension Request and, if WestLB and the Banks do so consent, the terms and
conditions of such consent, it being understood and agreed that (i) no such
extension shall be granted unless WestLB and all of the Banks shall have
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consented in writing to such extension, (ii) if the Agent shall fail to give
such notice within such forty-five (45) day period, WestLB and the Banks shall
be deemed not to have consented to such extension and (iii) neither WestLB nor
any Bank shall have any obligation whatsoever to extend the Letter of Credit
pursuant to this Section 2.03 (or any liability whatsoever in the event such
Extension Request is denied for whatever reason), any such extension being in
the sole and absolute discretion of WestLB and each of the Banks. If WestLB and
the Banks shall agree to extend for one year the Termination Date of the Letter
of Credit, and provided all of the conditions to such extension specified in the
Agent's reply to the Extension Request shall have been met, WestLB shall issue
an amendment to such Letter of Credit (or a new Letter of Credit, as WestLB may
elect) extending the Termination Date of the Letter of Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees to
pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the first Business Day of
each March, June, September and December occurring prior to the Termination Date
(each such date, a "Payment Date"), commencing December 31, 1997, and on the
Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to
the Agent, for distribution to WestLB, a letter of credit fronting fee as agreed
with WestLB and specified in a letter agreement between the Company and the
Agent. Such fee shall be payable quarterly on each Payment Date commencing with
December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay to
WestLB, for its own account, upon each transfer of the Letter of Credit in
accordance with its terms, $1,000 or such other amount as shall at the time of
such transfer be the charge which WestLB is making generally for transfers of
similar letters of credit. Amounts payable under this Section 2.06 shall be
payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to
WestLB, for its own account, upon each drawing by the Trustee under the Letter
of Credit, the sum of $200 or such other amount as shall at the time of such
drawing be the charge which WestLB is making generally for drawings on similar
letters of credit. Amounts payable under this Section 2.07 shall be payable
quarterly in arrears on each Payment Date, commencing on December 31, 1997, and
on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay
to the Agent for its own account upfront and administrative fees specified in a
letter agreement between the Company and the Agent.
Section 2.09. Taxes. All payments made by the Company hereunder
shall be made without set off, counterclaim or other defense.
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All such payments shall be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding any tax imposed on or measured by the net income of
WestLB, any Bank or any Participant, as applicable, pursuant to the laws of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office or applicable lending office of such
Person is located) and all interest, penalties or similar liabilities with
respect thereto (collectively, "Taxes"). If any Taxes are so levied or imposed,
the Company agrees to pay the full amount of such Taxes and such additional
amounts as may be necessary so that every payment of all amounts due hereunder,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein. The Company will furnish to the Agent,
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such payment by the
Company. The Company shall indemnify and hold harmless WestLB, each Bank and
each Participant, as applicable, and reimburse each such Person upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Person.
Section 2.10. Increased Costs. If any change in or enactment of
any law or governmental rule, regulation or order (whether or not having the
force of law) or in the interpretation thereof by any court or administrative or
governmental authority or central bank or comparable agency charged with the
administration thereof (including implementation of the Cooke Commission
Guidelines), or compliance by WestLB, any Bank or any Participant with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, or any change in generally
accepted accounting principles at any time in effect in the United States or in
the Federal Republic of Germany, shall either (i) impose, modify or deem
applicable any reserve, capital adequacy, special deposit or similar requirement
against letters of credit issued by, or assets held by, or deposits in or for
the account of, WestLB, any Bank or any Participant in connection with, or
against participation in, the Letter of Credit or (ii) impose on WestLB, any
Bank or any Participant any other condition relating, directly or indirectly, to
this Agreement, the Letter of Credit or participation in the Letter of Credit,
and the result of any event referred to in the preceding clause (i) or (ii)
shall be to increase the cost to such Person of issuing, maintaining or
participating in the Letter of Credit (which increase in cost shall be
determined by such Person using reasonable allocation methods), then such Person
shall so notify the Agent and, upon demand by the Agent on behalf of such
Person, the Company shall immediately pay to the Agent, for distribution to such
Person, from time to time as specified by the Agent, such additional amounts as
shall be sufficient to compensate such Person for such increased costs from the
date of such change, enactment or compliance, together with interest on each
such amount from the date of demand therefor until payment in full thereof at
the Base Rate plus 2% per annum. A certificate setting forth in reasonable
detail such increased cost incurred by such Person, submitted by such Person to
the Agent and from the Agent to the Company, shall be conclusive, absent
manifest error, as the amount thereof. Any Person seeking payment from the
Company pursuant to this Section 2.10 shall so inform the Company promptly upon
learning
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of the occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company
hereby agrees to pay to WestLB (i) immediately after any payment is made under
the Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay
principal of or interest (or the portion of Purchase Price corresponding to
interest) on the Bonds, an amount equal to such amount so paid under the Letter
of Credit and (ii) on the earlier to occur of the Termination Date and the day
next succeeding the first anniversary of the date that any payment is made under
the Letter of Credit pursuant to any "A Drawing" to pay the portion of Purchase
Price corresponding to principal on the Bonds (such earlier date, the "Term
Repayment Date"), an amount equal to such amount paid under the Letter of Credit
together with interest thereon (a) from and including the date of such drawing
to but excluding the earlier to occur of the Termination Date and the fifteenth
(15th) day following the date of such drawing (such earlier date, the "Interest
Increase Date"), at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at a
rate per annum equal to the Base Rate plus 2%. In the event that the Company
shall fail to reimburse WestLB when due following any drawing specified in
clause (i) above, or WestLB shall make any payment under the Letter of Credit
specified in clause (ii) above and the Company shall not reimburse WestLB for
such payment on the date such payment was made, then, (1) WestLB shall promptly
advise the Agent thereof, (2) the Agent shall promptly advise each of the Banks
thereof and of each such Bank's LC Percentage of such unreimbursed drawing
(expressed both as a percentage and in U.S. dollars), and (3) each Bank (other
than WestLB) shall make available to WestLB in the lawful currency of the United
States by wire transfer of immediately available funds an amount equal to its LC
Percentage of such unreimbursed drawing by transferring the same, at or before
12:00 noon (New York time) on the date designated in such advice, which date
shall be no less than one Business Day after the date of such advice, to WestLB
at its office specified in Section 3.04 hereof. If any payment required to be
made by a Bank to WestLB is not made as provided above, WestLB shall be entitled
to recover such amount from such Bank on demand, together with interest thereon
at a rate per annum equal to (A) the cost to WestLB of acquiring overnight
Federal funds for the initial two (2) days such amount remains unpaid and (B)
the Base Rate per annum thereafter. WestLB (upon the honoring of any drawing),
and each other Bank (upon the payment to WestLB of its LC Percentage of such
drawing as provided above), shall each be deemed to have made a loan (each an
"Advance", and collectively, the "Advances") to the Company. Each such Advance
shall be applied (to the extent of such Advance) in satisfaction of the
Company's reimbursement obligation set forth in the first sentence of this
Section 3.01, and each Advance shall be repayable pursuant to, and shall
otherwise be subject to, the terms and conditions set forth herein.
Section 3.02. Repayment of Advances. The Company hereby agrees
to pay to the Agent (i) immediately after any Advance is deemed
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made pursuant to Section 3.01 above in respect of drawings under the Letter of
Credit specified in Section 3.01(i) above, an amount equal to such Advance so
made and (ii) on the Term Repayment Date, an amount equal to the Advances deemed
made pursuant to Section 3.01 above in respect of drawings under the Letter of
Credit specified in Section 3.01(ii) above together with interest thereon (a)
from and including the date of such Advance to but excluding the Interest
Increase Date, at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at a
rate per annum equal to the Base Rate plus 2%. All payments of interest and
principal on Advances shall be made to the Agent for distribution to the Banks
pro rata on the basis of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to pay
to WestLB or the Agent, as applicable, for the account of WestLB, the Agent or
the Banks, as applicable, interest on any and all amounts required to be paid to
WestLB, the Agent or the Banks under this Agreement (including, without
limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i)
hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii)
hereof) from and after the due date thereof until payment in full, payable on
demand, at a rate per annum equal to the Base Rate plus 2%; provided that
notwithstanding the foregoing, with respect to the amounts payable pursuant to
Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period immediately
succeeding the due date in respect of such amounts, so long as no Default or
Event of Default shall have occurred and be continuing during such period, the
interest rate payable by the Company pursuant to this Section 3.03 shall be the
Base Rate (it being understood that if any Default or Event of Default shall
occur and be continuing at any time during such fifteen (15) day period, the
interest rate payable by the Company during such fifteen (15) day period shall
be the rate per annum equal to the Base Rate plus 2% per annum). In addition,
the Company hereby agrees to pay to WestLB or the Agent, as applicable, for the
account of WestLB or the Banks, as applicable, interest on any and all amounts
required to be paid to WestLB or the Banks under Sections 3.01(ii) and 3.02(ii)
hereof from and after the due date thereof until payment in full, payable on
demand, at a rate per annum equal to 2% in excess of the interest rate payable
with respect to such amounts immediately prior to such due date.
Section 3.04. Payments; Computations. All payments by the
Company to WestLB or the Agent required to be made under this Agreement shall be
made in lawful currency of the United States by wire transfer of immediately
available funds to the offices of The Chase Manhattan Bank, located at One Chase
Manhattan Plaza, New York, New York, for the account of Westdeutsche Landesbank
Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the case may be,
shall otherwise notify the Company in writing. All computations of amounts
payable under this Agreement shall be computed, in the case of fees and
commissions, on the basis of a year of 360 days and, in the case of interest, on
the basis of a year of 365 (or 366, as the case may be) days, in each case for
the actual number of days occurring in the period for which such fees,
commissions or interest is payable. If any payment required to be made under
this Agreement other than those payments required under Sections 2.04, 2.05 and
2.07 becomes due and payable on a day other than a Business Day, the same shall
be payable on the next succeeding Business Day, and interest shall be
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payable at the rate otherwise applicable thereto on any such payment to the
Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly
after its receipt of each payment from or on behalf of the Company in respect of
any Obligations of the Company hereunder, it shall distribute such payment to
the Banks pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that
if it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right or set off or banker's
lien, by counterclaim or cross action, by the enforcement of any right hereunder
or under any other Operative Document, or otherwise), which is applicable to the
payment of the principal of, or interest on, the Advances or any other amount
otherwise payable under this Agreement, and which is of a sum which, with
respect to the related sum or sums received by the other Banks, is in a greater
proportion than that which the total amount of such Obligation then owed and due
to such Bank bears to the total amount of such Obligation then owed and due to
all of the Banks immediately prior to such receipt, then such Bank receiving
such excess payment shall purchase for cash without recourse or warranty from
the other Banks an interest in the Obligations of the Company to such Banks in
such amount as shall result in a proportional participation by all the Banks in
such amount; provided, however, that if all or any portion of such excess amount
is thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the
Company under this Agreement shall be absolute, unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances whatsoever, notwithstanding, without limitation, the
following:
(i) any lack of validity or enforceability of the Letter of
Credit, the Bonds, any Operative Document or any other instrument or agreement
related thereto;
(ii) any amendment or waiver of or any consent to departure from
all or any of the Operative Documents, the Letter of Credit or the Bonds;
(iii) the existence of any claim, set off, defense or other rights
which the Company may have at any time against the Issuer, the holders of the
Bonds, any beneficiary or transferee of the Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the Agent,
WestLB, the Banks (other than the defense of indefeasible payment to the Agent,
WestLB or the Banks, as applicable, in accordance with the terms of this
Agreement) or any other Person, whether in connection with the Bonds, the Letter
of Credit, any Operative Document or any other related or unrelated document or
transaction;
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(iv) any statement or any document presented under the Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement or information therein being untrue or inaccurate in any
respect whatsoever;
(v) payment by WestLB under the Letter of Credit against
presentation of a sight draft or certificate which does not comply with the
terms of the Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that such other circumstance or
happening shall not have been the result of gross negligence or willful
misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time owing to
the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at any time by
the Company on one Business Day's notice stating the amount to be prepaid (which
shall be $100,000 or any integral multiple of $5,000 in excess thereof) and (ii)
at any time in connection with a remarketing of Bonds pursuant to Section 13.06
of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the Agent
of the amount to be prepaid pursuant to clause (i) or (ii) of Section 4.01 (the
"Prepayment Amount"), together with accrued interest, as set forth in Section
3.02(ii), to the date of such prepayment on the amount to be prepaid, the
outstanding obligations of the Company under Section 3.02(ii) shall be reduced
by the amount of such prepayment and interest shall cease to accrue on the
amount prepaid. In addition, upon payment to the Agent of the Prepayment Amount
and the amount owing, if any, in respect of the "C Drawing" made in conjunction
with the "A Drawing" to which such Prepayment Amount relates, the Agent shall
direct the Tender Agent to release Escrow Bonds in an aggregate principal amount
equal to the Prepayment Amount, all in accordance with the provisions of Section
7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is subject
to the following conditions:
Section 5.01. Delivery of Bonds and Operative Documents. The
Operative Documents and the Bonds shall each have been
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executed and delivered by the respective parties thereto, shall each be in full
force and effect, and shall each be in form and substance satisfactory to the
Agent, WestLB and each Bank. The Agent shall have received (with sufficient
copies for WestLB and each Bank) an executed or conformed copy of each Operative
Document and a specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have received
(with sufficient copies for WestLB and each Bank), on or before the Date of
Issuance, the following, in form and substance satisfactory to the Agent, WestLB
and each Bank:
(i) copies of the resolutions of the Board of Directors of the
Company or any duly authorized committee thereof, authorizing the
execution, delivery and performance of this Agreement, certified by the
President, any Vice President, the chief financial officer, the
Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and true
signatures of the officers of the Company authorized to sign this
Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special counsel to
the Company, substantially in the form of Exhibit B-1 attached hereto,
and (b) William O. Bonin, special Louisiana counsel to the Company,
substantially in the form of Exhibit B-2 attached hereto, in each case
dated the Date of Issuance, addressed to WestLB, the Agent and the
Banks;
(iv) a copy of the Reoffering Supplement which includes, as an
attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of the
Company, certified as of a recent date by the Secretary of State of the
State of Louisiana, together with a certificate of good standing for the
Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably
satisfactory to the Agent, indicating the consent by the Process Agent
to its appointment by the Company as its agent to receive service of
process as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of the
Date of Issuance by the President, any Vice President, the chief
financial officer, the Secretary-Treasurer or an Assistant Secretary of
the Company;
(viii) an opinion (or a signed copy of such opinion together
with a satisfactory reliance letter) of Foley & Judell L.L.P.,
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Bond Counsel, dated the Date of Issuance, addressed to WestLB, the Agent
and the Banks and in form and substance satisfactory to WestLB, the
Agent and the Banks, to the effect that the delivery of the Letter of
Credit does not conflict with the laws of the State of Louisiana, is
permitted by the Indenture and the Refunding Agreement, complies with
the terms of the Indenture and the Refunding Agreement and will not
adversely affect any exclusion from gross income for federal income tax
purposes of interest on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance,
substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P pursuant to
Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments, approvals
and opinions as WestLB, the Agent or any Bank or any of their respective
counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The
following statements shall be true and correct on the Date of Issuance and the
Agent shall have received (with sufficient copies for WestLB and each Bank) an
Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving effect
to the execution and delivery of this Agreement and the issuance of the
Letter of Credit, all representations and warranties made by the Company
in Article VI of this Agreement and in each other Operative Document to
which it is a party, and all representations and warranties otherwise
made by the Company in writing in connection herewith or with any other
Operative Document to which it is a party, are true and correct on and
as of the Date of Issuance as though made on and as of such date; and
(ii) on the Date of Issuance, both before and after giving
effect to the execution and delivery of this Agreement and the issuance
of the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date of
Issuance:
(i) there shall be no order or other restrictions in effect
issued by any court, governmental or regulatory agency or arbitrator
against or directly involving any party to any Operative Document or the
Bonds which prevents such party from performing any of its obligations
under such Operative Document or the Bonds;
(ii) each Person party to an Operative Document or the Bonds
shall have received all necessary governmental,
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regulatory and third party consents and approvals required to be
obtained by such Person in order to consummate the transactions
contemplated by the Operative Documents and the Bonds, including, in the
case of the Company and without limitation, the approval of the
Louisiana Public Service Commission in respect of the transactions
contemplated in connection with the issuance of the Bonds and the
consummation of the transactions contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of Credit,
all of the conditions specified in the Other Reimbursement Agreements
for the issuance of the Other Letters of Credit shall have been
satisfied (or waived by the Required Banks (as defined therein)), and
the Other Letters of Credit shall have been issued simultaneously with
the issuance of the Letter of Credit to the beneficiary thereof pursuant
to the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in the
business, operations, condition (financial or otherwise) or prospects of
the Company or of the Company and its Subsidiaries taken as a whole
since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received all fees
set forth or referred to in Article II hereof that shall be due and
payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal proceedings
and all instruments in connection with the transactions contemplated by this
Agreement and the other Operative Documents shall be satisfactory in form and
substance to the Agent, WestLB, the Banks and their respective counsel, and each
of the Agent, WestLB and the Banks shall have received all information and
copies of all documents, including records of corporate proceedings,
governmental approvals, incumbency certificates, and opinions which any of them
may have reasonably requested in connection with the transactions contemplated
by this Agreement and the other Operative Documents, such documents where
appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to
enter into this Agreement, and in order to induce WestLB to issue the Letter of
Credit, the Company makes the following representations and warranties to the
Agent, WestLB and each of the Banks, which representations and warranties shall
survive the execution and delivery of this Agreement and the Letter of Credit,
regardless of any investigation made by or on behalf of the Agent, WestLB or any
of the Banks:
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Section 6.01. Due Organization, Etc. Each of the Company and its
Subsidiaries (i) is a duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation and (ii) has
all requisite corporate power and authority to own its property and assets and
to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System or any rules or regulations of
the Louisiana Public Service Commission), order, writ, judgment, injunction or
decree presently in effect having applicability to the Company or any of its
Subsidiaries, (v) except as required by the provisions of the Refunding
Agreement, do not and will not result in or require the creation of any Lien
upon or with respect to any of the properties of the Company or any of its
Subsidiaries and (vi) do not and will not result in the violation of or be in
conflict with or result in a default under or breach or termination of any term
or provision of any mortgage, lease, agreement, indenture, contract, instrument
or other document to or by which the Company or any of its Subsidiaries is a
party or otherwise bound or to which any of the assets or properties of the
Company or any of its Subsidiaries are subject, except any such violation,
conflict, default, breach or termination referred to in this clause (vi) which,
individually or in the aggregate, (a) would not affect the legality, validity,
enforceability or binding effect of the Bonds, this Agreement or any of the
other Operative Documents and (b) would not have a material adverse effect on
the business, operations, condition (financial or otherwise) or prospects of
the Company or of the Company and its Subsidiaries taken as a whole.
Section 6.03. Due Authorization. No order, authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Company of this Agreement or any of the other Operative
Documents to which it is a party, other than any of the foregoing which shall
have been previously obtained or made by the Company and which are currently in
full force and effect. The Louisiana Public Service Commission has duly issued
its order authorizing the Company to enter into this Agreement and the other
Operative Documents to which it is a party and to take all action contemplated
hereby and thereby or in connection herewith or therewith, and such orders
remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the
other Operative Documents to which the Company is a party constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
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Section 6.05. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries or any of their respective properties or
rights, or involving any of the Operative Documents, before any court,
administrative, governmental or regulatory agency or arbitrator, and there is no
pending or, to the knowledge of the Company, proposed legislative, regulatory,
rule-making, rate-setting or investigatory proceeding before any federal, state,
county or municipal government, department, commission, board or agency or any
other instrumentality of any of them involving or affecting the Company, any of
its Subsidiaries or the Issuer, in any case which (i) alone or together with
others would, if adversely determined, have a material adverse effect on the
business, operations, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a whole (except that for
the purposes of this clause (I) an earnings review or the commencement by the
Company of rate increase proceedings with the Louisiana Public Service
Commission or the Federal Energy Regulatory Commission shall not constitute such
a pending or threatened action or proceeding unless and until such commission's
determination is made thereunder that has such a material adverse effect) or
(ii) questions the legality, validity, enforceability or binding effect of the
Bonds, this Agreement or any other Operative Document or would impair materially
the Company's ability to perform its obligations under this Agreement or any of
the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each Plan,
other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA, (i)
each such Plan is in substantial compliance with ERISA and the Code; (ii) no
Reportable Event has occurred; (iii) no such Plan has an Unfunded Current
Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or of
the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within the
meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under the
Code or ERISA on the assets of the Company or any of its Subsidiaries or any
ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries nor any
ERISA Affiliate maintains or contributes to any employee welfare benefit plan as
defined in Section 3(1) of ERISA which provides benefits to retired employees
(other than as required by Section 601 of
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ERISA) the obligations with respect to which could have a material adverse
effect on the ability of the Company to perform any of its obligations under
this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of its
Subsidiaries is in default under or breach of (nor does any circumstance or
occurrence exist which, with the passage of time or the giving of notice or
both, would constitute a default under or breach of) any mortgage, lease,
agreement, indenture, contract, instrument or other document to which it is a
party or to which it or any of its properties may be bound, other than any such
breach or default which would not, individually or in the aggregate, have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.08. Financial Statements. The Company has furnished, or
caused to be furnished, to the Agent, with sufficient copies for WestLB and each
Bank, the following financial statements: (i) the consolidated balance sheets of
the Company and its Subsidiaries as at December 31, 1995 and December 31, 1996,
and the related consolidated statements of income and changes in shareholders'
equity and of cash flows for the fiscal years ended as of such dates, which, in
each case, have been certified by Coopers & Lybrand L.L.P., independent
certified public accountants for the Company; and (ii) the consolidated balance
sheets of the Company and its Subsidiaries as at June 30, 1995 and June 30,
1996, and the related consolidated statements of income and of cash flows for
the six months ended as of such dates, which, in each case, have been prepared
by the Company. Such financial statements (including any related schedules
and/or notes thereto) have been prepared in accordance with generally accepted
accounting principles in the United States consistently applied throughout the
periods involved (except as otherwise set forth in the notes to said financial
statements) and reflect all liabilities, direct and contingent, of the Company
and its Subsidiaries required to be shown in accordance with such principles.
Such financial statements fairly present the consolidated financial condition of
the Company as at the dates thereof and the consolidated results of operations
and cash flows for the periods indicated (subject, as to any interim statements,
to normal year end adjustments). There has been no material adverse change in
the business, operations, condition (financial or otherwise) or prospects of the
Company or of the Company and its Subsidiaries taken as a whole since December
31, 1996.
Section 6.09. Taxes. Each of the Company and its Subsidiaries has
filed all federal and state income tax returns which are required to be filed by
it, and each has paid all taxes as shown on such returns and on all assessments
received by it except to the extent that such taxes have not become due and
other than taxes the amount or validity of which are currently being contested
in good faith by appropriate proceedings with respect to which reserves in
accordance with general accepted accounting principles have been provided.
Section 6.10. Disclosure. Intentionally Omitted.
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Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the
Company and its Subsidiaries is in compliance with all applicable statutes,
rules and regulations governing pollution and environmental control, equal
employment opportunity and employee safety in all jurisdictions in which it is
doing business, other than such noncompliances which, individually or in the
aggregate, would not have a material adverse effect on the business, operations,
condition (financial or otherwise) or prospects of the Company or of the Company
and its Subsidiaries taken as a whole. No Lien in favor of any governmental
authority has been asserted or recorded under any statute, rule or regulation,
governing pollution and environmental control with respect to any of the assets
or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to WestLB,
the Agent and each of the Banks each of the representations and warranties made
by it in each of the other Operative Documents to which it is a party to the
same extent as if the same were set forth at length herein. There is no default
by the Company or, to the knowledge of the Company, by any other Person under
any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally
engaged in, nor does it have as one of its principal activities, the business of
extending credit for the purpose of purchasing or carrying any "margin stock"
(as such term is defined in Regulation U of the Board of Governors of the
Federal Reserve System). None of the proceeds of the Bonds or of any drawing
under the Letter of Credit will be used, directly or indirectly, to purchase or
carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an
"investment company", as defined in the Investment Company Act of 1940, as
amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance
until such time as the Letter of Credit is no longer outstanding and all
Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject to
Section 8.01 hereof, the Company will, and will cause each of its Subsidiaries
to, (i) preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and (ii) qualify and remain
qualified as a foreign
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corporation in good standing in each jurisdiction where the operation of its
businesses or the ownership of its assets requires such qualification; provided,
however, that the Company and its Subsidiaries will not be required to preserve
any such right, franchise, privilege or qualification if the Company or any such
Subsidiary determines that the preservation thereof is no longer desirable or,
in the case of qualification, required, and determines that the loss of such
rights, franchises, privileges or qualifications will not have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole.
Section 7.02. Compliance with Law; Environmental and Other
Matters. The Company will, and will cause each of its Subsidiaries to, comply
with the requirements of all applicable laws, rules, regulations and orders of
any governmental authority having jurisdiction over it (including, without
limitation, ERISA and the statutes, rules and regulations thereunder and all
statutes, rules and regulations governing pollution and environmental control,
equal employment opportunity and employee safety), except for such
noncompliances which, individually or in the aggregate, would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 7.03. Performance of Agreements. The Company will, and
will cause each of its Subsidiaries to, observe and perform (i) with respect to
the Company, all of its obligations under this Agreement and the other Operative
Documents to which it is a party and (ii) with respect to the Company and its
Subsidiaries, all of their respective obligations under each mortgage, lease,
agreement, indenture, contract, instrument or other document to which it is or
may become a party or by which it is or may become bound, except such
non-observance or non-performance which would not, individually or in the
aggregate, have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will, and
will cause each of its Subsidiaries to, maintain insurance with responsible and
reputable insurance companies in such amounts, with such deductibles and
covering such risks as is usually maintained by companies conducting similar
businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will, for
itself and on behalf of each of its Subsidiaries, furnish to the Agent, WestLB
and each Bank the following: (i) immediately following the occurrence of any
Default or Event of Default, an Officer's Certificate setting forth details of
such Default or Event of Default, the period of existence thereof and the action
proposed to be taken by the Company or such Subsidiary with respect thereto and
(ii) such other information respecting the business, operations, condition
(financial or otherwise) or prospects of the Company or any of its Subsidiaries
as WestLB, the Agent or any Bank may from time to time reasonably request.
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Section 7.06. ERISA. The Company will, and will cause each of its
Subsidiaries and ERISA Affiliates to, as soon as possible and in any event
within ten days after the Company or any of its Subsidiaries or ERISA Affiliates
knows of the occurrence of any of the following, deliver to the Agent, with
sufficient copies for WestLB and each Bank, a certificate of the chief financial
officer of the Company, setting forth details as to such occurrence and the
action, if any, which the Company, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Company, such Subsidiary, such ERISA
Affiliate, the PBGC, a Plan participant or the Plan Administrator with respect
thereto: (i) the occurrence of a Reportable Event; (ii) the existence of an
accumulated funding deficiency; (iii) the making of an application to the
Secretary of the Treasury for a waiver or modification of the minimum funding
standard (including any required installment payments) or extension of any
amortization period under Section 412 of the Code with respect to a Plan; (iv)
the termination, reorganization, partition or declaration of insolvency under
Title IV of ERISA of a Plan; (v) the existence of an Unfunded Current Liability
with respect to a Plan which has resulted in a lien being imposed under ERISA or
the Code with respect to the Company or any of its Subsidiaries or ERISA
Affiliates; (vi) the institution of proceedings to terminate a Plan; (vii) the
institution of a proceeding pursuant to Section 515 of ERISA to collect
delinquent contributions from the Company or any of its Subsidiaries or ERISA
Affiliates; or (viii) the incurrence of any liability (including any contingent
or secondary liability) by the Company or any of its Subsidiaries or ERISA
Affiliates to or on account of the termination or withdrawal from a Plan under
Sections 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA; provided, however, that,
with respect to any person (as defined in Section 3(9) of ERISA) that is an
ERISA Affiliate only within the meaning of Section 414(m) or 414(o) of the Code,
the Company need only use its best efforts to cause such person to deliver such
certificate and notices. The Company will deliver and, with respect to any
person (as defined in Section 3(9) of ERISA) that is an ERISA Affiliate only
within the meaning of Section 414(m) or 414(o), will use its best efforts to
obtain and deliver, to the Agent, with sufficient copies for WestLB and each
Bank, a complete copy of the annual report (Form 5500) of each Plan required to
be filed with the Internal Revenue Service. Copies of annual reports and any
notices received by the Company, any of its Subsidiaries or any ERISA Affiliates
with respect to any Plan shall be delivered to the Agent no later than ten days
after the later of the date such report or notice has been filed with the
Internal Revenue Service or received by the Company, such Subsidiary or such
ERISA Affiliate; provided, however, that, with respect to any person (as defined
in Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or Section 414(o) of the Code, the Company need only use its best
efforts to obtain such report or notice.
Section 7.07. Financial Statements. The Company will deliver, or
cause to be delivered, to the Agent, with sufficient copies for WestLB and each
Bank, in each case in duplicate: (i) as soon as available and in any event
within 60 days after the end of each fiscal quarterly period in each fiscal year
of the Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and cash flows of the Company for such period
and for the period from the beginning of the then current fiscal year to the end
of such fiscal quarterly period, setting forth in each case
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in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as available
and in any event within 120 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of its
Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative Document,
(v) promptly, and in any event within ten (10) days after an officer of the
Company obtains knowledge thereof, notice of any event not otherwise specified
in clause (iv) above which, individually or in the aggregate, would have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole, (vi) promptly after the sending or filing thereof, copies of
all reports and registration statements (including without limitation Forms 10-K
and 10Q) which the Company sends to any of its security holders or which the
Company or any of its Subsidiaries files with Securities and Exchange Commission
or any national securities exchange, (vii) promptly upon the written request of
the Agent, WestLB or any Bank, copies of any report, application, petition or
other similar document which the Company or any of its Subsidiaries sends to or
files with the Federal Energy Regulatory Commission or the Louisiana Public
Service Commission, and (viii) such other financial information as the Agent,
WestLB or any Bank may reasonably request. Together with each delivery of
financial statements required by clauses (i) and (ii) above, the Company shall
deliver to the Agent, with sufficient copies for WestLB and each Bank, (a) an
Officer's Certificate stating that there exists no Default or Event of Default
or, if any such Default or Event of Default exists, stating the nature thereof,
the period of existence thereof and what action the Company proposes to take
with respect thereto and (b) a certificate prepared and certified by the chief
financial officer of chief accounting officer of the Company setting forth the
calculations required to establish whether the Company is in compliance with the
provisions of Sections 8.05 and 8.06 hereof at the end of such fiscal quarter or
fiscal year, as the case may be. The Agent, WestLB and the Banks are hereby
authorized to
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deliver a copy of any financial statement or other document delivered to them
pursuant to this Section 7.07 to any regulatory body having jurisdiction over
them and to any prospective Participant in their interest herein or in the
Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause each
of its Subsidiaries to, permit officers and designated representatives of the
Agent, WestLB or any Bank to visit and inspect, at such Person's own expense,
any of the properties of the Company or any of its Subsidiaries, to examine the
corporate books and financial records of such entities and make copies thereof
or extracts therefrom, and to discuss the affairs, finances and accounts of any
of such entities with the principal officers and the internal and independent
accountants of such entities, all upon reasonable prior notice and during
regular business hours and as often as the Agent, WestLB or such Bank may
reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and will
cause each of its Subsidiaries to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, and all lawful claims which, if unpaid,
would become a Lien upon any of its properties, in each case at such time as
such taxes, assessments, governmental charges, levies or claims shall become due
and payable; provided, however, that neither the Company nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by appropriate proceedings and
as to which appropriate reserves are being maintained in accordance with
generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and will
cause each of its Subsidiaries to, keep all property that is useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
Section 7.11. Certain Notices. The Company will furnish to the
Agent, with sufficient copies for WestLB and each Bank, a copy of any notice,
certification, demand or other writing or communication given or received by the
Company under or in connection with the Bonds or any of the other Operative
Documents, in each case promptly after the receipt or giving of the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance
and until such time as the Letter of Credit is no longer outstanding and all
Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. The
Company will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation,
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or convey, sell, lease or otherwise dispose of, whether in a single transaction
or a series of related transactions, more than 5% of the consolidated total
assets of the Company and its Subsidiaries as of the date of any such
conveyance, sale, lease or other disposition, to any Person, or agree to do any
of the foregoing at any future time; provided, however, that nothing contained
in this Section 8.01 shall prohibit (i) a consolidation or merger of two or more
Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries with or
into the Company, if the Company is the surviving corporation, (iii) a
consolidation or merger of another Person into the Company or a Subsidiary if
the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale,
lease or other disposition of assets of a Subsidiary to the Company or another
Subsidiary, (v) the sale or other disposition of any Subsidiary in which the
Company has made no capital investment (either by cash contribution,
contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary
of its accounts receivable or other receivables or sales of undivided interests
in such accounts receivable and other receivables or (vii) the sale or other
disposition of pollution control facilities in connection with the issuance by a
governmental entity of pollution control bonds substantially all of the proceeds
of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of
Interest Rate Periods. The Company will not, without the prior consent of the
Required Banks, such consent not to be unreasonably withheld, (i) take any
action to cause a redemption of any of the Bonds, (ii) take any action to cause
the Interest Rate Period (as defined in the Indenture) in respect of the Bonds
to be adjusted or otherwise changed to a Short Term Interest Rate Period or a
Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any
affirmative action to purchase, or to permit any of its Subsidiaries to
purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company will
not, without the prior written consent of the Required Banks, terminate or amend
or consent to the termination or amendment of any of the terms or provisions of
the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets (real or personal, tangible or
intangible) of the Company or any of its Subsidiaries, whether now owned or
hereafter acquired, provided, however, that the provisions of this Section 8.04
shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04 of
the CLECO Mortgage as presently in effect: (a) liens for taxes,
assessments or governmental charges not then delinquent; (b) the lien of
taxes, assessments or governmental charges due, or to become due, the
validity of which is being contested at the time by the Company in good
faith and, if necessary, by appropriate legal proceedings, provided that
the Company shall have made such provision as may be
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required by the trustee under the CLECO Mortgage for the payment of any
amount or the giving of such security as shall be required to prevent
the loss or forfeiture of any of the mortgaged and pledged property, and
for the payment of the amount of any such taxes, assessments or
governmental charges as shall ultimately be determined to be due and
payable; (c) any liens, the Indebtedness secured by which has not been
assumed by the Company and on which it does not customarily pay interest
charges, existing upon real estate or rights in or relating to real
estate acquired by the Company for substation, transmission lines,
distribution lines, pipelines, water mains, or right-of-way purposes or
for storeroom or service buildings incidental to any of the foregoing;
(d) rights reserved to or vested in any municipality or public authority
by the terms of any right, power, franchise, grant, license, permit or
by any provision of law to terminate such right, power, franchise,
grant, license or permit or to purchase, condemn or recapture or to
designate a purchaser of any of the property of the Company; (e) leases,
easements, restrictions, exceptions or reservations in any property of
the Company created at or before the acquisition thereof by the Company
for the purpose of roads, water mains, pipe lines, transmission lines,
distribution lines or for the joint or common use of real property and
equipment and other like purposes, and other minor defects and
irregularities of title in any property, in any case which do not
materially impair the use of such property in the operation of the
business of the Company or which the Company itself has power to cure by
appropriate legal proceedings; (f) rights reserved to or vested in any
municipality or public authority to use or control or regulate any
property of the Company; (g) any obligations or duties affecting the
property of the Company to any municipality or public authority with
respect to any franchise, grant, license or permit; (h) undetermined
liens and charges incidental to construction, except such as may result
from any delinquent obligation of the Company for the payment of money
on account of such construction; (i) funded liens; or (j) obligations
arising under agreements or otherwise relating to the ownership by the
Company of an undivided interest in real or personal property;
(iii) Liens on any property acquired, constructed or improved by
the Company or any of its Subsidiaries after the date of this Agreement
which are created or assumed contemporaneously with, or within 120 days
after, such acquisition or completion of such construction or
improvement, or within six months thereafter pursuant to a firm
commitment for financing arranged with a lender or investor within such
120-day period, to secure or provide for the payment of all or any part
of the purchase price of such property or the cost of such construction
or improvement incurred after the date of this Agreement, or, in
addition to Liens contemplated by clauses (iv) and (v) below, Liens on
any property existing at the time of acquisition thereof, provided that
the Liens shall not apply to any property theretofore owned by the
Company or any of its Subsidiaries other than, in the case of any such
construction or improvement, any theretofore unimproved real property on
which the property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a
corporation which is merged with or into or consolidated
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with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation existing
at the time such corporation becomes a Subsidiary of the Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the Company
or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any state,
any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any Indebtedness incurred for the purpose of financing all
or any part of the purchase price of the cost of constructing or
improving the property subject to such Liens, including, without
limitation, Liens to secure pollution control or industrial revenue bond
type Indebtedness;
(viii) Liens to secure sales by the Company or any of its
Subsidiaries of accounts receivable or other receivables or sales of
undivided interests in such accounts receivable and other receivables
provided that such liens apply only to the accounts receivable sold and
related security;
(ix) Liens on any property (including any natural gas, oil or
other mineral property) to secure all or part of the cost of
exploration, drilling or development thereof or to secure Indebtedness
incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set forth
on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the ordinary
course of business to secure obligations under worker's compensation
laws or similar legislation, including liens of judgments thereunder
which are not currently dischargeable, (b) deposits in the ordinary
course of business to secure, or in lieu of, surety, appeal, or customs
bonds to which the Company is a party, (c) Liens created by or resulting
from any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings diligently conducted,
(d) pledges or deposits in the ordinary course of business to secure
performance in connection with bids, tenders or contracts (other than
contracts for the payment of money) or (e) materialmen's, mechanics',
carriers', worker's, repairmen's or other like liens incurred in the
ordinary course of business for sums not yet due or currently being
contested in good faith by appropriate proceedings diligently conducted,
or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Indebtedness secured by any
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Lien referred to in the foregoing clauses (i) to (xi), inclusive, or
this clause (xii); provided, however, that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or
replacement plus the amount of any redemption or repurchase premiums
incurred in retiring such Indebtedness, and that such extension, renewal
or replacement shall be limited to all or a part of the property or
indebtedness which secured the Lien so extended, renewed or replaced
(plus improvements on such property); and
(xiii) Liens not otherwise permitted by foregoing clauses (i) to
(xii), inclusive, to the extent such Liens encumber, in the aggregate,
no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not
permit the ratio of EBITDA to Consolidated Interest Expense at any time
(determined in each instance using the most recently completed 12-month period
for which the relevant financial information is available) to be less than 2.00
to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will not,
at any time, permit Consolidated Tangible Net Worth to be less than 35% of Total
Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following events
(each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in this
Agreement or in any of the other Operative Documents or in any writing
furnished in connection with or pursuant to this Agreement or any other
Operative Document shall be false or incomplete in any material respect
when made or deemed made; or
(ii) the Company shall fail to make any payment required to be
made by it when due hereunder (including, without limitation, pursuant
to Article II or Article III hereof) or under any or the Operative
Documents; or
(iii) the occurrence of an "event of default" as described and
defined in the Indenture or the Refunding Agreement; or
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(iv) the occurrence of an "event of default" as described and
defined in either of the Other Reimbursement Agreements; or
(v) the Company shall fail to perform or observe any of the
terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any of the
Operative Documents on its part to be performed or observed and (a) with
respect to any such term, covenant or agreement contained herein, any
such failure remains unremedied for 30 days, and (b) with respect to any
such term, covenant or agreement contained in any of the other Operative
Documents, any such failure remains unremedied after any applicable
grace period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or any
other Operative Document shall at any time for any reason cease to be
valid and binding on any party hereto or thereto (other than the Agent,
WestLB or any Bank), or shall be declared to be null and void, or any
such party (other than the Agent, WestLB or any Bank) shall contest the
validity or enforceability thereof, or the Company shall deny that it
has any further liability or obligation with respect to the Bonds, this
Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in
any payment of principal of or premium, if any, or interest on any
Indebtedness of the Company or such Subsidiary (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) having
an original aggregate principal amount in excess of $5,000,000, and such
default shall continue beyond any period of grace provided with respect
thereto, or the Company or any of its Subsidiaries shall default in the
performance or observance of any other agreement, term or condition
contained in any agreement under which any such Indebtedness is created
(or if any other event of default thereunder or under such agreement
shall occur and be continuing) and the effect of any such default is to
cause, or as a result thereof the holder or holders of such obligation
(or a trustee on behalf of such holder or holders) shall have caused or
shall be entitled to cause, such obligation to become due prior to the
stated maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law commences a voluntary case,
admits in writing its inability to pay its debts generally as they
become due, consents to the appointment of a Custodian of it or for all
or substantially all of its property or makes a general assignment for
the benefit of its creditors; or has an involuntary case filed against
it, or a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that is for relief against the Company or any of its
Subsidiaries in an involuntary case, appoints a Custodian of the Company
or any of its Subsidiaries for all or substantially all of its property
or orders the liquidation of the Company or any of its Subsidiaries, and
such involuntary case, order or decree remains unstayed and in effect
for more than 60 days; or
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(x) with respect to any Plan, other than a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan shall
fail to satisfy the minimum funding standard or a waiver of such
standard or extension of any amortization period is sought under Section
412 of the Code; (b) such Plan is or is proposed to be terminated and as
a result thereof liability in excess of $5,000,000 can be asserted under
Title IV of ERISA as against the Company or any Subsidiary; (c) such
Plan shall have an Unfunded Current Liability in excess of $5,000,000;
or (d) there has been a withdrawal from any such Plan and as a result
liability in excess of $5,000,000 can be asserted under Section 4062(e)
or 4063 of ERISA against the Company or any Subsidiary; or, with respect
to any Plan that is a multiemployer plan under Section 4001(a)(3) of
ERISA, such Plan is insolvent or in reorganization or the Company or any
ERISA Affiliate has withdrawn, or proposes to withdraw, either totally
or partially, from such Plan and, in any case, in the opinion of the
Required Banks, the Company or any Subsidiary might reasonably be
anticipated to incur a liability which would have a material adverse
effect on the business, operations, conditions (financial or otherwise)
or prospects of the Company or the Company and Subsidiaries taken as a
whole; or
(xi) one or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not covered by insurance) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, satisfied,
discharged or stayed or bonded pending appeal within 30 days from the
entry thereof;
then, and in any such event, the Agent may and, upon the written request of the
Required Banks, shall, without prejudice to the rights of the Agent, WestLB or
any Bank, (i) by notice to the Company, declare all amounts payable by the
Company hereunder (including, without limitation, all amounts payable pursuant
to Article II and Article III hereof) to be forthwith due and payable, and the
same shall thereupon become due and payable without demand, presentment, protest
or further notice of any kind, all of which are hereby expressly waived, and/or
(2) with respect to any undrawn amount under the Letter of Credit, require that
the Company place with the Agent a collateral deposit which shall be, in the
opinion of Bond counsel chosen by the Company and acceptable to the Agent,
invested by the Agent in a manner which does not violate Section 148 of the
Code, to secure repayment to the Banks by the Company of any drawings under the
Letter of Credit and/or (3) exercise any or all of its rights and remedies under
the Operative Documents and/or (4) by notice to the Trustee, require the Trustee
to accelerate payment of all of the Bonds and interest accrued thereon as
provided in Section 9.01 of the Indenture; provided that if an Event of Default
described in clause (ix) of this Section 9.01 shall occur and be continuing, all
amounts payable by the Company hereunder shall become immediately due and
payable, without written notice and with out presentment, protest or any other
notice of any kind, all of which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein conferred or
reserved is intended to be exclusive of any other available
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remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement or under any of
the other Operative Documents, whether now or hereafter existing at law or in
equity or by statute. No delay or omission to exercise any right or power
accruing upon any default, omission or failure of performance hereunder shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right or power may be exercised from time to time and as often as may
be deemed expedient. In order to exercise any remedy reserved to the Agent,
WestLB or any Bank in this Agreement, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required or required
by applicable law. In the event any provision contained in this Agreement should
be breached by any party and thereafter duly waived by the other party or
parties so empowered to act, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach hereunder. No
waiver, amendment, release or modification or this Agreement shall be
established by conduct, custom or course of dealing, but solely by an instrument
in writing duly executed by the party or parties "thereto duly authorized by
this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate Westdeutsche
Landesbank Girozentrale, New York Branch, as agent to act as specified herein
and in the other Operative Documents. Each Bank hereby irrevocably authorizes
the Agent to take such action on its behalf under the provisions of this
Agreement, the other Operative Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Agent by the terms hereof and thereof and such other powers as
are-reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its officers, directors, agents or employees.
Section 10.02. Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. Neither the
Agent nor any of its officers, directors, agents or employees shall be liable
for any action taken or omitted by it or them hereunder or under any other
Operative Document or in connection herewith or therewith, unless caused by its
or their gross negligence or willful misconduct as determined by a final,
non-appealable order of a court of competent jurisdiction. The duties of the
Agent shall be mechanical and administrative in nature, and the Agent shall not
have by reason of this Agreement or any other Operative Document a fiduciary
relationship in respect of any Bank. Nothing in this Agreement or any other
Operative Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement or any other Operative Document except as expressly set forth herein.
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Section 10.03. Investigation by Banks. Independently and without
reliance upon the Agent, each Bank, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Company and the transactions contemplated
herein, in each case in connection with the making and the continuance of the LC
Commitments and the Advances and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Company and the transactions referred to in clause (i) above and, except as
expressly provided in this Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the effectiveness of this Agreement or at any time or
times thereafter. The Agent shall not be responsible to any Bank for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Operative Document or the financial condition of the Company or any other
Person or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Operative Document, or the financial condition of the Company or any
other Person or the existence or possible existence of any Default or Event of
Default.
Section 10.04. Instructions. If the Agent shall request
instructions from WestLB, the Banks or the Required Banks, as applicable, with
respect to any act or action (including failure to act) in connection with the
Letter of Credit, this Agreement or any other Operative Document, the Agent
shall be entitled to refrain from such act or taking such action unless and
until the Agent shall have received instructions from WestLB, the Banks or the
Required Banks, as applicable, and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Bank shall
have any right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting hereunder or under any other Operative Document
in accordance with the instructions of WestLB, the Banks or the Required Banks,
as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Operative Document and its duties hereunder and thereunder, upon
advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is not
reimbursed and indemnified by the Company, the Banks will reimburse and
indemnify the Agent, in proportion to their respective LC Commitments (or, if
the Letter of Credit is no longer outstanding, in proportion to their respective
LC Commitments
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immediately prior to the expiration or other termination of the Letter of
Credit), for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Agent in performing its duties hereunder or under any other
Operative Document, or in any way relating to or arising out of this Agreement
or any other Operative Document; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein, and the
term "Banks", "Required Banks" or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Company or any Subsidiary or
Affiliate of the Company to the same extent as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Company or any such Subsidiary or Affiliate for services in connection with this
Agreement and otherwise without having to account for the same to any of the
Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Operative Documents at any time by giving 15 Business Days' prior written
notice to the Company and the Banks. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (ii) and (iii) below or as
otherwise provided below.
(ii) Upon any such notice of resignation, the Required Banks
shall appoint a successor Agent hereunder or thereunder which shall be a
commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed
within such 15 Business Day period, the Agent may then appoint a successor Agent
who shall serve as Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Agent as provided above.
(iv) If no successor Agent has been appointed pursuant to clause
(ii) or (iii) above by the 20th Business Day after the date such notice of
resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Operative Document until such time, if any, as
the Required Banks appoint a successor Agent as provided above.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall obtain the
written consent of the Required Banks, provided that without the consent of each
Bank no such action or omission shall (i) extend the Termination Date of the
Letter of Credit or the final maturity of any Advance, or reduce the rate or
extend the time of payment of interest on any Advance, or reduce the principal
amount of any Advance, or reduce the rate or extend the time of payment of any
fees payable for the benefit of the Banks, or increase the LC Commitment of any
Bank (it being understood that a waiver of any Event of Default shall not
constitute a change in the terms of any LC Commitment of any Bank, and it being
further understood that the LC Commitment of each Bank may be automatically
adjusted pursuant to Section 2.02 hereof), (ii) amend, modify or waive any
provision of this Section 11.01 or Sections 3.05, 3.06, 10.06, 11.03, 11.05,
11.07 or 11.16, (iii) reduce the percentage specified in the definition of
Required Banks, or (iv) consent to the assignment or transfer by the Company of
any of its rights and obligations under this Agreement or any other Operative
Document to which it is a party; provided that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Banks
required above to take such action, affect the rights or duties of the Agent
under this Agreement; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by WestLB in addition to the Banks
required above to take such action, affect the rights or duties of WestLB under
this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue of
the Americas, New York, New York 10036, Attention: Loan Operations, telecopy
number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of Credit, or
to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank hereunder,
to it at the offices of Westdeutsche Landesbank Girozentrale, New York Branch,
1211 Avenue of the Americas, New York, New York 10036, Attention: Trade
Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other than
Westdeutsche Landesbank Girozentrale, New York Branch), to it at its address and
telecopy number set forth opposite its signature below; or as to any party at
such other address or telecopy number as shall be designated by such party in a
written notice to all other parties hereto; provided that any such communication
to the Company may also, at the option of the Person delivering such
communication, be either delivered to the Company at its address set forth above
or to any officer of the Company. All such notices and other communications
shall be effective when received.
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Section 11.03. Set-off. In addition to any rights now or
hereafter granted under applicable law (including, but not limited to, Section
151 of the New York Debtor and Creditor Law) and not by way of limitation of any
such rights, during the continuance of any Event of Default hereunder each Bank
is hereby authorized at any time and from time to time, without notice to the
Company or to any other Person, any such notice being hereby expressly waived,
to set-off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by WestLB or such
Bank to or for the credit or the account of the Company against and on account
of any Obligation or liability of the Company owing to SBC or the Banks under
this Agreement and/or the Letter of Credit at the time, including, without
limitation, all claims of any nature or description arising out of or in
connection with this Agreement and/or the Letter of Credit, irrespective of
whether or not the Agent, WestLB or any Bank shall have made any demand
hereunder.
Section 11.04. Indemnification. The Company hereby agrees to
protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including without limitation reasonable attorneys' fees)
which such indemnified Person may incur or be subject to as a consequence,
direct or indirect, of (i) the execution and delivery of this Agreement or the
issuance of the Letter of Credit, other than as a result of the gross negligence
or willful misconduct of such indemnified Person, (ii) the failure of WestLB to
honor a drawing under the Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omission herein called
"Government Acts"), (iii) any breach by the Company, the Issuer, the Tender
Agent, the Remarketing Agent or any other Person of any warranty, covenant, term
or condition in, or the occurrence of any default under, this Agreement, any
other Operative Document or the Bonds, together with all reasonable expenses
resulting from the compromise or defense of any claims or liabilities arising as
a result of any such breach or default, (iv) any inaccuracy or alleged
inaccuracy, or any untrue statement or alleged untrue statement, contained in
the Preliminary Official Statement or the Reoffering Supplement, which includes,
as an attachment thereto, the Official Statement, or by reason of the omission
or alleged omission to state therein any fact necessary to make such statements,
in light of the circumstances under which they were made, not misleading
(provided that this Section 11.04 shall not apply to any information contained
in the Reoffering Supplement under the caption "WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH" or in the Preliminary Official Statement or the
Official Statement under the caption "SWISS BANK CORPORATION, NEW YORK BRANCH")
and (v) the defense against any legal action challenging the validity of any of
the above referenced agreements or instruments. Nothing in this Section 11.04 is
intended to limit the reimbursement or other obligations hereunder of the
Company. The obligations of the Company under this Section 11.04 shall survive
the payment of the Bonds and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a
continuing obligation and shall (i) be binding upon the Company and
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its successors and assigns and (ii) inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns;
provided, however, that the Company may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of WestLB and all of
the Banks, and, provided further, that, although any Bank may grant
participations in its rights hereunder and under the Letter of Credit, such Bank
shall remain a "Bank" for all purposes hereunder, the Participant shall not
constitute a "Bank" hereunder, the Company shall continue to deal solely with
the Agent and such Bank (and not with any Participant) hereunder and with
respect to this Agreement and the Letter of Credit and no such participation
shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall not
have any rights under this Agreement or any of the other Operative Documents
(the Participant's rights against such transferring Bank to be those set forth
in the agreement executed by such Bank in favor of the Participant relating
thereto) and all amounts payable by the Company hereunder shall be determined as
if such Bank had not sold such participation, except that the Participant shall
be entitled to the benefits of Sections 2.09 and 2.10 hereof as set forth
therein. In connection with any such participation, the Bank proposing to
transfer or grant such participation may disclose to the proposed Participant
any information that the Company is required to deliver to such Bank pursuant to
this Agreement or otherwise delivers to such Bank in connection with such Bank's
credit review or continuing review of the Company and this Agreement, provided,
however, that, prior to any such disclosure, each such Participant shall agree
in writing to preserve the confidentiality of any confidential information
relating to the Company or any of its Subsidiaries received from such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC
Commitment or any Advance of such Bank to another Bank or to another branch or
lending office or, with the written consent of WestLB and the Agent (such
consent not to be unreasonably withheld), an Affiliate of such Bank; provided
that each such Bank agrees that it will use its reasonable efforts (subject to
overall policy considerations of such Bank) to avoid the occurrence of any event
giving rise to the operation of Sections 2.09 and 2.10 hereof as a result of any
such transfer.
Neither WestLB nor any Bank may assign all or any portion of its
rights and obligations hereunder to one or more banks or other financial
institutions, unless (i) WestLB and the Company each shall have given its prior
written consent to such assignment (such consent not to be unreasonably
withheld) and (ii) such assignment shall be consummated pursuant to an
assignment and acceptance agreement reasonably satisfactory to the Agent (such
agreement to state, among other things, that upon the effectiveness of such
assignment, the transferee entity shall become a "Bank" hereunder for all
purposes of this Agreement). Upon the effectiveness of any such assignment, the
transferee entity shall become a "Bank" hereunder for all purposes of this
Agreement and Schedule I attached hereto shall be amended by the Agent to
reflect the new LC Percentage of each Bank after giving effect to such
assignment (which amended Schedule I shall be promptly delivered by the Agent to
the Company, WestLB and each Bank, provided that the failure to deliver or
prepare such amended
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Schedule I shall in no event affect the validity of such assignment or the
respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all
risks of the acts or omissions of the Trustee and any transferee of the Letter
of Credit with respect to its use of the Letter of Credit. Neither the Agent,
WestLB nor Bank, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use which may be made of the Letter of Credit
or for any acts or omissions of the Trustee or any transferee of the Letter of
Credit in connection therewith; (ii) the form, validity, sufficiency or
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of the Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (iii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign the Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iv) failure
of the Trustee to comply fully with the conditions required in order to draw
upon the Letter of Credit; (v) errors, omission, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegram, telex or
otherwise, whether or not they be in cipher; (vi) errors in interpretation of
technical terms; (vii) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under the Letter of Credit or of
the proceeds thereof; (viii) any misapplication by the Trustee of the proceeds
of any drawing under the Letter of Credit; or (ix) any consequences arising from
causes beyond the control of the Agent, WestLB or any Bank, including, without
limitation, any Government Acts. None of the above shall affect, impair, or
prevent the vesting of any of the Agent's, WestLB's or any Bank's rights or
powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent, WestLB or any Bank under or in connection with this Agreement or the
Letter of Credit or the related certificates attached thereto, if taken or
omitted in good faith, shall not put the Agent, WestLB or any Bank under any
resulting liability to the Company, and the Agent, WestLB and each Bank may
accept any documents or instruments that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
any information to the contrary.
The obligations of the Company under this Section 11.06 shall
survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
41
<PAGE> 46
Section 11.07. Expenses, Etc. The Company agrees to pay on demand
(i) all costs and out-of-pocket expenses incurred by WestLB or the Agent in
connection with the preparation, execution, issuance, delivery and
administration of this Agreement, the Letter of Credit and the other Operative
Documents, including, without limitation, the reasonable fees and disbursements
of outside counsel and the allocated time charges and disbursements of internal
counsel for the Agent and WestLB, and of counsel for the Banks with respect
thereto, and (ii) all costs and out-of-pocket expenses, including, without
limitation, the reasonable fees and disbursements of outside counsel and the
allocated time charges and disbursements of internal counsel to the Agent,
WestLB and the Banks with respect thereto, in connection with the enforcement or
preservation of any rights under this Agreement, the Letter of Credit or any
other Operative Document or any modifications, amendments, consents or waivers
or similar occurrences relating to or in respect of this Agreement, the Letter
of Credit or any other Operative Document. In addition, the Company shall pay
any and all stamp and other taxes (other than any franchise or income taxes) and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, the Letter of Credit or any
other Operative Document and agrees to save the Agent, WestLB and the Banks
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes, fees and expenses
referred to in this sentence and in the immediately preceding sentence. The
Company also agrees to indemnify, defend and hold the Agent, WestLB and each
Bank harmless from and against all liability "including, without limitation,
interest, penalties and all reasonable fees and disbursements of counsel) to
which any such Person may become subject insofar as such liability arises out of
or is based upon any action, suit, proceeding or investigation or governmental
action brought or taken in connection with the Project or the use (or the
proposed or potential use) of the proceeds of any drawing under the Letter of
Credit. A request for payment under this Section 11.07 shall be accompanied by
supporting documentation thereof, identifying with reasonable specificity the
basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company irrevocably
(i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Letter of Credit may be brought by or on
behalf of the Agent, WestLB or any Bank in a court of record in the State of New
York or in the Courts of the United States of America located in such State,
(ii) consents to the jurisdiction of each such court in any such suit, action or
proceeding and (iii) waives any objection which it may have to the laying of
venue of any such suit, action or proceeding in any of such courts and any claim
that any such suit, action or proceeding has been brought in an inconvenient
forum. The Company hereby irrevocably appoints CT Corporation System (the
"Process Agent") with an office on the date hereof at 1633 Broadway, New York,
New York 10019 as its agent to receive on behalf of the Company and its property
service of copies of the summons and complaint and any
42
<PAGE> 47
other process which may be served in any such suit, action or proceeding. Such
service may be made by mailing or delivering a copy of such process to the
Company, in care of the Process Agent at the Process Agent's above address, and
the Company hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. The Agent agrees to mail to the Company at
its address provided in Section 11.02 hereof a copy of any summons, complaint or
other process mailed or delivered by it to the Company in care of the Process
Agent. As an alternate method of service, the Company also irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to the Company at its address provided in
Section 11.02 hereof. The Company agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Section 11.09 shall affect the right of the Agent,
WestLB or any Bank to serve legal process in any other manner permitted by law
or affect the right of the Agent, WestLB or any Bank to bring any suit, action
or proceeding against the Company or its property in the courts of any other
jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of
contents and the cover page of this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
Section 11.12. Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Operative
Document or made in writing by the Company in connection herewith or therewith
shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set forth
herein including, without limitation, in Sections 2.09, 2.10, 10.06, 11.04 and
11.07 shall survive the execution and delivery of this Agreement and the
repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any agreement,
certificate or other writing, or any action taken or to be taken, is by the
terms of this Agreement required to be satisfactory to the Agent, WestLB or any
Bank, the determination of such satisfaction shall be made by the Agent, WestLB
or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the conditions
specified in Article V hereof, each of the Banks shall be deemed to have
consented to, approved or accepted or to be satisfied with all matters required
43
<PAGE> 48
there under to be consented to or acceptable or satisfactory to the Banks unless
an officer of the Agent responsible for the transactions contemplated by this
Agreement and holding the position of Vice President or a more senior position
shall have received notice from any such Bank prior to the issuance of the
Letter of Credit specifying such Bank's objections thereto and such objections
shall not have been with drawn by notice to the Agent to that effect.
Section 11.15. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States in conformity with those
used in the preparation of the financial statements of the Company referred to
in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be
furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto). All calculations and computations required to
determine compliance with Sections 8.05 and 8.06 hereof shall utilize accounting
principals and policies in conformity with those used to prepare the financial
statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers "hereunto duly
authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN
---------------------------------
Name: Thomas J. Howlin
Title: Sr. V.P. - Finance and CFO
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN
---------------------------------
Name: Cynthia M. Niesen
Title: Managing Director
By /s/ KAREN E. GAREIS
---------------------------------
Name: Karen E. Gareis
Title: Vice President
44
<PAGE> 49
WACHOVIA BANK
By /s/ DAVID K. ALEXANDER
---------------------------------
Name: David K. Alexander
Title: Senior Vice President
45
<PAGE> 1
EXHIBIT 10(j)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
Parish of DeSoto, Series 1991A Bonds
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II LETTER OF CREDIT; FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.01. Agreement to Issue Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.02. Adjustment to LC Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.03. Request to Extend the Letter of Credit . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04. Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Fronting Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Transfer Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.07. Drawing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.08. Additional Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III REPAYMENT OF DRAWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.01. Repayment of Drawings; Advances . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.02. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Overdue Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.04. Payments; Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Payments to Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Sharing Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.01. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Release of Escrow Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.01. Delivery of Bonds and Operative Documents . . . . . . . . . . . . . . . . . . . . 17
Section 5.02. Sale of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Receipt of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Representations and Warranties; Defaults . . . . . . . . . . . . . . . . . . . . 19
Section 5.05. Certain Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.01. Due Organization, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.02. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.03. Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.07. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.08. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.10. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.11. Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.12. Environmental and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.13. Operative Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.14. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.15. Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.01. Preservation of Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.02. Compliance with Law; Environmental and Other Matters . . . . . . . . . . . . . . 25
Section 7.03. Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.04. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Furnishing of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.06. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.08. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.09. Payment of Taxes, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.10. Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.11. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. . . . . . . . . . . . . . . . . . . . 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.03. Amendment of Operative Document . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.04. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.05. Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.06. Tangible Net Worth Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.02. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.01. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.02. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.03. Investigation by Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.04. Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.05. Reliance by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.07. Agent as a Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.08. Resignation by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.03. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.05. Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.06. Liability of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 11.07. Expenses, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.09. Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.11. Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.12. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . 43
Section 11.13. Survival of Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.14. Satisfaction Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.15. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.16. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
Schedule I List of Banks/LC Commitments/LC Percentages
Schedule II Existing Liens
Exhibit A Form of Irrevocable Letter of Credit
Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P.
Exhibit B-2 Form of Opinion of William O. Bonin
Exhibit C Form of Officer's Certificate
<PAGE> 5
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among
CENTRAL LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing
under the laws of the State of Louisiana (the "Company"), the financial
institutions listed on Schedule I attached hereto (each a "Bank", and
collectively the "Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as agent (in such capacity, together with any successor in such
capacity, the "Agent") and as issuer of the below-referenced Letter of Credit
(in such capacity, "WestLB").
W I T N E S S E T H :
WHEREAS, the Parish of DeSoto, State of Louisiana (the
"Issuer"), pursuant to the Act (as defined in the Indenture hereinafter
referred to), has issued and sold its Adjustable Tender Pollution Control
Revenue Refunding Bonds (Central Louisiana Electric Company, Inc. Project)
Series 1991A in the aggregate principal amount of $25,110,000 (the "Bonds")
pursuant to a Trust Indenture dated as of May 1, 1991 ,as amended and
supplemented by a First Supplemental Trust Indenture dated as of May 1, 1993
(as further amended and supplemented from time to time in accordance with the
terms thereof, the "Indenture") from the Issuer to First National Bank of
Commerce, as trustee (together with its successors in trust and their assigns,
the "Trustee"), and has used the proceeds thereof, together with other
available funds, to refund and redeem in full the Prior Bonds (as hereinafter
defined) pursuant to that certain Refunding Agreement dated as of May 1, 1991
between the Issuer and the Company (as amended from time to time in accordance
with the terms thereof, the "Refunding Agreement"), which Prior Bonds were
issued by the Issuer to finance the cost of acquiring, constructing, improving
and equipping the Company's undivided interest in certain air and water
pollution control facilities, as more specifically described in Exhibit B to
the Refunding Agreement (the "Project"); and
WHEREAS, the Company has requested WestLB to issue its
irrevocable letter of credit in the form of Exhibit A attached hereto (the
"Letter of Credit", which term shall include any substitute therefor or
replacement thereof issued in accordance with the terms of the Letter of
Credit) to replace the irrevocable letter of credit issued by Swiss Bank
Corporation in connection with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set
forth, WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Company, the Agent,WestLB and the Banks are willing to enter
into this Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained
herein and in order to induce WestLB to issue the Letter of
1
<PAGE> 6
Credit, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the
terms defined elsewhere in this Agreement, the following terms shall have the
respective meanings set forth below (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of the
portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to
such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
first Person. The term "control" and "controlled" means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether
through the ownership of voting securities or partnership or other
ownership interests, by contract or otherwise.
"Agent" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such
terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any
similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which
the Agent announces from time to time as its prime lending rate, the
Base Rate to change when and as the prime lending rate changes or (ii)
1/2 of 1% above the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or if such rate is not so published
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<PAGE> 7
for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent. The Base
Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. The Agent, WestLB and
any Bank may make commercial loans or other loans at rates of interest
at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of
principal of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase
Agreements, each dated May 29, 1991, among the Company, Smith Barney,
Harris Upham & Co. Incorporated and the Issuer and The Industrial
Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital
of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday,
Sunday or other day on which commercial banks located in the City of
New York, New York are required or authorized by law to close or on
which The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations
under a lease that are required to be accounted for and classified as
capitalized leases on the balance sheet of the Company or any of its
Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of
interest, or the portion of Purchase Price corresponding to interest,
on the Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of
July 1, 1950, as supplemented and amended from time to time in
accordance with its terms, by the Company to First National Bank of
Commerce (formerly The National Bank of Commerce in New Orleans), as
trustee thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in
effect on the date of this Agreement, and to any subsequent provisions
of the Code amendatory thereof, supplemental thereto or substituted
therefor.
"Company" shall have the meaning given to such term in the first
paragraph of this Agreement.
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<PAGE> 8
"Consolidated Interest Expense" shall mean, for any period, all
amounts accounted for (without duplication) during such period as
interest on Indebtedness, including, without limitation, (i) interest
payable in respect of all Indebtedness under this Agreement, (ii) the
portion of any Capitalized Lease Obligation attributable to interest,
(iii) commissions and other fees and charges payable in respect of all
letters of credit and (iv) the net amount due, if any, in connection
with any interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the
Company and its Subsidiaries less all operating and nonoperating
expenses of the Company and its Subsidiaries including, without
limitation, all charges of a proper character (including current and
deferred taxes on income and current additions to reserves), but not
including in net revenues any gains (net of expenses and taxes
applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e., assets other
than current assets), any gains resulting from the write-up of assets,
any equity of the Company or any Subsidiary in the unremitted earnings
of any Person acquired by the Company or any Subsidiary through
purchase, merger or consolidation or otherwise for any year prior to
the year of acquisition or any deferred credit representing the excess
of equity in any Subsidiary at the date of acquisition over the cost
of the investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of
assets appearing on a consolidated balance sheet of the Company and
its Subsidiaries less, without duplication, the following: (i) all
reserves for depreciation and other asset valuation reserves but
excluding any reserves for deferred U.S. federal income taxes arising
from accelerated amortization or otherwise; (ii) all intangible assets
such as goodwill, trademarks, trade names, patents and unamortized
debt discount and expense carried as an asset on such balance sheet;
and (iii) all appropriate adjustments on account of minority interests
of other Persons holding Voting Stock in any Subsidiary of the
Company; all determined in accordance with generally accepted
accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total
shareholders' equity in the Company and its Subsidiaries, determined
in accordance with generally accepted accounting principles, less the
aggregate net amount of the following items to the extent, if any,
such items were included in consolidated assets or deducted from
consolidated liabilities in connection with the computation of such
shareholders' equity: (i) all licenses, patents, copyrights, trade
names, trademarks, goodwill, experimental or organizational expense,
unamortized debt discount and expense and all other assets which under
generally accepted accounting principles are deemed to be intangibles;
(ii) all investments other than Permitted Investments; (iii) any
write-up of assets (other than current assets) after December 31,
1996; (iv) all assets located outside the United States of America and
Canada and all Indebtedness from any Person to the extent the primary
portion of such Person's assets or business operations are located
outside the United States of America and Canada; and (v)
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<PAGE> 9
the book value of net tangible assets of each Subsidiary acquired in
so-called "pooling of interests" accounting treatment transactions, to
the extent such book value at the time of such acquisition exceeds the
fair value of the consideration paid for such acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness,
lease, dividend or other obligation ("Primary Obligations") of any
other Person (the "Primary Obligor") in any manner, whether directly
or indirectly, including, without limitation, any obligation of such
Person whether or not contingent, (i) to purchase any such Primary
Obligation or any property constituting direct or indirect security
therefor; (ii) to advance or supply funds (a) for the purchase or
payment of any such Primary Obligation or (b) to maintain working
capital or equity capital of the Primary Obligor or otherwise to
maintain the net worth or solvency of the Primary Obligor; (iii) to
purchase property, securities or services primarily for the purpose of
assuring the holder of any such Primary Obligation of the ability of
the Primary Obligor to make payment of any such Primary Obligation; or
(iv) otherwise to assure or hold harmless the holder of such Primary
Obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to
be an amount equal to the stated or determinable amount of the Primary
Obligation in respect of which such Contingent Obligation is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines
in accordance with the Basle Committee on Banking Regulations and
Supervisory Practices set forth in a paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated July
1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit
shall be issued by WestLB to the Trustee pursuant to the terms of this
Agreement.
"Default" shall mean any event which with notice or lapse or time, or
both, or the happening of any further condition, event or act, would
become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for
such period before Consolidated Interest Expense, income taxes,
depreciation and amortization for such period.
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<PAGE> 10
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder. Section references to ERISA are to
ERISA, as in effect on the date of this Agreement, and to any
subsequent provisions of ERISA amendatory thereof, supplemental
thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Company or any Subsidiary of the
Company would be deemed to be a member of the same "controlled group"
within the meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the
Indenture.
"Event of Default" shall have the meaning given to such term in
Section 9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of
this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in
Section 2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section
11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of
such Person for borrowed money or for the deferred purchase price of
property or services, excluding trade accounts payable in the ordinary
course of business; (ii) the face amount of all letters of credit
issued for the account of such Person and, without duplication, all
drafts drawn thereunder; (iii) all liabilities secured by any Lien on
any property owned by such Person, whether or not such liabilities
have been assumed by such Person; (iv) the aggregate amount required,
under generally accepted accounting principles, to be capitalized
under leases under which such Person is the lessee; and (v) all
Contingent Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first
recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first
recital of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section
2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section
2.02 hereof.
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<PAGE> 11
"Letter of Credit" shall have the meaning given to such term in the
second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing
of or agreement to give any financial statement under the Uniform
Commercial Code of any jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, and
its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer be performing the functions
of a securities rating agency, "Moody's" shall be deemed to refer to
any other nationally recognized securities rating agency approved by
the Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB
or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the
President, any Vice President, Secretary- Treasurer or the chief
financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29,
1991, prepared in connection with the issuance and remarketing of the
Bonds, together with all amendments, modifications and supplements
thereto.
"Operative Documents" shall mean and include this Agreement, the
Indenture, the Refunding Agreement, the Remarketing Agreement, the
Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean (i) the Adjustable Tender Pollution Control
Revenue Refunding Bonds (Central Louisiana Electric Company, Inc.
Project) Series l991B issued by the Issuer and (ii) the Adjustable
Tender Pollution Control Revenue Refunding Bonds (Central Louisiana
Electric Company, Inc. Project) Series 1991 issued by The Industrial
Development Board of the Parish of Rapides, Inc.
"Other Letters of Credit" shall mean the letters of credit issued by
Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the
Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement
Agreements dated as of October 15, 1997 among the Company, the
financial institutions party thereto and Westdeutsche Landesbank
Girozentrale, New York Branch, as agent and as issuer of
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<PAGE> 12
the Other Letters of Credit, relating to the Other Bonds.
"Participant" shall mean any entity that purchases a participation
interest from any Bank in the Letter of Credit and this Agreement in
accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section
2.04 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the
United States of America, or any agency thereof, or obligations
guaranteed as to principal and interest by the United States of
America, or any agency thereof, in either case maturing not more than
one year from the date of acquisition thereof; (ii) certificates of
deposit issued by any bank or trust company organized under the laws
of the United States of America or any state thereof and having
capital, surplus and undivided profits of at least $100,000,000
maturing not more than one year from the date of acquisition thereof;
and (iii) other debt obligations which have been given an investment
grade rating by S&P, Moody's or any other nationally recognized rating
agency, provided such obligations mature not more than one year from
the date of acquisition thereof.
"Person" shall mean and include any of an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization
or a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan,
subject to Title IV of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), or at any time
during the five calendar years preceding the date of this Agreement
was maintained or contributed to by (or to which there was an
obligation to contribute of), the Company or any of its Subsidiaries
or an ERISA Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official
Statement, dated May 16, 1991, prepared in connection with the initial
issuance of the Bonds, together with all amendments, modifications and
supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue
Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983
previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section
11.09 hereof.
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"Project" shall have the meaning given to such term in the first
recital of this Agreement.
"Purchase Price" shall have the meaning given to such term in the
Letter of Credit.
"Refunding Agreement" shall have the meaning given to such term in the
first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in
the Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated
October 15, 1997 to the Official Statement dated May 29, 1991, which
has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement
has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit
shall be outstanding, (a) WestLB (to the extent the relevant action
will affect the Letter of Credit or WestLB's obligations with respect
thereto in any way) and (b) Banks whose then outstanding LC
Commitments and the then outstanding Advances (if any) equal or exceed
66-2/3% of the sum of the then Total LC Commitment and then total
outstanding Advances (if any) and (ii) at such times as the Letter of
Credit shall no longer be outstanding, Banks whose then outstanding
Advances equal or exceed 66-2/3% of the then total outstanding
Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, and its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer be
performing the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating
agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the
Letter of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the
time owned by such Person and/or one or more Subsidiaries of such
Person and (ii) any partnership, association, joint venture or other
entity in which such Person and/or one or more Subsidiaries of such
Person has more than a 50% equity interest at the time.
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"Taxes" shall have the meaning given to such term in Section 2.09
hereof.
"Tender Agent" shall have the meaning given to such term in the
Indenture.
"Tender Agreement" shall have the meaning given to such term in the
Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit
terminates or expires in accordance with its terms (as such expiration
date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal
amount of all Indebtedness of the Company or any of its Subsidiaries
which, at the time of the incurrence thereof, had a stated maturity in
excess of one year, exclusive of any intercompany Indebtedness owed by
the Company or any of its Subsidiaries but, in any event, including
all Indebtedness of the Company incurred hereunder (regardless of the
stated maturity thereof) (b) the par or stated value of all
outstanding capital stock (including premiums on capital stock) of all
classes of the Company, exclusive of all such stock held in the
Company's treasury or owned beneficially or of record by any Affiliate
of the Company, and (c) the retained earnings of the Company and its
Subsidiaries, less (ii) unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first
recital of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the present value of the accrued benefits under the Plan
as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 35, based upon
the actuarial assumptions used by the Plan's actuary in the most
recent annual valuation of the Plan, exceeds the fair market value of
the assets allocated thereto, determined in accordance with Section
412 of the Code.
"Voting Stock" shall mean stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of the relevant
corporation, provided, however, that, for purposes of this Agreement,
stock that carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or
not such event shall have happened.
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"WestLB" shall have the meaning given to such term in the first
paragraph of this Agreement.
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees
with the Company, on the terms and subject to the conditions herein set forth
(including, without limitation, the conditions specified in Article V hereof),
to issue the Letter of Credit to the Trustee on October 15, 1997. The initial
face amount of the Letter of Credit shall be $25,531,022.47 (such amount, as
reduced or reinstated from time to time in accordance with the terms of the
Letter of Credit, the "Total LC Commitment"); provided, that no more than
$421,022.47 may be drawn thereunder with respect to the payment of interest on
the Bonds; and, provided further, that in no event shall any amount be drawn
under the Letter of Credit for the payment of any premium on the Bonds. The
Letter of Credit shall expire on October 15, 2000, unless otherwise terminated
or extended. WestLB agrees that it will pay all drawings under the Letter of
Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction or
reinstatement of the Stated Amount of the Letter of Credit in accordance with
the terms thereof, the LC Commitment (as defined below) of each Bank shall be
reduced or increased, respectively, based on the LC Percentage (as defined
below) of such Bank, to reflect the new Stated Amount of the Letter of Credit
(it being understood that the aggregate LC Commitments of the Banks with respect
to the Letter of Credit shall at all times equal the Stated Amount of the Letter
of Credit, and that in no event shall the LC Commitment of any Bank be increased
to an amount in excess of the original LC Commitment of such Bank, except in
accordance with the provisions of Section 11.01 hereof). As used herein, the
terms (i) "LC Percentage" shall mean, for each Bank, that percentage set forth
opposite such Bank's name on Schedule I attached hereto (as Schedule I may be
amended from time to time to reflect adjustments thereto pursuant to Section
11.05 hereof) and (ii) "LC Commitment" shall mean, for each Bank, at any time,
an amount equal to such Bank's LC Percentage at such time multiplied by the
Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any date
which is at least ninety (90) days prior to the date which is not more than two
years preceding the Termination Date of the Letter of Credit, if no Default or
Event of Default shall have occurred and be continuing, the Company may request
in writing to WestLB and the Banks, with a copy to the Agent (such request being
irrevocable), that WestLB extend the Termination Date of the Letter of Credit
for one (1) year (such request being referred to herein as the "Extension
Request"). If the Company shall have made the Extension Request, the Agent
shall, on or prior to the date which is forty-five (45) days after the date of
receipt by the Agent, WestLB and the Banks of such Extension Request, notify the
Company in writing whether or not WestLB and the Banks consent to such Extension
Request and, if WestLB and the
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Banks do so consent, the terms and conditions of such consent, it being
understood and agreed that (i) no such extension shall be granted unless WestLB
and all of the Banks shall have consented in writing to such extension, (ii) if
the Agent shall fail to give such notice within such forty-five (45) day
period, WestLB and the Banks shall be deemed not to have consented to such
extension and (iii) neither WestLB nor any Bank shall have any obligation
whatsoever to extend the Letter of Credit pursuant to this Section 2.03 (or any
liability whatsoever in the event such Extension Request is denied for whatever
reason), any such extension being in the sole and absolute discretion of WestLB
and each of the Banks. If WestLB and the Banks shall agree to extend for one
year the Termination Date of the Letter of Credit, and provided all of the
conditions to such extension specified in the Agent's reply to the Extension
Request shall have been met, WestLB shall issue an amendment to such Letter of
Credit (or a new Letter of Credit, as WestLB may elect) extending the
Termination Date of the Letter of Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees to
pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the first Business Day of
each March, June, September and December occurring prior to the Termination Date
(each such date, a "Payment Date"), commencing December 31, 1997, and on the
Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to the
Agent, for distribution to WestLB, a letter of credit fronting fee as agreed
with WestLB and specified in a letter agreement between the Company and the
Agent. Such fee shall be payable quarterly on each Payment Date commencing with
December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay to
WestLB, for its own account, upon each transfer of the Letter of Credit in
accordance with its terms, $1,000 or such other amount as shall at the time of
such transfer be the charge which WestLB is making generally for transfers of
similar letters of credit. Amounts payable under this Section 2.06 shall be
payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to
WestLB, for its own account, upon each drawing by the Trustee under the Letter
of Credit, the sum of $200 or such other amount as shall at the time of such
drawing be the charge which WestLB is making generally for drawings on similar
letters of credit. Amounts payable under this Section 2.07 shall be payable
quarterly in arrears on each Payment Date, commencing on December 31, 1997, and
on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay to
the Agent for its own account upfront and administrative fees specified in a
letter agreement between the Company and the Agent.
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Section 2.09. Taxes. All payments made by the Company hereunder
shall be made without set off, counterclaim or other defense. All such payments
shall be made free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein (but excluding
any tax imposed on or measured by the net income of WestLB, any Bank or any
Participant, as applicable, pursuant to the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) in which the
principal office or applicable lending office of such Person is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Company agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided for
herein. The Company will furnish to the Agent, within 45 days after the date
the payment of any Taxes is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by the Company. The Company shall
indemnify and hold harmless WestLB, each Bank and each Participant, as
applicable, and reimburse each such Person upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Person.
Section 2.10. Increased Costs. If any change in or enactment of any
law or governmental rule, regulation or order (whether or not having the force
of law) or in the interpretation thereof by any court or administrative or
governmental authority or central bank or comparable agency charged with the
administration thereof (including implementation of the Cooke Commission
Guidelines), or compliance by WestLB, any Bank or any Participant with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, or any change in generally
accepted accounting principles at any time in effect in the United States or in
the Federal Republic of Germany, shall either (i) impose, modify or deem
applicable any reserve, capital adequacy, special deposit or similar requirement
against letters of credit issued by, or assets held by, or deposits in or for
the account of, WestLB, any Bank or any Participant in connection with, or
against participation in, the Letter of Credit or (ii) impose on WestLB, any
Bank or any Participant any other condition relating, directly or indirectly, to
this Agreement, the Letter of Credit or participation in the Letter of Credit,
and the result of any event referred to in the preceding clause (i) or (ii)
shall be to increase the cost to such Person of issuing, maintaining or
participating in the Letter of Credit (which increase in cost shall be
determined by such Person using reasonable allocation methods), then such Person
shall so notify the Agent and, upon demand by the Agent on behalf of such
Person, the Company shall immediately pay to the Agent, for distribution to such
Person, from time to time as specified by the Agent, such additional amounts as
shall be sufficient to compensate such Person for such increased costs from the
date of such change, enactment or compliance, together with interest on each
such amount from the date of demand therefor until payment in full thereof at
the Base Rate plus 2% per annum. A certificate setting forth in reasonable
detail such increased cost incurred by such Person, submitted by such Person to
the Agent and from the Agent to the Company, shall be conclusive, absent
manifest error, as the
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amount thereof. Any Person seeking payment from the Company pursuant to this
Section 2.10 shall so inform the Company promptly upon learning of the
occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company hereby
agrees to pay to WestLB (i) immediately after any payment is made under the
Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay principal
of or interest (or the portion of Purchase Price corresponding to interest) on
the Bonds, an amount equal to such amount so paid under the Letter of Credit and
(ii) on the earlier to occur of the Termination Date and the day next succeeding
the first anniversary of the date that any payment is made under the Letter of
Credit pursuant to any "A Drawing" to pay the portion of Purchase Price
corresponding to principal on the Bonds (such earlier date, the "Term Repayment
Date"), an amount equal to such amount paid under the Letter of Credit together
with interest thereon (a) from and including the date of such drawing to but
excluding the earlier to occur of the Termination Date and the fifteenth (15th)
day following the date of such drawing (such earlier date, the "Interest
Increase Date"), at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at a
rate per annum equal to the Base Rate plus 2%. In the event that the Company
shall fail to reimburse WestLB when due following any drawing specified in
clause (i) above, or WestLB shall make any payment under the Letter of Credit
specified in clause (ii) above and the Company shall not reimburse WestLB for
such payment on the date such payment was made, then, (1) WestLB shall promptly
advise the Agent thereof, (2) the Agent shall promptly advise each of the Banks
thereof and of each such Bank's LC Percentage of such unreimbursed drawing
(expressed both as a percentage and in U.S. dollars), and (3) each Bank (other
than WestLB) shall make available to WestLB in the lawful currency of the United
States by wire transfer of immediately available funds an amount equal to its LC
Percentage of such unreimbursed drawing by transferring the same, at or before
12:00 noon (New York time) on the date designated in such advice, which date
shall be no less than one Business Day after the date of such advice, to WestLB
at its office specified in Section 3.04 hereof. If any payment required to be
made by a Bank to WestLB is not made as provided above, WestLB shall be entitled
to recover such amount from such Bank on demand, together with interest thereon
at a rate per annum equal to (A) the cost to WestLB of acquiring overnight
Federal funds for the initial two (2) days such amount remains unpaid and (B)
the Base Rate per annum thereafter. WestLB (upon the honoring of any drawing),
and each other Bank (upon the payment to WestLB of its LC Percentage of such
drawing as provided above), shall each be deemed to have made a loan (each an
"Advance", and collectively, the "Advances") to the Company. Each such Advance
shall be applied (to the extent of such Advance) in satisfaction of the
Company's reimbursement obligation set forth in the first sentence of this
Section 3.01, and each Advance shall be repayable pursuant to, and shall
otherwise be subject to, the terms and conditions set forth herein.
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Section 3.02. Repayment of Advances. The Company hereby agrees to
pay to the Agent (i) immediately after any Advance is deemed made pursuant to
Section 3.01 above in respect of drawings under the Letter of Credit specified
in Section 3.01(i) above, an amount equal to such Advance so made and (ii) on
the Term Repayment Date, an amount equal to the Advances deemed made pursuant to
Section 3.01 above in respect of drawings under the Letter of Credit specified
in Section 3.01(ii) above together with interest thereon (a) from and including
the date of such Advance to but excluding the Interest Increase Date, at a rate
per annum equal to the Base Rate and (b) from and including the Interest
Increase Date to but excluding the due date thereof, at a rate per annum equal
to the Base Rate plus 2%. All payments of interest and principal on Advances
shall be made to the Agent for distribution to the Banks pro rata on the basis
of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to pay to
WestLB or the Agent, as applicable, for the account of WestLB, the Agent or the
Banks, as applicable, interest on any and all amounts required to be paid to
WestLB, the Agent or the Banks under this Agreement (including, without
limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i)
hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii)
hereof) from and after the due date thereof until payment in full, payable on
demand, at a rate per annum equal to the Base Rate plus 2%; provided that
notwithstanding the foregoing, with respect to the amounts payable pursuant to
Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period immediately
succeeding the due date in respect of such amounts, so long as no Default or
Event of Default shall have occurred and be continuing during such period, the
interest rate payable by the Company pursuant to this Section 3.03 shall be the
Base Rate (it being understood that if any Default or Event of Default shall
occur and be continuing at any time during such fifteen (15) day period, the
interest rate payable by the Company during such fifteen (15) day period shall
be the rate per annum equal to the Base Rate plus 2% per annum). In addition,
the Company hereby agrees to pay to WestLB or the Agent, as applicable, for the
account of WestLB or the Banks, as applicable, interest on any and all amounts
required to be paid to WestLB or the Banks under Sections 3.01(ii) and 3.02(ii)
hereof from and after the due date thereof until payment in full, payable on
demand, at a rate per annum equal to 2% in excess of the interest rate payable
with respect to such amounts immediately prior to such due date.
Section 3.04. Payments; Computations. All payments by the Company
to WestLB or the Agent required to be made under this Agreement shall be made in
lawful currency of the United States by wire transfer of immediately available
funds to the offices of The Chase Manhattan Bank, located at One Chase Manhattan
Plaza, New York, New York, for the account of Westdeutsche Landesbank
Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the case may be,
shall otherwise notify the Company in writing. All computations of amounts
payable under this Agreement shall be computed, in the case of fees and
commissions, on the basis of a year of 360 days and, in the case of interest, on
the basis of a year of 365 (or 366, as the case may be) days, in each case for
the actual number of days occurring in the period for which such fees,
commissions or interest is payable. If any payment required to be made under
this Agreement other than those payments required
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under Sections 2.04, 2.05 and 2.07 becomes due and payable on a day other than
a Business Day, the same shall be payable on the next succeeding Business Day,
and interest shall be payable at the rate otherwise applicable thereto on any
such payment to the Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly
after its receipt of each payment from or on behalf of the Company in respect of
any Obligations of the Company hereunder, it shall distribute such payment to
the Banks pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that if
it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right or set off or banker's
lien, by counterclaim or cross action, by the enforcement of any right hereunder
or under any other Operative Document, or otherwise), which is applicable to the
payment of the principal of, or interest on, the Advances or any other amount
otherwise payable under this Agreement, and which is of a sum which, with
respect to the related sum or sums received by the other Banks, is in a greater
proportion than that which the total amount of such Obligation then owed and due
to such Bank bears to the total amount of such Obligation then owed and due to
all of the Banks immediately prior to such receipt, then such Bank receiving
such excess payment shall purchase for cash without recourse or warranty from
the other Banks an interest in the Obligations of the Company to such Banks in
such amount as shall result in a proportional participation by all the Banks in
such amount; provided, however, that if all or any portion of such excess amount
is thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the Company
under this Agreement shall be absolute, unconditional and irrevocable and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, notwithstanding, without limitation, the following:
(i) any lack of validity or enforceability of the Letter of
Credit, the Bonds, any Operative Document or any other instrument or agreement
related thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the Operative Documents, the Letter of Credit or the Bonds;
(iii) the existence of any claim, set off, defense or other
rights which the Company may have at any time against the Issuer, the holders of
the Bonds, any beneficiary or transferee of the Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting), the Agent,
WestLB, the Banks (other than the defense of indefeasible payment to the Agent,
WestLB or the Banks, as applicable, in accordance with the terms of this
Agreement) or any other Person, whether in connection with the Bonds, the Letter
of Credit, any
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Operative Document or any other related or unrelated document or transaction;
(iv) any statement or any document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement or information therein being untrue or inaccurate
in any respect whatsoever;
(v) payment by WestLB under the Letter of Credit against
presentation of a sight draft or certificate which does not comply with the
terms of the Letter of Credit, provided that such payment shall not have
constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, provided that such other
circumstance or happening shall not have been the result of gross negligence or
willful misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time
owing to the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at
any time by the Company on one Business Day's notice stating the amount to be
prepaid (which shall be $100,000 or any integral multiple of $5,000 in excess
thereof) and (ii) at any time in connection with a remarketing of Bonds
pursuant to Section 13.06 of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the
Agent of the amount to be prepaid pursuant to clause (i) or (ii) of Section
4.01 (the "Prepayment Amount"), together with accrued interest, as set forth in
Section 3.02(ii), to the date of such prepayment on the amount to be prepaid,
the outstanding obligations of the Company under Section 3.02(ii) shall be
reduced by the amount of such prepayment and interest shall cease to accrue on
the amount prepaid. In addition, upon payment to the Agent of the Prepayment
Amount and the amount owing, if any, in respect of the "C Drawing" made in
conjunction with the "A Drawing" to which such Prepayment Amount relates, the
Agent shall direct the Tender Agent to release Escrow Bonds in an aggregate
principal amount equal to the Prepayment Amount, all in accordance with the
provisions of Section 7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is
subject to the following conditions:
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Section 5.01. Delivery of Bonds and Operative Documents. The
Operative Documents and the Bonds shall each have been executed and delivered
by the respective parties thereto, shall each be in full force and effect, and
shall each be in form and substance satisfactory to the Agent, WestLB and each
Bank. The Agent shall have received (with sufficient copies for WestLB and
each Bank) an executed or conformed copy of each Operative Document and a
specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have
received (with sufficient copies for WestLB and each Bank), on or before the
Date of Issuance, the following, in form and substance satisfactory to the
Agent, WestLB and each Bank:
(i) copies of the resolutions of the Board of Directors
of the Company or any duly authorized committee thereof, authorizing the
execution, delivery and performance of this Agreement, certified by the
President, any Vice President, the chief financial officer, the
Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and
true signatures of the officers of the Company authorized to sign this
Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special
counsel to the Company, substantially in the form of Exhibit B-1 attached
hereto, and (b) William O. Bonin, special Louisiana counsel to the
Company, substantially in the form of Exhibit B-2 attached hereto, in
each case dated the Date of Issuance, addressed to WestLB, the Agent and
the Banks;
(iv) a copy of the Reoffering Supplement which includes,
as an attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of
the Company, certified as of a recent date by the Secretary of State of
the State of Louisiana, together with a certificate of good standing for
the Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably
satisfactory to the Agent, indicating the consent by the Process Agent to
its appointment by the Company as its agent to receive service of process
as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of
the Date of Issuance by the President, any Vice President, the chief
financial officer, the Secretary-Treasurer or an Assistant Secretary of
the Company;
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(viii) an opinion (or a signed copy of such opinion together
with a satisfactory reliance letter) of Foley & Judell L.L.P., Bond
Counsel, dated the Date of Issuance, addressed to WestLB, the Agent and
the Banks and in form and substance satisfactory to WestLB, the Agent and
the Banks, to the effect that the delivery of the Letter of Credit does
not conflict with the laws of the State of Louisiana, is permitted by the
Indenture and the Refunding Agreement, complies with the terms of the
Indenture and the Refunding Agreement and will not adversely affect any
exclusion from gross income for federal income tax purposes of interest
on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance,
substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P
pursuant to Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments,
approvals and opinions as WestLB, the Agent or any Bank or any of their
respective counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The
following statements shall be true and correct on the Date of Issuance and the
Agent shall have received (with sufficient copies for WestLB and each Bank) an
Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving
effect to the execution and delivery of this Agreement and the issuance of
the Letter of Credit, all representations and warranties made by the
Company in Article VI of this Agreement and in each other Operative
Document to which it is a party, and all representations and warranties
otherwise made by the Company in writing in connection herewith or with
any other Operative Document to which it is a party, are true and correct
on and as of the Date of Issuance as though made on and as of such date;
and
(ii) on the Date of Issuance, both before and after giving
effect to the execution and delivery of this Agreement and the issuance of
the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date
of Issuance:
(i) there shall be no order or other restrictions in effect
issued by any court, governmental or regulatory agency or arbitrator
against or directly involving any party to any Operative Document or the
Bonds which prevents such party from performing any of its obligations
under such Operative Document or the Bonds;
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(ii) each Person party to an Operative Document or the Bonds
shall have received all necessary governmental, regulatory and third party
consents and approvals required to be obtained by such Person in order to
consummate the transactions contemplated by the Operative Documents and
the Bonds, including, in the case of the Company and without limitation,
the approval of the Louisiana Public Service Commission in respect of the
transactions contemplated in connection with the issuance of the Bonds and
the consummation of the transactions contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of
Credit, all of the conditions specified in the Other Reimbursement
Agreements for the issuance of the Other Letters of Credit shall have been
satisfied (or waived by the Required Banks (as defined therein)), and the
Other Letters of Credit shall have been issued simultaneously with the
issuance of the Letter of Credit to the beneficiary thereof pursuant to
the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in
the business, operations, condition (financial or otherwise) or prospects
of the Company or of the Company and its Subsidiaries taken as a whole
since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received
all fees set forth or referred to in Article II hereof that shall be due
and payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal
proceedings and all instruments in connection with the transactions
contemplated by this Agreement and the other Operative Documents shall be
satisfactory in form and substance to the Agent, WestLB, the Banks and their
respective counsel, and each of the Agent, WestLB and the Banks shall have
received all information and copies of all documents, including records of
corporate proceedings, governmental approvals, incumbency certificates, and
opinions which any of them may have reasonably requested in connection with the
transactions contemplated by this Agreement and the other Operative Documents,
such documents where appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to
enter into this Agreement, and in order to induce WestLB to issue the Letter of
Credit, the Company makes the following representations and warranties to the
Agent, WestLB and each of the Banks, which representations and warranties shall
survive the execution and delivery of this Agreement and the Letter of Credit,
regardless of any investigation made by or on behalf of the Agent, WestLB or
any of the Banks:
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Section 6.01. Due Organization, Etc. Each of the Company and
its Subsidiaries (i) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorporation and (ii)
has all requisite corporate power and authority to own its property and assets
and to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System or any rules or
regulations of the Louisiana Public Service Commission), order, writ, judgment,
injunction or decree presently in effect having applicability to the Company or
any of its Subsidiaries, (v) except as required by the provisions of the
Refunding Agreement, do not and will not result in or require the creation of
any Lien upon or with respect to any of the properties of the Company or any of
its Subsidiaries and (vi) do not and will not result in the violation of or be
in conflict with or result in a default under or breach or termination of any
term or provision of any mortgage, lease, agreement, indenture, contract,
instrument or other document to or by which the Company or any of its
Subsidiaries is a party or otherwise bound or to which any of the assets or
properties of the Company or any of its Subsidiaries are subject, except any
such violation, conflict, default, breach or termination referred to in this
clause (vi) which, individually or in the aggregate, (a) would not affect the
legality, validity, enforceability or binding effect of the Bonds, this
Agreement or any of the other Operative Documents and (b) would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.03. Due Authorization. No order, authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Company of this Agreement or any of the other Operative
Documents to which it is a party, other than any of the foregoing which shall
have been previously obtained or made by the Company and which are currently in
full force and effect. The Louisiana Public Service Commission has duly issued
its order authorizing the Company to enter into this Agreement and the other
Operative Documents to which it is a party and to take all action contemplated
hereby and thereby or in connection herewith or therewith, and such orders
remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the
other Operative Documents to which the Company is a party constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
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Section 6.05. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries or any of their respective properties or
rights, or involving any of the Operative Documents, before any court,
administrative, governmental or regulatory agency or arbitrator, and there is
no pending or, to the knowledge of the Company, proposed legislative,
regulatory, rule-making, rate-setting or investigatory proceeding before any
federal, state, county or municipal government, department, commission, board
or agency or any other instrumentality of any of them involving or affecting
the Company, any of its Subsidiaries or the Issuer, in any case which (i) alone
or together with others would, if adversely determined, have a material adverse
effect on the business, operations, condition (financial or otherwise) or
prospects of the Company or of the Company and its Subsidiaries taken as a
whole (except that for the purposes of this clause (I) an earnings review or
the commencement by the Company of rate increase proceedings with the Louisiana
Public Service Commission or the Federal Energy Regulatory Commission shall not
constitute such a pending or threatened action or proceeding unless and until
such commission's determination is made thereunder that has such a material
adverse effect) or (ii) questions the legality, validity, enforceability or
binding effect of the Bonds, this Agreement or any other Operative Document or
would impair materially the Company's ability to perform its obligations under
this Agreement or any of the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each
Plan, other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, (i) each such Plan is in substantial compliance with ERISA and the Code;
(ii) no Reportable Event has occurred; (iii) no such Plan has an Unfunded
Current Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within
the meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under
the Code or ERISA on the assets of the Company or any of its Subsidiaries or
any ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries
nor any ERISA Affiliate maintains or contributes to any employee welfare
benefit plan as defined in Section 3(1) of ERISA which provides benefits to
retired employees (other than as required by Section 601 of
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<PAGE> 27
ERISA) the obligations with respect to which could have a material adverse
effect on the ability of the Company to perform any of its obligations under
this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of
its Subsidiaries is in default under or breach of (nor does any circumstance or
occurrence exist which, with the passage of time or the giving of notice or
both, would constitute a default under or breach of) any mortgage, lease,
agreement, indenture, contract, instrument or other document to which it is a
party or to which it or any of its properties may be bound, other than any such
breach or default which would not, individually or in the aggregate, have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.08. Financial Statements. The Company has
furnished, or caused to be furnished, to the Agent, with sufficient copies for
WestLB and each Bank, the following financial statements: (i) the consolidated
balance sheets of the Company and its Subsidiaries as at December 31, 1995 and
December 31, 1996, and the related consolidated statements of income and
changes in shareholders' equity and of cash flows for the fiscal years ended as
of such dates, which, in each case, have been certified by Coopers & Lybrand
L.L.P., independent certified public accountants for the Company; and (ii) the
consolidated balance sheets of the Company and its Subsidiaries as at June 30,
1995 and June 30, 1996, and the related consolidated statements of income and
of cash flows for the six months ended as of such dates, which, in each case,
have been prepared by the Company. Such financial statements (including any
related schedules and/or notes thereto) have been prepared in accordance with
generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as otherwise set forth in the
notes to said financial statements) and reflect all liabilities, direct and
contingent, of the Company and its Subsidiaries required to be shown in
accordance with such principles. Such financial statements fairly present the
consolidated financial condition of the Company as at the dates thereof and the
consolidated results of operations and cash flows for the periods indicated
(subject, as to any interim statements, to normal year end adjustments). There
has been no material adverse change in the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole since December 31, 1996.
Section 6.09. Taxes. Each of the Company and its
Subsidiaries has filed all federal and state income tax returns which are
required to be filed by it, and each has paid all taxes as shown on such
returns and on all assessments received by it except to the extent that such
taxes have not become due and other than taxes the amount or validity of which
are currently being contested in good faith by appropriate proceedings with
respect to which reserves in accordance with general accepted accounting
principles have been provided.
Section 6.10. Disclosure. Intentionally Omitted.
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Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the
Company and its Subsidiaries is in compliance with all applicable statutes,
rules and regulations governing pollution and environmental control, equal
employment opportunity and employee safety in all jurisdictions in which it is
doing business, other than such noncompliances which, individually or in the
aggregate, would not have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole. No Lien in favor of any
governmental authority has been asserted or recorded under any statute, rule or
regulation, governing pollution and environmental control with respect to any
of the assets or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to
WestLB, the Agent and each of the Banks each of the representations and
warranties made by it in each of the other Operative Documents to which it is a
party to the same extent as if the same were set forth at length herein. There
is no default by the Company or, to the knowledge of the Company, by any other
Person under any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally
engaged in, nor does it have as one of its principal activities, the business
of extending credit for the purpose of purchasing or carrying any "margin
stock" (as such term is defined in Regulation U of the Board of Governors of
the Federal Reserve System). None of the proceeds of the Bonds or of any
drawing under the Letter of Credit will be used, directly or indirectly, to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an
"investment company", as defined in the Investment Company Act of 1940, as
amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of
Issuance until such time as the Letter of Credit is no longer outstanding and
all Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject
to Section 8.01 hereof, the Company will, and will cause each of its
Subsidiaries to, (i) preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation and (ii)
qualify and remain qualified as a foreign
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corporation in good standing in each jurisdiction where the operation of its
businesses or the ownership of its assets requires such qualification;
provided, however, that the Company and its Subsidiaries will not be required
to preserve any such right, franchise, privilege or qualification if the
Company or any such Subsidiary determines that the preservation thereof is no
longer desirable or, in the case of qualification, required, and determines
that the loss of such rights, franchises, privileges or qualifications will not
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
Section 7.02. Compliance with Law; Environmental and Other
Matters. The Company will, and will cause each of its Subsidiaries to, comply
with the requirements of all applicable laws, rules, regulations and orders of
any governmental authority having jurisdiction over it (including, without
limitation, ERISA and the statutes, rules and regulations thereunder and all
statutes, rules and regulations governing pollution and environmental control,
equal employment opportunity and employee safety), except for such
noncompliances which, individually or in the aggregate, would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 7.03. Performance of Agreements. The Company will,
and will cause each of its Subsidiaries to, observe and perform (i) with
respect to the Company, all of its obligations under this Agreement and the
other Operative Documents to which it is a party and (ii) with respect to the
Company and its Subsidiaries, all of their respective obligations under each
mortgage, lease, agreement, indenture, contract, instrument or other document
to which it is or may become a party or by which it is or may become bound,
except such non-observance or non-performance which would not, individually or
in the aggregate, have a material adverse effect on the business, operations,
condition (financial or otherwise) or prospects of the Company or of the
Company and its Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will,
and will cause each of its Subsidiaries to, maintain insurance with responsible
and reputable insurance companies in such amounts, with such deductibles and
covering such risks as is usually maintained by companies conducting similar
businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will,
for itself and on behalf of each of its Subsidiaries, furnish to the Agent,
WestLB and each Bank the following: (i) immediately following the occurrence
of any Default or Event of Default, an Officer's Certificate setting forth
details of such Default or Event of Default, the period of existence thereof
and the action proposed to be taken by the Company or such Subsidiary with
respect thereto and (ii) such other information respecting the business,
operations, condition (financial or otherwise) or prospects of the Company or
any of its Subsidiaries as WestLB, the Agent or any Bank may from time to time
reasonably request.
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Section 7.06. ERISA. The Company will, and will cause each
of its Subsidiaries and ERISA Affiliates to, as soon as possible and in any
event within ten days after the Company or any of its Subsidiaries or ERISA
Affiliates knows of the occurrence of any of the following, deliver to the
Agent, with sufficient copies for WestLB and each Bank, a certificate of the
chief financial officer of the Company, setting forth details as to such
occurrence and the action, if any, which the Company, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Company, such
Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto: (i) the occurrence of a Reportable Event;
(ii) the existence of an accumulated funding deficiency; (iii) the making of an
application to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
extension of any amortization period under Section 412 of the Code with respect
to a Plan; (iv) the termination, reorganization, partition or declaration of
insolvency under Title IV of ERISA of a Plan; (v) the existence of an Unfunded
Current Liability with respect to a Plan which has resulted in a lien being
imposed under ERISA or the Code with respect to the Company or any of its
Subsidiaries or ERISA Affiliates; (vi) the institution of proceedings to
terminate a Plan; (vii) the institution of a proceeding pursuant to Section 515
of ERISA to collect delinquent contributions from the Company or any of its
Subsidiaries or ERISA Affiliates; or (viii) the incurrence of any liability
(including any contingent or secondary liability) by the Company or any of its
Subsidiaries or ERISA Affiliates to or on account of the termination or
withdrawal from a Plan under Sections 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA; provided, however, that, with respect to any person (as defined in
Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or 414(o) of the Code, the Company need only use its best
efforts to cause such person to deliver such certificate and notices. The
Company will deliver and, with respect to any person (as defined in Section
3(9) of ERISA) that is an ERISA Affiliate only within the meaning of Section
414(m) or 414(o), will use its best efforts to obtain and deliver, to the
Agent, with sufficient copies for WestLB and each Bank, a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. Copies of annual reports and any notices received by the
Company, any of its Subsidiaries or any ERISA Affiliates with respect to any
Plan shall be delivered to the Agent no later than ten days after the later of
the date such report or notice has been filed with the Internal Revenue Service
or received by the Company, such Subsidiary or such ERISA Affiliate; provided,
however, that, with respect to any person (as defined in Section 3(9) of ERISA)
that is an ERISA Affiliate only within the meaning of Section 414(m) or Section
414(o) of the Code, the Company need only use its best efforts to obtain such
report or notice.
Section 7.07. Financial Statements. The Company will
deliver, or cause to be delivered, to the Agent, with sufficient copies for
WestLB and each Bank, in each case in duplicate: (i) as soon as available and
in any event within 60 days after the end of each fiscal quarterly period in
each fiscal year of the Company, a consolidated balance sheet of the Company
and the related consolidated statements of income and cash flows of the Company
for such period and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarterly period, setting forth in each
case
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in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as
available and in any event within 120 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of
its Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative
Document, (v) promptly, and in any event within ten (10) days after an officer
of the Company obtains knowledge thereof, notice of any event not otherwise
specified in clause (iv) above which, individually or in the aggregate, would
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole, (vi) promptly after the sending or filing
thereof, copies of all reports and registration statements (including without
limitation Forms 10-K and 10Q) which the Company sends to any of its security
holders or which the Company or any of its Subsidiaries files with Securities
and Exchange Commission or any national securities exchange, (vii) promptly
upon the written request of the Agent, WestLB or any Bank, copies of any
report, application, petition or other similar document which the Company or
any of its Subsidiaries sends to or files with the Federal Energy Regulatory
Commission or the Louisiana Public Service Commission, and (viii) such other
financial information as the Agent, WestLB or any Bank may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company shall deliver to the Agent, with sufficient copies for
WestLB and each Bank, (a) an Officer's Certificate stating that there exists no
Default or Event of Default or, if any such Default or Event of Default exists,
stating the nature thereof, the period of existence thereof and what action the
Company proposes to take with respect thereto and (b) a certificate prepared
and certified by the chief financial officer of chief accounting officer of the
Company setting forth the calculations required to establish whether the
Company is in compliance with the provisions of Sections 8.05 and 8.06 hereof
at the end of such fiscal quarter or fiscal year, as the case may be. The
Agent, WestLB and the Banks are hereby authorized to
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deliver a copy of any financial statement or other document delivered to them
pursuant to this Section 7.07 to any regulatory body having jurisdiction over
them and to any prospective Participant in their interest herein or in the
Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause
each of its Subsidiaries to, permit officers and designated representatives of
the Agent, WestLB or any Bank to visit and inspect, at such Person's own
expense, any of the properties of the Company or any of its Subsidiaries, to
examine the corporate books and financial records of such entities and make
copies thereof or extracts therefrom, and to discuss the affairs, finances and
accounts of any of such entities with the principal officers and the internal
and independent accountants of such entities, all upon reasonable prior notice
and during regular business hours and as often as the Agent, WestLB or such
Bank may reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and
will cause each of its Subsidiaries to, pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, and all lawful
claims which, if unpaid, would become a Lien upon any of its properties, in
each case at such time as such taxes, assessments, governmental charges, levies
or claims shall become due and payable; provided, however, that neither the
Company nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
appropriate proceedings and as to which appropriate reserves are being
maintained in accordance with generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and
will cause each of its Subsidiaries to, keep all property that is useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted.
Section 7.11. Certain Notices. The Company will furnish to
the Agent, with sufficient copies for WestLB and each Bank, a copy of any
notice, certification, demand or other writing or communication given or
received by the Company under or in connection with the Bonds or any of the
other Operative Documents, in each case promptly after the receipt or giving of
the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of
Issuance and until such time as the Letter of Credit is no longer outstanding
and all Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc.
The Company will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation,
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or convey, sell, lease or otherwise dispose of, whether in a single transaction
or a series of related transactions, more than 5% of the consolidated total
assets of the Company and its Subsidiaries as of the date of any such
conveyance, sale, lease or other disposition, to any Person, or agree to do any
of the foregoing at any future time; provided, however, that nothing contained
in this Section 8.01 shall prohibit (i) a consolidation or merger of two or
more Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries
with or into the Company, if the Company is the surviving corporation, (iii) a
consolidation or merger of another Person into the Company or a Subsidiary if
the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale,
lease or other disposition of assets of a Subsidiary to the Company or another
Subsidiary, (v) the sale or other disposition of any Subsidiary in which the
Company has made no capital investment (either by cash contribution,
contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary
of its accounts receivable or other receivables or sales of undivided interests
in such accounts receivable and other receivables or (vii) the sale or other
disposition of pollution control facilities in connection with the issuance by
a governmental entity of pollution control bonds substantially all of the
proceeds of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of
Interest Rate Periods. The Company will not, without the prior consent of the
Required Banks, such consent not to be unreasonably withheld, (i) take any
action to cause a redemption of any of the Bonds, (ii) take any action to cause
the Interest Rate Period (as defined in the Indenture) in respect of the Bonds
to be adjusted or otherwise changed to a Short Term Interest Rate Period or a
Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any
affirmative action to purchase, or to permit any of its Subsidiaries to
purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company
will not, without the prior written consent of the Required Banks, terminate or
amend or consent to the termination or amendment of any of the terms or
provisions of the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon or with respect to any property or assets (real or personal, tangible
or intangible) of the Company or any of its Subsidiaries, whether now owned or
hereafter acquired, provided, however, that the provisions of this Section 8.04
shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04
of the CLECO Mortgage as presently in effect: (a) liens for taxes,
assessments or governmental charges not then delinquent; (b) the lien of
taxes, assessments or governmental charges due, or to become due, the
validity of which is being contested at the time by the Company in good
faith and, if necessary, by appropriate legal proceedings, provided that
the Company shall have made such provision as may be
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required by the trustee under the CLECO Mortgage for the payment of any
amount or the giving of such security as shall be required to prevent the
loss or forfeiture of any of the mortgaged and pledged property, and for
the payment of the amount of any such taxes, assessments or governmental
charges as shall ultimately be determined to be due and payable; (c) any
liens, the Indebtedness secured by which has not been assumed by the
Company and on which it does not customarily pay interest charges,
existing upon real estate or rights in or relating to real estate acquired
by the Company for substation, transmission lines, distribution lines,
pipelines, water mains, or right-of-way purposes or for storeroom or
service buildings incidental to any of the foregoing; (d) rights reserved
to or vested in any municipality or public authority by the terms of any
right, power, franchise, grant, license, permit or by any provision of law
to terminate such right, power, franchise, grant, license or permit or to
purchase, condemn or recapture or to designate a purchaser of any of the
property of the Company; (e) leases, easements, restrictions, exceptions
or reservations in any property of the Company created at or before the
acquisition thereof by the Company for the purpose of roads, water mains,
pipe lines, transmission lines, distribution lines or for the joint or
common use of real property and equipment and other like purposes, and
other minor defects and irregularities of title in any property, in any
case which do not materially impair the use of such property in the
operation of the business of the Company or which the Company itself has
power to cure by appropriate legal proceedings; (f) rights reserved to or
vested in any municipality or public authority to use or control or
regulate any property of the Company; (g) any obligations or duties
affecting the property of the Company to any municipality or public
authority with respect to any franchise, grant, license or permit; (h)
undetermined liens and charges incidental to construction, except such as
may result from any delinquent obligation of the Company for the payment
of money on account of such construction; (i) funded liens; or (j)
obligations arising under agreements or otherwise relating to the
ownership by the Company of an undivided interest in real or personal
property;
(iii) Liens on any property acquired, constructed or
improved by the Company or any of its Subsidiaries after the date of this
Agreement which are created or assumed contemporaneously with, or within
120 days after, such acquisition or completion of such construction or
improvement, or within six months thereafter pursuant to a firm commitment
for financing arranged with a lender or investor within such 120-day
period, to secure or provide for the payment of all or any part of the
purchase price of such property or the cost of such construction or
improvement incurred after the date of this Agreement, or, in addition to
Liens contemplated by clauses (iv) and (v) below, Liens on any property
existing at the time of acquisition thereof, provided that the Liens shall
not apply to any property theretofore owned by the Company or any of its
Subsidiaries other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which the
property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a
corporation which is merged with or into or consolidated
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with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary of the Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the
Company or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any
state, any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any Indebtedness incurred for the purpose of financing all or
any part of the purchase price of the cost of constructing or improving
the property subject to such Liens, including, without limitation, Liens
to secure pollution control or industrial revenue bond type Indebtedness;
(viii) Liens to secure sales by the Company or any of its
Subsidiaries of accounts receivable or other receivables or sales of
undivided interests in such accounts receivable and other receivables
provided that such liens apply only to the accounts receivable sold and
related security;
(ix) Liens on any property (including any natural gas, oil
or other mineral property) to secure all or part of the cost of
exploration, drilling or development thereof or to secure Indebtedness
incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set
forth on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the
ordinary course of business to secure obligations under worker's
compensation laws or similar legislation, including liens of judgments
thereunder which are not currently dischargeable, (b) deposits in the
ordinary course of business to secure, or in lieu of, surety, appeal, or
customs bonds to which the Company is a party, (c) Liens created by or
resulting from any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings diligently conducted,
(d) pledges or deposits in the ordinary course of business to secure
performance in connection with bids, tenders or contracts (other than
contracts for the payment of money) or (e) materialmen's, mechanics',
carriers', worker's, repairmen's or other like liens incurred in the
ordinary course of business for sums not yet due or currently being
contested in good faith by appropriate proceedings diligently conducted,
or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Indebtedness secured by any
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Lien referred to in the foregoing clauses (i) to (xi), inclusive, or this
clause (xii); provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement plus the
amount of any redemption or repurchase premiums incurred in retiring such
Indebtedness, and that such extension, renewal or replacement shall be
limited to all or a part of the property or indebtedness which secured the
Lien so extended, renewed or replaced (plus improvements on such
property); and
(xiii) Liens not otherwise permitted by foregoing clauses
(i) to (xii), inclusive, to the extent such Liens encumber, in the
aggregate, no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not
permit the ratio of EBITDA to Consolidated Interest Expense at any time
(determined in each instance using the most recently completed 12-month period
for which the relevant financial information is available) to be less than 2.00
to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will
not, at any time, permit Consolidated Tangible Net Worth to be less than 35% of
Total Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following
events (each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in
this Agreement or in any of the other Operative Documents or in any
writing furnished in connection with or pursuant to this Agreement or any
other Operative Document shall be false or incomplete in any material
respect when made or deemed made; or
(ii) the Company shall fail to make any payment required to
be made by it when due hereunder (including, without limitation, pursuant
to Article II or Article III hereof) or under any or the Operative
Documents; or
(iii) the occurrence of an "event of default" as described
and defined in the Indenture or the Refunding Agreement; or
(iv) the occurrence of an "event of default" as described
and defined in either of the Other Reimbursement Agreements; or
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(v) the Company shall fail to perform or observe any of the
terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any of the
Operative Documents on its part to be performed or observed and (a) with
respect to any such term, covenant or agreement contained herein, any such
failure remains unremedied for 30 days, and (b) with respect to any such
term, covenant or agreement contained in any of the other Operative
Documents, any such failure remains unremedied after any applicable grace
period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or
any other Operative Document shall at any time for any reason cease to be
valid and binding on any party hereto or thereto (other than the Agent,
WestLB or any Bank), or shall be declared to be null and void, or any such
party (other than the Agent, WestLB or any Bank) shall contest the
validity or enforceability thereof, or the Company shall deny that it has
any further liability or obligation with respect to the Bonds, this
Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in
any payment of principal of or premium, if any, or interest on any
Indebtedness of the Company or such Subsidiary (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) having
an original aggregate principal amount in excess of $5,000,000, and such
default shall continue beyond any period of grace provided with respect
thereto, or the Company or any of its Subsidiaries shall default in the
performance or observance of any other agreement, term or condition
contained in any agreement under which any such Indebtedness is created
(or if any other event of default thereunder or under such agreement shall
occur and be continuing) and the effect of any such default is to cause,
or as a result thereof the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) shall have caused or shall be
entitled to cause, such obligation to become due prior to the stated
maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law commences a voluntary case,
admits in writing its inability to pay its debts generally as they become
due, consents to the appointment of a Custodian of it or for all or
substantially all of its property or makes a general assignment for the
benefit of its creditors; or has an involuntary case filed against it, or
a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that is for relief against the Company or any of its
Subsidiaries in an involuntary case, appoints a Custodian of the Company
or any of its Subsidiaries for all or substantially all of its property or
orders the liquidation of the Company or any of its Subsidiaries, and such
involuntary case, order or decree remains unstayed and in effect for more
than 60 days; or
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(x) with respect to any Plan, other than a multiemployer
plan within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan
shall fail to satisfy the minimum funding standard or a waiver of such
standard or extension of any amortization period is sought under Section
412 of the Code; (b) such Plan is or is proposed to be terminated and as a
result thereof liability in excess of $5,000,000 can be asserted under
Title IV of ERISA as against the Company or any Subsidiary; (c) such Plan
shall have an Unfunded Current Liability in excess of $5,000,000; or (d)
there has been a withdrawal from any such Plan and as a result liability
in excess of $5,000,000 can be asserted under Section 4062(e) or 4063 of
ERISA against the Company or any Subsidiary; or, with respect to any Plan
that is a multiemployer plan under Section 4001(a)(3) of ERISA, such Plan
is insolvent or in reorganization or the Company or any ERISA Affiliate
has withdrawn, or proposes to withdraw, either totally or partially, from
such Plan and, in any case, in the opinion of the Required Banks, the
Company or any Subsidiary might reasonably be anticipated to incur a
liability which would have a material adverse effect on the business,
operations, conditions (financial or otherwise) or prospects of the
Company or the Company and Subsidiaries taken as a whole; or
(xi) one or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries involving in the aggregate
a liability (not covered by insurance) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, satisfied,
discharged or stayed or bonded pending appeal within 30 days from the
entry thereof;
then, and in any such event, the Agent may and, upon the written request of the
Required Banks, shall, without prejudice to the rights of the Agent, WestLB or
any Bank, (i) by notice to the Company, declare all amounts payable by the
Company hereunder (including, without limitation, all amounts payable pursuant
to Article II and Article III hereof) to be forthwith due and payable, and the
same shall thereupon become due and payable without demand, presentment,
protest or further notice of any kind, all of which are hereby expressly
waived, and/or (2) with respect to any undrawn amount under the Letter of
Credit, require that the Company place with the Agent a collateral deposit
which shall be, in the opinion of Bond counsel chosen by the Company and
acceptable to the Agent, invested by the Agent in a manner which does not
violate Section 148 of the Code, to secure repayment to the Banks by the
Company of any drawings under the Letter of Credit and/or (3) exercise any or
all of its rights and remedies under the Operative Documents and/or (4) by
notice to the Trustee, require the Trustee to accelerate payment of all of the
Bonds and interest accrued thereon as provided in Section 9.01 of the
Indenture; provided that if an Event of Default described in clause (ix) of
this Section 9.01 shall occur and be continuing, all amounts payable by the
Company hereunder shall become immediately due and payable, without written
notice and without presentment, protest or any other notice of any kind, all of
which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein
conferred or reserved is intended to be exclusive of any other available
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remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Agreement or under
any of the other Operative Documents, whether now or hereafter existing at law
or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default, omission or failure of performance hereunder
shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to time and as
often as may be deemed expedient. In order to exercise any remedy reserved to
the Agent, WestLB or any Bank in this Agreement, it shall not be necessary to
give any notice, other than such notice as may be herein expressly required or
required by applicable law. In the event any provision contained in this
Agreement should be breached by any party and thereafter duly waived by the
other party or parties so empowered to act, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder. No waiver, amendment, release or modification or this Agreement
shall be established by conduct, custom or course of dealing, but solely by an
instrument in writing duly executed by the party or parties thereto duly
authorized by this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate
Westdeutsche Landesbank Girozentrale, New York Branch, as agent to act as
specified herein and in the other Operative Documents. Each Bank hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement, the other Operative Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may perform any
of its duties hereunder by or through its officers, directors, agents or
employees.
Section 10.02. Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. Neither
the Agent nor any of its officers, directors, agents or employees shall be
liable for any action taken or omitted by it or them hereunder or under any
other Operative Document or in connection herewith or therewith, unless caused
by its or their gross negligence or willful misconduct as determined by a
final, non-appealable order of a court of competent jurisdiction. The duties
of the Agent shall be mechanical and administrative in nature, and the Agent
shall not have by reason of this Agreement or any other Operative Document a
fiduciary relationship in respect of any Bank. Nothing in this Agreement or
any other Operative Document, expressed or implied, is intended to or shall be
so construed as to impose upon the Agent any obligations in respect of this
Agreement or any other Operative Document except as expressly set forth herein.
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<PAGE> 40
Section 10.03. Investigation by Banks. Independently and
without reliance upon the Agent, each Bank, to the extent it deems appropriate,
has made and shall continue to make (i) its own independent investigation of
the financial condition and affairs of the Company and the transactions
contemplated herein, in each case in connection with the making and the
continuance of the LC Commitments and the Advances and the taking or not taking
of any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Company and the transactions referred to in clause (i)
above and, except as expressly provided in this Agreement, the Agent shall have
no duty or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect thereto,
whether coming into its possession before the effectiveness of this Agreement
or at any time or times thereafter. The Agent shall not be responsible to any
Bank for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Operative Document or the financial condition of the
Company or any other Person or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Operative Document, or the financial
condition of the Company or any other Person or the existence or possible
existence of any Default or Event of Default.
Section 10.04. Instructions. If the Agent shall request
instructions from WestLB, the Banks or the Required Banks, as applicable, with
respect to any act or action (including failure to act) in connection with the
Letter of Credit, this Agreement or any other Operative Document, the Agent
shall be entitled to refrain from such act or taking such action unless and
until the Agent shall have received instructions from WestLB, the Banks or the
Required Banks, as applicable, and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Bank
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder or under any other Operative
Document in accordance with the instructions of WestLB, the Banks or the
Required Banks, as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that the Agent believed to be the
proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Operative Document and its duties hereunder and
thereunder, upon advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is
not reimbursed and indemnified by the Company, the Banks will reimburse and
indemnify the Agent, in proportion to their respective LC Commitments (or, if
the Letter of Credit is no longer outstanding, in proportion to their
respective LC Commitments
36
<PAGE> 41
immediately prior to the expiration or other termination of the Letter of
Credit), for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Agent in performing its duties hereunder or under any other
Operative Document, or in any way relating to or arising out of this Agreement
or any other Operative Document; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the
rights and powers specified herein for a "Bank" and may exercise the same
rights and powers as though it were not performing the duties specified herein,
and the term "Banks", "Required Banks" or any similar terms shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity. The Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Company or any
Subsidiary or Affiliate of the Company to the same extent as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Company or any such Subsidiary or Affiliate for services
in connection with this Agreement and otherwise without having to account for
the same to any of the Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Operative Documents at any time by giving 15 Business Days'
prior written notice to the Company and the Banks. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to clauses (ii) and
(iii) below or as otherwise provided below.
(ii) Upon any such notice of resignation, the Required
Banks shall appoint a successor Agent hereunder or thereunder which shall be a
commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed
within such 15 Business Day period, the Agent may then appoint a successor
Agent who shall serve as Agent hereunder or thereunder until such time, if any,
as the Required Banks appoint a successor Agent as provided above.
(iv) If no successor Agent has been appointed pursuant to
clause (ii) or (iii) above by the 20th Business Day after the date such notice
of resignation was given by the Agent, the Agent's resignation shall become
effective and the Banks shall thereafter perform all the duties of the Agent
hereunder and/or under any other Operative Document until such time, if any, as
the Required Banks appoint a successor Agent as provided above.
37
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be
amended, and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company
shall obtain the written consent of the Required Banks, provided that without
the consent of each Bank no such action or omission shall (i) extend the
Termination Date of the Letter of Credit or the final maturity of any Advance,
or reduce the rate or extend the time of payment of interest on any Advance, or
reduce the principal amount of any Advance, or reduce the rate or extend the
time of payment of any fees payable for the benefit of the Banks, or increase
the LC Commitment of any Bank (it being understood that a waiver of any Event
of Default shall not constitute a change in the terms of any LC Commitment of
any Bank, and it being further understood that the LC Commitment of each Bank
may be automatically adjusted pursuant to Section 2.02 hereof), (ii) amend,
modify or waive any provision of this Section 11.01 or Sections 3.05, 3.06,
10.06, 11.03, 11.05, 11.07 or 11.16, (iii) reduce the percentage specified in
the definition of Required Banks, or (iv) consent to the assignment or transfer
by the Company of any of its rights and obligations under this Agreement or any
other Operative Document to which it is a party; provided that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Banks required above to take such action, affect the rights or duties of
the Agent under this Agreement; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by WestLB in addition to
the Banks required above to take such action, affect the rights or duties of
WestLB under this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue
of the Americas, New York, New York 10036, Attention: Loan Operations,
telecopy number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of
Credit, or to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank
hereunder, to it at the offices of Westdeutsche Landesbank Girozentrale, New
York Branch, 1211 Avenue of the Americas, New York, New York 10036, Attention:
Trade Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other
than Westdeutsche Landesbank Girozentrale, New York Branch), to it at its
address and telecopy number set forth opposite its signature below; or as to
any party at such other address or telecopy number as shall be designated by
such party in a written notice to all other parties hereto; provided that any
such communication to the Company may also, at the option of the Person
delivering such communication, be either delivered to the Company at its
address set forth above or to any officer of the Company. All such notices and
other communications shall be effective when received.
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Section 11.03. Set-off. In addition to any rights now or
hereafter granted under applicable law (including, but not limited to, Section
151 of the New York Debtor and Creditor Law) and not by way of limitation of
any such rights, during the continuance of any Event of Default hereunder each
Bank is hereby authorized at any time and from time to time, without notice to
the Company or to any other Person, any such notice being hereby expressly
waived, to set-off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by WestLB or
such Bank to or for the credit or the account of the Company against and on
account of any Obligation or liability of the Company owing to SBC or the Banks
under this Agreement and/or the Letter of Credit at the time, including,
without limitation, all claims of any nature or description arising out of or
in connection with this Agreement and/or the Letter of Credit, irrespective of
whether or not the Agent, WestLB or any Bank shall have made any demand
hereunder.
Section 11.04. Indemnification. The Company hereby agrees to
protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including without limitation reasonable attorneys' fees)
which such indemnified Person may incur or be subject to as a consequence,
direct or indirect, of (i) the execution and delivery of this Agreement or the
issuance of the Letter of Credit, other than as a result of the gross
negligence or willful misconduct of such indemnified Person, (ii) the failure
of WestLB to honor a drawing under the Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto government or governmental authority (all such acts or omission herein
called "Government Acts"), (iii) any breach by the Company, the Issuer, the
Tender Agent, the Remarketing Agent or any other Person of any warranty,
covenant, term or condition in, or the occurrence of any default under, this
Agreement, any other Operative Document or the Bonds, together with all
reasonable expenses resulting from the compromise or defense of any claims or
liabilities arising as a result of any such breach or default, (iv) any
inaccuracy or alleged inaccuracy, or any untrue statement or alleged untrue
statement, contained in the Preliminary Official Statement or the Reoffering
Supplement, which includes, as an attachment thereto, the Official Statement,
or by reason of the omission or alleged omission to state therein any fact
necessary to make such statements, in light of the circumstances under which
they were made, not misleading (provided that this Section 11.04 shall not
apply to any information contained in the Reoffering Supplement under the
caption "WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH" or in the
Preliminary Official Statement or the Official Statement under the caption
"SWISS BANK CORPORATION, NEW YORK BRANCH") and (v) the defense against any
legal action challenging the validity of any of the above referenced agreements
or instruments. Nothing in this Section 11.04 is intended to limit the
reimbursement or other obligations hereunder of the Company. The obligations
of the Company under this Section 11.04 shall survive the payment of the Bonds
and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a
continuing obligation and shall (i) be binding upon the Company and
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<PAGE> 44
its successors and assigns and (ii) inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns;
provided, however, that the Company may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of WestLB and
all of the Banks, and, provided further, that, although any Bank may grant
participations in its rights hereunder and under the Letter of Credit, such
Bank shall remain a "Bank" for all purposes hereunder, the Participant shall
not constitute a "Bank" hereunder, the Company shall continue to deal solely
with the Agent and such Bank (and not with any Participant) hereunder and with
respect to this Agreement and the Letter of Credit and no such participation
shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall
not have any rights under this Agreement or any of the other Operative
Documents (the Participant's rights against such transferring Bank to be those
set forth in the agreement executed by such Bank in favor of the Participant
relating thereto) and all amounts payable by the Company hereunder shall be
determined as if such Bank had not sold such participation, except that the
Participant shall be entitled to the benefits of Sections 2.09 and 2.10 hereof
as set forth therein. In connection with any such participation, the Bank
proposing to transfer or grant such participation may disclose to the proposed
Participant any information that the Company is required to deliver to such
Bank pursuant to this Agreement or otherwise delivers to such Bank in
connection with such Bank's credit review or continuing review of the Company
and this Agreement, provided, however, that, prior to any such disclosure, each
such Participant shall agree in writing to preserve the confidentiality of any
confidential information relating to the Company or any of its Subsidiaries
received from such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC
Commitment or any Advance of such Bank to another Bank or to another branch or
lending office or, with the written consent of WestLB and the Agent (such
consent not to be unreasonably withheld), an Affiliate of such Bank; provided
that each such Bank agrees that it will use its reasonable efforts (subject to
overall policy considerations of such Bank) to avoid the occurrence of any
event giving rise to the operation of Sections 2.09 and 2.10 hereof as a result
of any such transfer.
Neither WestLB nor any Bank may assign all or any portion of
its rights and obligations hereunder to one or more banks or other financial
institutions, unless (i) WestLB and the Company each shall have given its prior
written consent to such assignment (such consent not to be unreasonably
withheld) and (ii) such assignment shall be consummated pursuant to an
assignment and acceptance agreement reasonably satisfactory to the Agent (such
agreement to state, among other things, that upon the effectiveness of such
assignment, the transferee entity shall become a "Bank" hereunder for all
purposes of this Agreement). Upon the effectiveness of any such assignment,
the transferee entity shall become a "Bank" hereunder for all purposes of this
Agreement and Schedule I attached hereto shall be amended by the Agent to
reflect the new LC Percentage of each Bank after giving effect to such
assignment (which amended Schedule I shall be promptly delivered by the Agent
to the Company, WestLB and each Bank, provided that the failure to deliver or
prepare such amended
40
<PAGE> 45
Schedule I shall in no event affect the validity of such assignment or the
respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all
risks of the acts or omissions of the Trustee and any transferee of the Letter
of Credit with respect to its use of the Letter of Credit. Neither the Agent,
WestLB nor Bank, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Trustee or any transferee of the
Letter of Credit in connection therewith; (ii) the form, validity, sufficiency
or genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (iii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign the
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iv) failure of the Trustee to comply fully with the conditions required in
order to draw upon the Letter of Credit; (v) errors, omission, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegram,
telex or otherwise, whether or not they be in cipher; (vi) errors in
interpretation of technical terms; (vii) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under the
Letter of Credit or of the proceeds thereof; (viii) any misapplication by the
Trustee of the proceeds of any drawing under the Letter of Credit; or (ix) any
consequences arising from causes beyond the control of the Agent, WestLB or any
Bank, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of any of the Agent's, WestLB's or
any Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent, WestLB or any Bank under or in connection with this Agreement or the
Letter of Credit or the related certificates attached thereto, if taken or
omitted in good faith, shall not put the Agent, WestLB or any Bank under any
resulting liability to the Company, and the Agent, WestLB and each Bank may
accept any documents or instruments that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
any information to the contrary.
The obligations of the Company under this Section 11.06 shall
survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
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Section 11.07. Expenses, Etc. The Company agrees to pay on
demand (i) all costs and out-of-pocket expenses incurred by WestLB or the Agent
in connection with the preparation, execution, issuance, delivery and
administration of this Agreement, the Letter of Credit and the other Operative
Documents, including, without limitation, the reasonable fees and disbursements
of outside counsel and the allocated time charges and disbursements of internal
counsel for the Agent and WestLB, and of counsel for the Banks with respect
thereto, and (ii) all costs and out-of-pocket expenses, including, without
limitation, the reasonable fees and disbursements of outside counsel and the
allocated time charges and disbursements of internal counsel to the Agent,
WestLB and the Banks with respect thereto, in connection with the enforcement
or preservation of any rights under this Agreement, the Letter of Credit or any
other Operative Document or any modifications, amendments, consents or waivers
or similar occurrences relating to or in respect of this Agreement, the Letter
of Credit or any other Operative Document. In addition, the Company shall pay
any and all stamp and other taxes (other than any franchise or income taxes)
and fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, the Letter of Credit or any
other Operative Document and agrees to save the Agent, WestLB and the Banks
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes, fees and expenses
referred to in this sentence and in the immediately preceding sentence. The
Company also agrees to indemnify, defend and hold the Agent, WestLB and each
Bank harmless from and against all liability "including, without limitation,
interest, penalties and all reasonable fees and disbursements of counsel) to
which any such Person may become subject insofar as such liability arises out
of or is based upon any action, suit, proceeding or investigation or
governmental action brought or taken in connection with the Project or the use
(or the proposed or potential use) of the proceeds of any drawing under the
Letter of Credit. A request for payment under this Section 11.07 shall be
accompanied by supporting documentation thereof, identifying with reasonable
specificity the basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and
it shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company
irrevocably (i) agrees that any suit, action or other legal proceeding arising
out of or relating to this Agreement or the Letter of Credit may be brought by
or on behalf of the Agent, WestLB or any Bank in a court of record in the State
of New York or in the Courts of the United States of America located in such
State, (ii) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (iii) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts
and any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. The Company hereby irrevocably appoints CT Corporation
System (the "Process Agent") with an office on the date hereof at 1633
Broadway, New York, New York 10019 as its agent to receive on behalf of the
Company and its property service of copies of the summons and complaint and any
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other process which may be served in any such suit, action or proceeding. Such
service may be made by mailing or delivering a copy of such process to the
Company, in care of the Process Agent at the Process Agent's above address, and
the Company hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. The Agent agrees to mail to the Company at
its address provided in Section 11.02 hereof a copy of any summons, complaint
or other process mailed or delivered by it to the Company in care of the
Process Agent. As an alternate method of service, the Company also irrevocably
consents to the service of any and all process in any such suit, action or
proceeding by mailing of copies of such process to the Company at its address
provided in Section 11.02 hereof. The Company agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Section 11.09 shall affect the right of the Agent,
WestLB or any Bank to serve legal process in any other manner permitted by law
or affect the right of the Agent, WestLB or any Bank to bring any suit, action
or proceeding against the Company or its property in the courts of any other
jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID
STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of
contents and the cover page of this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
Section 11.12. Survival of Representations and Warranties.
All representations and warranties contained herein or in any other Operative
Document or made in writing by the Company in connection herewith or therewith
shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set
forth herein including, without limitation, in Sections 2.09, 2.10, 10.06,
11.04 and 11.07 shall survive the execution and delivery of this Agreement and
the repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any
agreement, certificate or other writing, or any action taken or to be taken, is
by the terms of this Agreement required to be satisfactory to the Agent, WestLB
or any Bank, the determination of such satisfaction shall be made by the Agent,
WestLB or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the
conditions specified in Article V hereof, each of the Banks shall be deemed to
have consented to, approved or accepted or to be satisfied with all matters
required
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there under to be consented to or acceptable or satisfactory to the Banks
unless an officer of the Agent responsible for the transactions contemplated by
this Agreement and holding the position of Vice President or a more senior
position shall have received notice from any such Bank prior to the issuance of
the Letter of Credit specifying such Bank's objections thereto and such
objections shall not have been withdrawn by notice to the Agent to that
effect.
Section 11.15. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States in conformity with those
used in the preparation of the financial statements of the Company referred to
in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be
furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto). All calculations and computations required to
determine compliance with Sections 8.05 and 8.06 hereof shall utilize
accounting principals and policies in conformity with those used to prepare the
financial statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective officers
"hereunto duly authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN
----------------------------
Name: Thomas J. Howlin
Title: Sr. V.P. - Finance and CFO
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN
----------------------------
Name: Cynthia M. Niesen
Title: Managing Director
By /s/ KAREN E. GAREIS
----------------------------
Name: Karen E. Gareis
Title: Vice President
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WACHOVIA BANK N.A.
By /s/ DAVID K. ALEXANDER
----------------------------
Name: David K. Alexander
Title: Senior Vice President
45
<PAGE> 1
EXHIBIT 10(k)
REIMBURSEMENT AGREEMENT
AMONG
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.,
VARIOUS FINANCIAL INSTITUTIONS,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH,
AS ISSUER OF THE LETTER OF CREDIT,
AND
WESTDEUTSCHE LANDESBANK GIROZENTRALE
NEW YORK BRANCH
AS AGENT
Dated as of October 15, 1997
Parish of DeSoto, Series 1991B Bonds
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II LETTER OF CREDIT; FEES . . . . . . . . . . . . . . . . . . . . 11
Section 2.01. Agreement to Issue Letter of Credit . . . . . . . . . . . . . 11
Section 2.02. Adjustment to LC Commitments . . . . . . . . . . . . . . . . . 11
Section 2.03. Request to Extend the Letter of Credit . . . . . . . . . . . . 11
Section 2.04. Letter of Credit Fee . . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Fronting Fee . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Transfer Fees . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.07. Drawing Fees . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.08. Additional Fees . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III REPAYMENT OF DRAWINGS . . . . . . . . . . . . . . . . . . . . 14
Section 3.01. Repayment of Drawings; Advances . . . . . . . . . . . . . . . 14
Section 3.02. Repayment of Advances . . . . . . . . . . . . . . . . . . . . 14
Section 3.03. Overdue Interest . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.04. Payments; Computations . . . . . . . . . . . . . . . . . . . . 15
Section 3.05. Payments to Banks . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.06. Sharing Provision . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.07. Obligations Absolute . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IV PREPAYMENTS; ESCROW BONDS . . . . . . . . . . . . . . . . . . 17
Section 4.01. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.02. Release of Escrow Bonds . . . . . . . . . . . . . . . . . . . 17
ARTICLE V CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . 17
Section 5.01. Delivery of Bonds and Operative Documents . . . . . . . . . . 17
Section 5.02. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Receipt of Documents . . . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Representations and Warranties; Defaults . . . . . . . . . . . 19
Section 5.05. Certain Other Matters . . . . . . . . . . . . . . . . . . . . 19
Section 5.06. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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ARTICLE VI REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 20
Section 6.01. Due Organization, Etc . . . . . . . . . . . . . . . . . . . . 21
Section 6.02. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.03. Due Authorization . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Compliance with ERISA . . . . . . . . . . . . . . . . . . . . 22
Section 6.07. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.08. Financial Statements . . . . . . . . . . . . . . . . . . . . . 23
Section 6.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.10. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.11. Title to Property . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.12. Environmental and Other Matters . . . . . . . . . . . . . . . 24
Section 6.13. Operative Documents . . . . . . . . . . . . . . . . . . . . . 24
Section 6.14. Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.15. Investment Company . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 24
Section 7.01. Preservation of Corporate Existence . . . . . . . . . . . . . 24
Section 7.02. Compliance with Law; Environmental and Other Matters . . . . . 25
Section 7.03. Performance of Agreements . . . . . . . . . . . . . . . . . . 25
Section 7.04. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . 25
Section 7.05. Furnishing of Information . . . . . . . . . . . . . . . . . . 25
Section 7.06. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.07. Financial Statements . . . . . . . . . . . . . . . . . . . . . 26
Section 7.08. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.09. Payment of Taxes, Etc . . . . . . . . . . . . . . . . . . . . 28
Section 7.10. Maintenance of Property . . . . . . . . . . . . . . . . . . . 28
Section 7.11. Certain Notices . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE VIII NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. . . . . . . . . . 28
Section 8.02. Redemption or Purchase of Bonds; Adjustment
of Interest Rate Periods . . . . . . . . . . . . . . . . . . . 29
Section 8.03. Amendment of Operative Document . . . . . . . . . . . . . . . 29
Section 8.04. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 8.05. Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . 32
Section 8.06. Tangible Net Worth Ratio . . . . . . . . . . . . . . . . . . . 32
</TABLE>
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ARTICLE IX EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.02. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE X THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.01. The Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.02. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.03. Investigation by Banks . . . . . . . . . . . . . . . . . . . . 36
Section 10.04. Instructions . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.05. Reliance by the Agent . . . . . . . . . . . . . . . . . . . . 36
Section 10.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.07. Agent as a Bank . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.08. Resignation by the Agent . . . . . . . . . . . . . . . . . . . 37
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . 38
Section 11.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . 38
Section 11.03. Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.05. Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . 39
Section 11.06. Liability of Parties . . . . . . . . . . . . . . . . . . . . . 41
Section 11.07. Expenses, Etc . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.09. Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . 42
Section 11.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.11. Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.12. Survival of Representations and Warranties . . . . . . . . . . 43
Section 11.13. Survival of Indemnities . . . . . . . . . . . . . . . . . . . 43
Section 11.14. Satisfaction Requirement . . . . . . . . . . . . . . . . . . . 43
Section 11.15. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.16. Calculations . . . . . . . . . . . . . . . . . . . . . . . . . 44
Schedule I List of Banks/LC Commitments/LC Percentages
Schedule II Existing Liens
Exhibit A Form of Irrevocable Letter of Credit
Exhibit B-1 Form of Opinion of Baker & Botts, L.L.P.
Exhibit B-2 Form of Opinion of William O. Bonin
Exhibit C Form of Officer's Certificate
</TABLE>
<PAGE> 5
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT dated as of October 15, 1997, among CENTRAL
LOUISIANA ELECTRIC COMPANY, INC., a corporation organized and existing under
the laws of the State of Louisiana (the "Company"), the financial institutions
listed on Schedule I attached hereto (each a "Bank", and collectively the
"Banks"), and WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as agent
(in such capacity, together with any successor in such capacity, the "Agent")
and as issuer of the below-referenced Letter of Credit (in such capacity,
"WestLB").
W I T N E S S E T H :
WHEREAS, the Parish of DeSoto, State of Louisiana (the "Issuer"),
pursuant to the Act (as defined in the Indenture hereinafter referred to), has
issued and sold its Adjustable Tender Pollution Control Revenue Refunding Bonds
(Central Louisiana Electric Company, Inc. Project) Series 1991B in the
aggregate principal amount of $25,000,000 (the "Bonds") pursuant to a Trust
Indenture dated as of May 1, 1991 ,as amended and supplemented by a First
Supplemental Trust Indenture dated as of May 1, 1993 (as further amended and
supplemented from time to time in accordance with the terms thereof, the
"Indenture") from the Issuer to First National Bank of Commerce, as trustee
(together with its successors in trust and their assigns, the "Trustee"), and
has used the proceeds thereof, together with other available funds, to refund
and redeem in full the Prior Bonds (as hereinafter defined) pursuant to that
certain Refunding Agreement dated as of May 1, 1991 between the Issuer and the
Company (as amended from time to time in accordance with the terms thereof, the
"Refunding Agreement"), which Prior Bonds were issued by the Issuer to finance
the cost of acquiring, constructing, improving and equipping the Company's
undivided interest in certain air and water pollution control facilities, as
more specifically described in Exhibit B to the Refunding Agreement (the
"Project"); and
WHEREAS, the Company has requested WestLB to issue its irrevocable
letter of credit in the form of Exhibit A attached hereto (the "Letter of
Credit", which term shall include any substitute therefor or replacement
thereof issued in accordance with the terms of the Letter of Credit) to replace
the irrevocable letter of credit issued by Swiss Bank Corporation in connection
with the Bonds; and
WHEREAS, subject to and on the terms and conditions herein set forth,
WestLB is willing to issue the Letter of Credit on the date hereof; and
WHEREAS, subject to and upon the terms and conditions herein set forth,
the Company, the Agent,WestLB and the Banks are willing to enter into this
Agreement as provided herein;
NOW, THEREFORE, in consideration of the premises contained herein and in
order to induce WestLB to issue the Letter of Credit, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
1
<PAGE> 6
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. In addition to the terms
defined elsewhere in this Agreement, the following terms shall have the
respective meanings set forth below (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of the
portion of the Purchase Price corresponding to principal of the Bonds.
"Advance" and "Advances" shall have the respective meanings given to
such terms in Section 3.01 hereof.
"Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such first
Person. The term "control" and "controlled" means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership of
voting securities or partnership or other ownership interests, by
contract or otherwise.
"Agent" shall have the meaning given to such term in the first paragraph
of this Agreement.
"Agreement" shall mean this Reimbursement Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Bank" and "Banks" shall have the respective meanings given to such
terms in the first paragraph of this Agreement.
"Bankruptcy Law" shall mean title 11 of the United States Code or any
similar federal, state or foreign law for the relief of debtors.
"Base Rate" on any date shall mean the higher of (i) the rate which the
Agent announces from time to time as its prime lending rate, the Base
Rate to change when and as the prime lending rate changes or (ii) 1/2
of 1% above the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or if such rate is not so published
2
<PAGE> 7
for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent. The Base
Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. The Agent, WestLB and
any Bank may make commercial loans or other loans at rates of interest
at, above or below the Base Rate.
"B Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of principal
of the Bonds.
"Bond Purchase Agreements" shall mean the two separate Bond Purchase
Agreements, each dated May 29, 1991, among the Company, Smith Barney,
Harris Upham & Co. Incorporated and the Issuer and The Industrial
Development Board of the Parish of Rapides, Inc., respectively.
"Bonds" shall have the meaning given to such term in the first recital
of this Agreement.
"Business Day" shall mean a day of the year other than a Saturday,
Sunday or other day on which commercial banks located in the City of New
York, New York are required or authorized by law to close or on which
The New York Stock Exchange is not open.
"Capitalized Lease Obligations" shall mean all rental obligations under
a lease that are required to be accounted for and classified as
capitalized leases on the balance sheet of the Company or any of its
Subsidiaries under generally accepted accounting principles.
"C Drawing" shall have the meaning given to such term in the Letter of
Credit, which shall be a drawing in respect of the payment of interest,
or the portion of Purchase Price corresponding to interest, on the
Bonds.
"CLECO Mortgage" shall mean the Indenture of Mortgage, dated as of July
1, 1950, as supplemented and amended from time to time in accordance
with its terms, by the Company to First National Bank of Commerce
(formerly The National Bank of Commerce in New Orleans), as trustee
thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in
effect on the date of this Agreement, and to any subsequent provisions
of the Code amendatory thereof, supplemental thereto or substituted
therefor.
"Company" shall have the meaning given to such term in the first
paragraph of this Agreement.
3
<PAGE> 8
"Consolidated Interest Expense" shall mean, for any period, all amounts
accounted for (without duplication) during such period as interest on
Indebtedness, including, without limitation, (i) interest payable in
respect of all Indebtedness under this Agreement, (ii) the portion of
any Capitalized Lease Obligation attributable to interest, (iii)
commissions and other fees and charges payable in respect of all letters
of credit and (iv) the net amount due, if any, in connection with any
interest rate hedging arrangements.
"Consolidated Net Earnings" shall mean consolidated revenues of the
Company and its Subsidiaries less all operating and nonoperating
expenses of the Company and its Subsidiaries including, without
limitation, all charges of a proper character (including current and
deferred taxes on income and current additions to reserves), but not
including in net revenues any gains (net of expenses and taxes
applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e., assets other
than current assets), any gains resulting from the write-up of assets,
any equity of the Company or any Subsidiary in the unremitted earnings
of any Person acquired by the Company or any Subsidiary through
purchase, merger or consolidation or otherwise for any year prior to the
year of acquisition or any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary.
"Consolidated Net Tangible Assets" shall mean the total amount of assets
appearing on a consolidated balance sheet of the Company and its
Subsidiaries less, without duplication, the following: (i) all reserves
for depreciation and other asset valuation reserves but excluding any
reserves for deferred U.S. federal income taxes arising from accelerated
amortization or otherwise; (ii) all intangible assets such as goodwill,
trademarks, trade names, patents and unamortized debt discount and
expense carried as an asset on such balance sheet; and (iii) all
appropriate adjustments on account of minority interests of other
Persons holding Voting Stock in any Subsidiary of the Company; all
determined in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean consolidated total
shareholders' equity in the Company and its Subsidiaries, determined in
accordance with generally accepted accounting principles, less the
aggregate net amount of the following items to the extent, if any, such
items were included in consolidated assets or deducted from consolidated
liabilities in connection with the computation of such shareholders'
equity: (i) all licenses, patents, copyrights, trade names, trademarks,
goodwill, experimental or organizational expense, unamortized debt
discount and expense and all other assets which under generally accepted
accounting principles are deemed to be intangibles; (ii) all investments
other than Permitted Investments; (iii) any write-up of assets (other
than current assets) after December 31, 1996; (iv) all assets located
outside the United States of America and Canada and all Indebtedness
from any Person to the extent the primary portion of such Person's
assets or business operations are located outside the United States of
America and Canada; and (v)
4
<PAGE> 9
the book value of net tangible assets of each Subsidiary acquired in
so-called "pooling of interests" accounting treatment transactions, to
the extent such book value at the time of such acquisition exceeds the
fair value of the consideration paid for such acquisition.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness,
lease, dividend or other obligation ("Primary Obligations") of any other
Person (the "Primary Obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person
whether or not contingent, (i) to purchase any such Primary Obligation
or any property constituting direct or indirect security therefor; (ii)
to advance or supply funds (a) for the purchase or payment of any such
Primary Obligation or (b) to maintain working capital or equity capital
of the Primary Obligor or otherwise to maintain the net worth or
solvency of the Primary Obligor; (iii) to purchase property, securities
or services primarily for the purpose of assuring the holder of any such
Primary Obligation of the ability of the Primary Obligor to make payment
of any such Primary Obligation; or (iv) otherwise to assure or hold
harmless the holder of such Primary Obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable
amount of the Primary Obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person
in good faith.
"Cooke Commission Guidelines" shall mean risk-based capital guidelines
in accordance with the Basle Committee on Banking Regulations and
Supervisory Practices set forth in a paper entitled "International
Convergence of Capital Measurement and Capital Standards" dated July
1988.
"Custodian" shall mean any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Date of Issuance" shall mean the date on which the Letter of Credit
shall be issued by WestLB to the Trustee pursuant to the terms of this
Agreement.
"Default" shall mean any event which with notice or lapse or time, or
both, or the happening of any further condition, event or act, would
become an Event of Default.
"EBITDA" shall mean, for any period, Consolidated Net Earnings for such
period before Consolidated Interest Expense, income taxes, depreciation
and amortization for such period.
5
<PAGE> 10
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as
in effect on the date of this Agreement, and to any subsequent
provisions of ERISA amendatory thereof, supplemental thereto or
substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Company or any Subsidiary of the Company
would be deemed to be a member of the same "controlled group" within the
meaning of Section 414(b), (c), (m) and (o) of the Code.
"Escrow Bond" shall have the meaning given to such term in the
Indenture.
"Event of Default" shall have the meaning given to such term in Section
9.01 hereof.
"Existing Directors" shall mean those individuals who on the date of
this Agreement constitute the Board of Directors of the Company.
"Extension Request" shall have the meaning given to such term in Section
2.03 hereof.
"Government Acts" shall have the meaning given to such term in Section
11.04 hereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of
such Person for borrowed money or for the deferred purchase price of
property or services, excluding trade accounts payable in the ordinary
course of business; (ii) the face amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts
drawn thereunder; (iii) all liabilities secured by any Lien on any
property owned by such Person, whether or not such liabilities have been
assumed by such Person; (iv) the aggregate amount required, under
generally accepted accounting principles, to be capitalized under leases
under which such Person is the lessee; and (v) all Contingent
Obligations of such Person.
"Indenture" shall have the meaning given to such term in the first
recital of this Agreement.
"Issuer" shall have the meaning given to such term in the first recital
of this Agreement.
"Interest Increase Date" shall have the meaning given to such term in
Section 3.01 hereof.
"LC Commitment" shall have the meaning given to such term in Section
2.02 hereof.
"LC Percentage" shall have the meaning given to such term in Section
2.02 hereof.
6
<PAGE> 11
"Letter of Credit" shall have the meaning given to such term in the
second recital of this Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to give any
financial statement under the Uniform Commercial Code of any
jurisdiction).
"Moody's" shall mean Moody's Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors and assigns, and, if such corporation shall be dissolved or
liquidated or shall no longer be performing the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any
other nationally recognized securities rating agency approved by the
Required Banks.
"Obligations" shall mean any and all amounts owing to the Agent,WestLB
or any Bank pursuant to the terms of this Agreement.
"Officer's Certificate" shall mean a certificate signed by the
President, any Vice President, Secretary-Treasurer or the chief
financial officer of the Company.
"Official Statement" shall mean the Official Statement, dated May 29,
1991, prepared in connection with the issuance and remarketing of the
Bonds, together with all amendments, modifications and supplements
thereto.
"Operative Documents" shall mean and include this Agreement, the
Indenture, the Refunding Agreement, the Remarketing Agreement, the
Tender Agreement and the Bond Purchase Agreements.
"Other Bonds" shall mean (i) the Adjustable Tender Pollution Control
Revenue Refunding Bonds (Central Louisiana Electric Company, Inc.
Project) Series l991B issued by the Issuer and (ii) the Adjustable
Tender Pollution Control Revenue Refunding Bonds (Central Louisiana
Electric Company, Inc. Project) Series 1991 issued by The Industrial
Development Board of the Parish of Rapides, Inc.
"Other Letters of Credit" shall mean the letters of credit issued by
Westdeutsche Landesbank Girozentrale, New York Branch, pursuant to the
Other Reimbursement Agreements.
"Other Reimbursement Agreements" shall mean the two Reimbursement
Agreements dated as of October 15, 1997 among the Company, the financial
institutions party thereto and Westdeutsche Landesbank Girozentrale, New
York Branch, as agent and as issuer of
7
<PAGE> 12
the Other Letters of Credit, relating to the Other Bonds.
"Participant" shall mean any entity that purchases a participation
interest from any Bank in the Letter of Credit and this Agreement in
accordance with the provisions of Section 11.05 hereof.
"Payment Date" shall have the meaning given to such term in Section 2.04
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Investments" shall mean: (i) direct obligations of the
United States of America, or any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America,
or any agency thereof, in either case maturing not more than one year
from the date of acquisition thereof; (ii) certificates of deposit
issued by any bank or trust company organized under the laws of the
United States of America or any state thereof and having capital,
surplus and undivided profits of at least $100,000,000 maturing not more
than one year from the date of acquisition thereof; and (iii) other debt
obligations which have been given an investment grade rating by S&P,
Moody's or any other nationally recognized rating agency, provided such
obligations mature not more than one year from the date of acquisition
thereof.
"Person" shall mean and include any of an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization or
a government or any department or agency thereof.
"Plan" shall mean any multiemployer plan or any single employer plan,
subject to Title IV of ERISA, which is maintained or contributed to by
(or to which there is an obligation to contribute of), or at any time
during the five calendar years preceding the date of this Agreement was
maintained or contributed to by (or to which there was an obligation to
contribute of), the Company or any of its Subsidiaries or an ERISA
Affiliate.
"Preliminary Official Statement" shall mean the Preliminary Official
Statement, dated May 16, 1991, prepared in connection with the initial
issuance of the Bonds, together with all amendments, modifications and
supplements thereto.
"Prior Bonds" shall mean the Annual Tender Pollution Control Revenue
Bonds (Central Louisiana Electric Company, Inc. Project) Series 1983
previously issued by the Issuer for and on behalf of the Company.
"Process Agent" shall have the meaning given to such term in Section
11.09 hereof.
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<PAGE> 13
"Project" shall have the meaning given to such term in the first recital
of this Agreement.
"Purchase Price" shall have the meaning given to such term in the Letter
of Credit.
"Refunding Agreement" shall have the meaning given to such term in the
first recital of this Agreement.
"Remarketing Agreement" shall have the meaning given to such term in the
Indenture.
"Reoffering Supplement" shall mean the Reoffering Supplement dated
October 15, 1997 to the Official Statement dated May 29, 1991, which
has, as an attachment thereto, the Offical Statement.
"Reportable Event" shall mean an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the 30-day notice requirement
has not been waived by the PBGC.
"Required Banks" shall mean (i) at such time as the Letter of Credit
shall be outstanding, (a) WestLB (to the extent the relevant action will
affect the Letter of Credit or WestLB's obligations with respect thereto
in any way) and (b) Banks whose then outstanding LC Commitments and the
then outstanding Advances (if any) equal or exceed 66-2/3% of the sum of
the then Total LC Commitment and then total outstanding Advances (if
any) and (ii) at such times as the Letter of Credit shall no longer be
outstanding, Banks whose then outstanding Advances equal or exceed
66-2/3% of the then total outstanding Advances.
"S&P" shall mean Standard & Poor's Rating Services, a division of the
McGraw Hill Companies, and its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer be
performing the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating
agency approved by the Required Banks.
"Stated Amount" shall have the meaning given to such term in the Letter
of Credit.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person and/or one or more Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Subsidiaries of such Person has
more than a 50% equity interest at the time.
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"Taxes" shall have the meaning given to such term in Section 2.09
hereof.
"Tender Agent" shall have the meaning given to such term in the
Indenture.
"Tender Agreement" shall have the meaning given to such term in the
Indenture.
"Term Repayment Date" shall have the meaning given to such term in
Section 3.01 hereof.
"Termination Date" shall mean the date on which the Letter of Credit
terminates or expires in accordance with its terms (as such expiration
date may be extended pursuant to Section 2.03 hereof).
"Total Capitalization" shall mean (i) the sum of (a) the principal
amount of all Indebtedness of the Company or any of its Subsidiaries
which, at the time of the incurrence thereof, had a stated maturity in
excess of one year, exclusive of any intercompany Indebtedness owed by
the Company or any of its Subsidiaries but, in any event, including all
Indebtedness of the Company incurred hereunder (regardless of the stated
maturity thereof) (b) the par or stated value of all outstanding capital
stock (including premiums on capital stock) of all classes of the
Company, exclusive of all such stock held in the Company's treasury or
owned beneficially or of record by any Affiliate of the Company, and (c)
the retained earnings of the Company and its Subsidiaries, less (ii)
unamortized capital stock expense.
"Total LC Commitment" shall have the meaning given to such term in
Section 2.01 hereof.
"Trustee" shall have the meaning given to such term in the first recital
of this Agreement.
"Unfunded Current Liability" of any Plan shall mean the amount, if any,
by which the present value of the accrued benefits under the Plan as of
the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 35, based upon the
actuarial assumptions used by the Plan's actuary in the most recent
annual valuation of the Plan, exceeds the fair market value of the
assets allocated thereto, determined in accordance with Section 412 of
the Code.
"Voting Stock" shall mean stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of the relevant
corporation, provided, however, that, for purposes of this Agreement,
stock that carries only the right to vote conditionally on the happening
of an event shall not be considered voting stock whether or not such
event shall have happened.
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"WestLB" shall have the meaning given to such term in the first
paragraph of this Agreement.
ARTICLE II
LETTER OF CREDIT; FEES
Section 2.01. Agreement to Issue Letter of Credit. WestLB agrees
with the Company, on the terms and subject to the conditions herein set forth
(including, without limitation, the conditions specified in Article V hereof),
to issue the Letter of Credit to the Trustee on October 15, 1997. The initial
face amount of the Letter of Credit shall be $25,419,178.08 (such amount, as
reduced or reinstated from time to time in accordance with the terms of the
Letter of Credit, the "Total LC Commitment"); provided, that no more than
$419,178.08 may be drawn thereunder with respect to the payment of interest on
the Bonds; and, provided further, that in no event shall any amount be drawn
under the Letter of Credit for the payment of any premium on the Bonds. The
Letter of Credit shall expire on October 15, 2000, unless otherwise terminated
or extended. WestLB agrees that it will pay all drawings under the Letter of
Credit with its own funds.
Section 2.02. Adjustment to LC Commitments. Upon any reduction
or reinstatement of the Stated Amount of the Letter of Credit in accordance
with the terms thereof, the LC Commitment (as defined below) of each Bank shall
be reduced or increased, respectively, based on the LC Percentage (as defined
below) of such Bank, to reflect the new Stated Amount of the Letter of Credit
(it being understood that the aggregate LC Commitments of the Banks with
respect to the Letter of Credit shall at all times equal the Stated Amount of
the Letter of Credit, and that in no event shall the LC Commitment of any Bank
be increased to an amount in excess of the original LC Commitment of such Bank,
except in accordance with the provisions of Section 11.01 hereof). As used
herein, the terms (i) "LC Percentage" shall mean, for each Bank, that
percentage set forth opposite such Bank's name on Schedule I attached hereto
(as Schedule I may be amended from time to time to reflect adjustments thereto
pursuant to Section 11.05 hereof) and (ii) "LC Commitment" shall mean, for each
Bank, at any time, an amount equal to such Bank's LC Percentage at such time
multiplied by the Stated Amount of the Letter of Credit at such time.
Section 2.03. Request to Extend the Letter of Credit. On any
date which is at least ninety (90) days prior to the date which is not more
than two years preceding the Termination Date of the Letter of Credit, if no
Default or Event of Default shall have occurred and be continuing, the Company
may request in writing to WestLB and the Banks, with a copy to the Agent (such
request being irrevocable), that WestLB extend the Termination Date of the
Letter of Credit for one (1) year (such request being referred to herein as the
"Extension Request"). If the Company shall have made the Extension Request,
the Agent shall, on or prior to the date which is forty-five (45) days after
the date of receipt by the Agent, WestLB and the Banks of such Extension
Request, notify the Company in writing whether or not WestLB and the Banks
consent to such Extension Request and, if WestLB and the Banks do so consent,
the terms and conditions of such consent, it being understood and agreed that
(i) no such extension shall be granted unless WestLB and all of the Banks shall
have consented in writing to such extension, (ii) if the Agent shall fail to
give such notice within such forty-five (45) day period, WestLB and the
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Banks shall be deemed not to have consented to such extension and (iii) neither
WestLB nor any Bank shall have any obligation whatsoever to extend the Letter
of Credit pursuant to this Section 2.03 (or any liability whatsoever in the
event such Extension Request is denied for whatever reason), any such extension
being in the sole and absolute discretion of WestLB and each of the Banks. If
WestLB and the Banks shall agree to extend for one year the Termination Date of
the Letter of Credit, and provided all of the conditions to such extension
specified in the Agent's reply to the Extension Request shall have been met,
WestLB shall issue an amendment to such Letter of Credit (or a new Letter of
Credit, as WestLB may elect) extending the Termination Date of the Letter of
Credit by one year.
Section 2.04. Letter of Credit Fee. The Company hereby agrees
to pay to the Agent, for distribution to each Bank, a letter of credit fee as
agreed with each Bank and specified in a letter agreement between the Company
and the Agent for the period from and including the later of the Date of
Issuance or the date of such letter agreement. Amounts payable under this
Section 2.04 shall be payable quarterly in arrears on the last Business Day of
each March, June, September and December occurring prior to the Termination
Date (each such date, a "Payment Date"), commencing December 31, 1997, and on
the Termination Date.
Section 2.05. Fronting Fee. The Company hereby agrees to pay to
the Agent, for distribution to WestLB, a letter of credit fronting fee as
agreed with WestLB and specified in a letter agreement between the Company and
the Agent. Such fee shall be payable quarterly on each Payment Date commencing
with December 31, 1997 and on the Termination Date.
Section 2.06. Transfer Fees. The Company hereby agrees to pay
to WestLB, for its own account, upon each transfer of the Letter of Credit in
accordance with its terms, $1,000 or such other amount as shall at the time of
such transfer be the charge which WestLB is making generally for transfers of
similar letters of credit. Amounts payable under this Section 2.06 shall be
payable at the time of such transfer of the Letter of Credit.
Section 2.07. Drawing Fees. The Company hereby agrees to pay to
WestLB, for its own account, upon each drawing by the Trustee under the Letter
of Credit, the sum of $200 or such other amount as shall at the time of such
drawing be the charge which WestLB is making generally for drawings on similar
letters of credit. Amounts payable under this Section 2.07 shall be payable
quarterly in arrears on each Payment Date, commencing on December 31, 1997, and
on the Termination Date.
Section 2.08. Additional Fees. The Company hereby agrees to pay
to the Agent for its own account upfront and administrative fees specified in a
letter agreement between the Company and the Agent.
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Section 2.09. Taxes. All payments made by the Company hereunder
shall be made without set off, counterclaim or other defense. All such
payments shall be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any jurisdiction
or by any political subdivision or taxing authority thereof or therein (but
excluding any tax imposed on or measured by the net income of WestLB, any Bank
or any Participant, as applicable, pursuant to the laws of the jurisdiction (or
any political subdivision or taxing authority thereof or therein) in which the
principal office or applicable lending office of such Person is located) and
all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). If any Taxes are so levied or imposed, the Company
agrees to pay the full amount of such Taxes and such additional amounts as may
be necessary so that every payment of all amounts due hereunder, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein. The Company will furnish to the Agent, within
45 days after the date the payment of any Taxes is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by the Company.
The Company shall indemnify and hold harmless WestLB, each Bank and each
Participant, as applicable, and reimburse each such Person upon its written
request, for the amount of any Taxes so levied or imposed and paid by such
Person.
Section 2.10. Increased Costs. If any change in or enactment of
any law or governmental rule, regulation or order (whether or not having the
force of law) or in the interpretation thereof by any court or administrative
or governmental authority or central bank or comparable agency charged with the
administration thereof (including implementation of the Cooke Commission
Guidelines), or compliance by WestLB, any Bank or any Participant with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, or any change in generally
accepted accounting principles at any time in effect in the United States or in
the Federal Republic of Germany, shall either (i) impose, modify or deem
applicable any reserve, capital adequacy, special deposit or similar
requirement against letters of credit issued by, or assets held by, or deposits
in or for the account of, WestLB, any Bank or any Participant in connection
with, or against participation in, the Letter of Credit or (ii) impose on
WestLB, any Bank or any Participant any other condition relating, directly or
indirectly, to this Agreement, the Letter of Credit or participation in the
Letter of Credit, and the result of any event referred to in the preceding
clause (i) or (ii) shall be to increase the cost to such Person of issuing,
maintaining or participating in the Letter of Credit (which increase in cost
shall be determined by such Person using reasonable allocation methods), then
such Person shall so notify the Agent and, upon demand by the Agent on behalf
of such Person, the Company shall immediately pay to the Agent, for
distribution to such Person, from time to time as specified by the Agent, such
additional amounts as shall be sufficient to compensate such Person for such
increased costs from the date of such change, enactment or compliance, together
with interest on each such amount from the date of demand therefor until
payment in full thereof at the Base Rate plus 2% per annum. A certificate
setting forth in reasonable detail such increased cost incurred by such Person,
submitted by such Person to the Agent and from the Agent to the Company, shall
be conclusive, absent manifest error, as the
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amount thereof. Any Person seeking payment from the Company pursuant to this
Section 2.10 shall so inform the Company promptly upon learning of the
occurrence of the event or action upon which such recovery will be based.
ARTICLE III
REPAYMENT OF DRAWINGS
Section 3.01. Repayment of Drawings, Advances. The Company
hereby agrees to pay to WestLB (i) immediately after any payment is made under
the Letter of Credit pursuant to any "B Drawing" or any "C Drawing" to pay
principal of or interest (or the portion of Purchase Price corresponding to
interest) on the Bonds, an amount equal to such amount so paid under the Letter
of Credit and (ii) on the earlier to occur of the Termination Date and the day
next succeeding the first anniversary of the date that any payment is made
under the Letter of Credit pursuant to any "A Drawing" to pay the portion of
Purchase Price corresponding to principal on the Bonds (such earlier date, the
"Term Repayment Date"), an amount equal to such amount paid under the Letter of
Credit together with interest thereon (a) from and including the date of such
drawing to but excluding the earlier to occur of the Termination Date and the
fifteenth (15th) day following the date of such drawing (such earlier date, the
"Interest Increase Date"), at a rate per annum equal to the Base Rate and (b)
from and including the Interest Increase Date to but excluding the due date
thereof, at a rate per annum equal to the Base Rate plus 2%. In the event that
the Company shall fail to reimburse WestLB when due following any drawing
specified in clause (i) above, or WestLB shall make any payment under the
Letter of Credit specified in clause (ii) above and the Company shall not
reimburse WestLB for such payment on the date such payment was made, then, (1)
WestLB shall promptly advise the Agent thereof, (2) the Agent shall promptly
advise each of the Banks thereof and of each such Bank's LC Percentage of such
unreimbursed drawing (expressed both as a percentage and in U.S. dollars), and
(3) each Bank (other than WestLB) shall make available to WestLB in the lawful
currency of the United States by wire transfer of immediately available funds
an amount equal to its LC Percentage of such unreimbursed drawing by
transferring the same, at or before 12:00 noon (New York time) on the date
designated in such advice, such date to be no less than one Business Day after
receipt by such Bank of such advice, to WestLB at its office specified in
Section 3.04 hereof. If any payment required to be made by a Bank to WestLB is
not made as provided above, WestLB shall be entitled to recover such amount
from such Bank on demand, together with interest thereon at a rate per annum
equal to (A) the cost to WestLB of acquiring overnight Federal funds for the
initial two (2) days such amount remains unpaid and (B) the Base Rate per annum
thereafter. WestLB (upon the honoring of any drawing), and each other Bank
(upon the payment to WestLB of its LC Percentage of such drawing as provided
above), shall each be deemed to have made a loan (each an "Advance", and
collectively, the "Advances") to the Company. Each such Advance shall be
applied (to the extent of such Advance) in satisfaction of the Company's
reimbursement obligation set forth in the first sentence of this Section 3.01,
and each Advance shall be repayable pursuant to, and shall otherwise be subject
to, the terms and conditions set forth herein.
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Section 3.02. Repayment of Advances. The Company hereby agrees
to pay to the Agent (i) immediately after any Advance is deemed made pursuant
to Section 3.01 above in respect of drawings under the Letter of Credit
specified in Section 3.01(i) above, an amount equal to such Advance so made and
(ii) on the Term Repayment Date, an amount equal to the Advances deemed made
pursuant to Section 3.01 above in respect of drawings under the Letter of
Credit specified in Section 3.01(ii) above together with interest thereon (a)
from and including the date of such Advance to but excluding the Interest
Increase Date, at a rate per annum equal to the Base Rate and (b) from and
including the Interest Increase Date to but excluding the due date thereof, at
a rate per annum equal to the Base Rate plus 2%. All payments of interest and
principal on Advances shall be made to the Agent for distribution to the Banks
pro rata on the basis of the amounts of their respective Advances.
Section 3.03. Overdue Interest. The Company hereby agrees to
pay to WestLB or the Agent, as applicable, for the account of WestLB, the Agent
or the Banks, as applicable, interest on any and all amounts required to be
paid to WestLB, the Agent or the Banks under this Agreement (including, without
limitation, under Article II hereof and under Sections 3.01(i) and 3.02(i)
hereof but excluding amounts payable under Sections 3.01(ii) and 3.02(ii)
hereof) from and after the due date thereof until payment in full, payable on
demand, at a rate per annum equal to the Base Rate plus 2%; provided that
notwithstanding the foregoing, with respect to the amounts payable pursuant to
Sections 3.01(i) and 3.02(i) hereof, for the fifteen (15) day period
immediately succeeding the due date in respect of such amounts, so long as no
Default or Event of Default shall have occurred and be continuing during such
period, the interest rate payable by the Company pursuant to this Section 3.03
shall be the Base Rate (it being understood that if any Default or Event of
Default shall occur and be continuing at any time during such fifteen (15) day
period, the interest rate payable by the Company during such fifteen (15) day
period shall be the rate per annum equal to the Base Rate plus 2% per annum).
In addition, the Company hereby agrees to pay to WestLB or the Agent, as
applicable, for the account of WestLB or the Banks, as applicable, interest on
any and all amounts required to be paid to WestLB or the Banks under Sections
3.01(ii) and 3.02(ii) hereof from and after the due date thereof until payment
in full, payable on demand, at a rate per annum equal to 2% in excess of the
interest rate payable with respect to such amounts immediately prior to such
due date.
Section 3.04. Payments; Computations. All payments by the
Company to WestLB or the Agent required to be made under this Agreement shall
be made in lawful currency of the United States by wire transfer of immediately
available funds to the offices of The Chase Manhattan Bank, located at One Chase
Manhattan Plaza, New York, New York, for the account of Westdeutsche
Landesbank Girozentrale, no. 920-1-060663 unless WestLB or the Agent, as the
case may be, shall otherwise notify the Company in writing. All computations
of amounts payable under this Agreement shall be computed, in the case of fees
and commissions, on the basis of a year of 360 days and, in the case of
interest, on the basis of a year of 365 (or 366, as the case may be) days, in
each case for the actual number of days occurring in the period for which such
fees, commissions or interest is payable. If any payment required to be made
under this Agreement other than those payments required
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under Sections 2.04, 2.05 and 2.07 becomes due and payable on a day other than
a Business Day, the same shall be payable on the next succeeding Business Day,
and interest shall be payable at the rate otherwise applicable thereto on any
such payment to the Business Day on which such payment is made.
Section 3.05. Payments to Banks. The Agent agrees that promptly
after its receipt of each payment from or on behalf of the Company in respect
of any Obligations of the Company hereunder, it shall distribute such payment
to the Banks pro rata based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
Section 3.06. Sharing Provision. Each of the Banks agrees that
if it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right or set off or banker's
lien, by counterclaim or cross action, by the enforcement of any right
hereunder or under any other Operative Document, or otherwise), which is
applicable to the payment of the principal of, or interest on, the Advances or
any other amount otherwise payable under this Agreement, and which is of a sum
which, with respect to the related sum or sums received by the other Banks, is
in a greater proportion than that which the total amount of such Obligation
then owed and due to such Bank bears to the total amount of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without
recourse or warranty from the other Banks an interest in the Obligations of the
Company to such Banks in such amount as shall result in a proportional
participation by all the Banks in such amount; provided, however, that if all
or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
Section 3.07. Obligations Absolute. The obligations of the
Company under this Agreement shall be absolute, unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances whatsoever, notwithstanding, without limitation, the
following:
(i) any lack of validity or enforceability of the Letter of
Credit, the Bonds, any Operative Document or any other instrument or
agreement related thereto;
(ii) any amendment or waiver of or any consent to departure
from all or any of the Operative Documents, the Letter of Credit or the
Bonds;
(iii) the existence of any claim, set off, defense or other
rights which the Company may have at any time against the Issuer, the
holders of the Bonds, any beneficiary or transferee of the Letter of
Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Agent, WestLB, the Banks (other than the
defense of indefeasible payment to the Agent, WestLB or the Banks, as
applicable, in accordance with the terms of this Agreement) or any other
Person, whether in connection with the Bonds, the Letter of Credit, any
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Operative Document or any other related or unrelated document or
transaction;
(iv) any statement or any document presented under the Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement or information therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by WestLB under the Letter of Credit against
presentation of a sight draft or certificate which does not comply with
the terms of the Letter of Credit, provided that such payment shall not
have constituted gross negligence or willful misconduct of WestLB; and
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that such other
circumstance or happening shall not have been the result of gross
negligence or willful misconduct of the Agent, WestLB or the Banks.
ARTICLE IV
PREPAYMENTS; ESCROW BONDS
Section 4.01. Prepayments. Any amounts from time to time owing
to the Banks pursuant to Section 3.02(ii) hereof may be prepaid (i) at any time
by the Company on one Business Day's notice stating the amount to be prepaid
(which shall be $100,000 or any integral multiple of $5,000 in excess thereof)
and (ii) at any time in connection with a remarketing of Bonds pursuant to
Section 13.06 of the Indenture.
Section 4.02. Release of Escrow Bonds. Upon payment to the
Agent of the amount to be prepaid pursuant to clause (i) or (ii) of Section
4.01 (the "Prepayment Amount"), together with accrued interest, as set forth in
Section 3.02(ii), to the date of such prepayment on the amount to be prepaid,
the outstanding obligations of the Company under Section 3.02(ii) shall be
reduced by the amount of such prepayment and interest shall cease to accrue on
the amount prepaid. In addition, upon payment to the Agent of the Prepayment
Amount and the amount owing, if any, in respect of the "C Drawing" made in
conjunction with the "A Drawing" to which such Prepayment Amount relates, the
Agent shall direct the Tender Agent to release Escrow Bonds in an aggregate
principal amount equal to the Prepayment Amount, all in accordance with the
provisions of Section 7(b) of the Tender Agreement.
ARTICLE V
CONDITIONS PRECEDENT
The obligation of WestLB to issue the Letter of Credit is subject
to the following conditions:
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Section 5.01. Delivery of Bonds and Operative Documents. The
Operative Documents and the Bonds shall each have been executed and delivered
by the respective parties thereto, shall each be in full force and effect, and
shall each be in form and substance satisfactory to the Agent, WestLB and each
Bank. The Agent shall have received (with sufficient copies for WestLB and
each Bank) an executed or conformed copy of each Operative Document and a
specimen copy of the Bonds.
Section 5.02. Intentionally Omitted.
Section 5.03. Receipt of Documents. The Agent shall have
received (with sufficient copies for WestLB and each Bank), on or before the
Date of Issuance, the following, in form and substance satisfactory to the
Agent, WestLB and each Bank:
(i) copies of the resolutions of the Board of Directors of the
Company or any duly authorized committee thereof, authorizing the
execution, delivery and performance of this Agreement, certified by the
President, any Vice President, the chief financial officer, the
Secretary-Treasurer or an Assistant Secretary of the Company;
(ii) an Officer's Certificate, certifying the names and true
signatures of the officers of the Company authorized to sign this
Agreement, and the other documents to be delivered hereunder;
(iii) an opinion of (a) Baker & Botts, L.L.P. special counsel to
the Company, substantially in the form of Exhibit B-1 attached hereto,
and (b) William O. Bonin, special Louisiana counsel to the Company,
substantially in the form of Exhibit B-2 attached hereto, in each case
dated the Date of Issuance, addressed to WestLB, the Agent and the
Banks;
(iv) a copy of the Reoffering Supplement which includes, as an
attachment thereto, the Official Statement;
(v) a copy of the restated articles of incorporation of the
Company, certified as of a recent date by the Secretary of State of the
State of Louisiana, together with a certificate of good standing for the
Company, dated as of a recent date.
(vi) a letter from the Process Agent, in a form reasonably
satisfactory to the Agent, indicating the consent by the Process Agent
to its appointment by the Company as its agent to receive service of
process as specified in Section 11.09 hereof;
(vii) copies of the by-laws of the Company, certified as of the
Date of Issuance by the President, any Vice President, the chief
financial officer, the Secretary-Treasurer or an Assistant Secretary of
the Company;
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(viii) an opinion (or a signed copy of such opinion together with
a satisfactory reliance letter) of Foley & Judell L.L.P., Bond Counsel,
dated the Date of Issuance, addressed to WestLB, the Agent and the Banks
and in form and substance satisfactory to WestLB, the Agent and the
Banks, to the effect that the delivery of the Letter of Credit does not
conflict with the laws of the State of Louisiana, is permitted by the
Indenture and the Refunding Agreement, complies with the terms of the
Indenture and the Refunding Agreement and will not adversely affect any
exclusion from gross income for federal income tax purposes of interest
on the Bonds;
(ix) an Officer's Certificate, dated the Date of Issuance,
substantially in the form of Exhibit C attached hereto; and
(x) copies of written evidence from Moody's and S&P pursuant
to Section 3.01(a) of the Indenture; and
(xi) such other information, documents, instruments, approvals
and opinions as WestLB, the Agent or any Bank or any of their respective
counsel may reasonably request.
Section 5.04. Representations and Warranties; Defaults. The
following statements shall be true and correct on the Date of Issuance and the
Agent shall have received (with sufficient copies for WestLB and each Bank) an
Officer's Certificate, dated the Date of Issuance, stating that:
(i) on the Date of Issuance, both before and after giving
effect to the execution and delivery of this Agreement and the issuance
of the Letter of Credit, all representations and warranties made by the
Company in Article VI of this Agreement and in each other Operative
Document to which it is a party, and all representations and warranties
otherwise made by the Company in writing in connection herewith or with
any other Operative Document to which it is a party, are true and
correct on and as of the Date of Issuance as though made on and as of
such date; and
(ii) on the Date of Issuance, both before and after giving
effect to the execution and delivery of this Agreement and the issuance
of the Letter of Credit, there exists no Default or Event of Default.
Section 5.05. Certain Other Matters. On and as of the Date of
Issuance:
(i) there shall be no order or other restrictions in effect
issued by any court, governmental or regulatory agency or arbitrator
against or directly involving any party to any Operative Document or the
Bonds which prevents such party from performing any of its obligations
under such Operative Document or the Bonds;
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(ii) each Person party to an Operative Document or the Bonds
shall have received all necessary governmental, regulatory and third
party consents and approvals required to be obtained by such Person in
order to consummate the transactions contemplated by the Operative
Documents and the Bonds, including, in the case of the Company and
without limitation, the approval of the Louisiana Public Service
Commission in respect of the transactions contemplated in connection
with the issuance of the Bonds and the consummation of the transactions
contemplated by this Agreement.
(iii) simultaneously with the issuance of the Letter of Credit,
all of the conditions specified in the Other Reimbursement Agreements
for the issuance of the Other Letters of Credit shall have been
satisfied (or waived by the Required Banks (as defined therein)), and
the Other Letters of Credit shall have been issued simultaneously with
the issuance of the Letter of Credit to the beneficiary thereof pursuant
to the terms of the Other Reimbursement Agreements;
(iv) there shall have been no material adverse change in the
business, operations, condition (financial or otherwise) or prospects of
the Company or of the Company and its Subsidiaries taken as a whole
since December 31, 1996; and
(v) the Agent, WestLB and the Banks shall have received all
fees set forth or referred to in Article II hereof that shall be due and
payable on or before the Date of Issuance.
Section 5.06. Proceedings. All corporate and legal proceedings
and all instruments in connection with the transactions contemplated by this
Agreement and the other Operative Documents shall be satisfactory in form and
substance to the Agent, WestLB, the Banks and their respective counsel, and
each of the Agent, WestLB and the Banks shall have received all information and
copies of all documents, including records of corporate proceedings,
governmental approvals, incumbency certificates, and opinions which any of them
may have reasonably requested in connection with the transactions contemplated
by this Agreement and the other Operative Documents, such documents where
appropriate to be certified by proper officers.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, WestLB and each of the Banks to
enter into this Agreement, and in order to induce WestLB to issue the Letter of
Credit, the Company makes the following representations and warranties to the
Agent, WestLB and each of the Banks, which representations and warranties shall
survive the execution and delivery of this Agreement and the Letter of Credit,
regardless of any investigation made by or on behalf of the Agent, WestLB or
any of the Banks:
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Section 6.01. Due Organization, Etc. Each of the Company and
its Subsidiaries (i) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its incorporation and (ii)
has all requisite corporate power and authority to own its property and assets
and to transact its business as presently conducted.
Section 6.02. No Conflicts. The execution, delivery and
performance by the Company of this Agreement and each of the other Operative
Documents to which it is a party (i) are within the Company's corporate power,
(ii) have been duly authorized by all necessary corporate action on the part of
the Company, (iii) do not and will not require any consent or approval of any
class of stockholders of the Company, (iv) do not and will not (a) contravene
the charter or by-laws of the Company or (b) contravene any applicable law,
rule, regulation (including, without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System or any rules or
regulations of the Louisiana Public Service Commission), order, writ, judgment,
injunction or decree presently in effect having applicability to the Company or
any of its Subsidiaries, (v) except as required by the provisions of the
Refunding Agreement, do not and will not result in or require the creation of
any Lien upon or with respect to any of the properties of the Company or any of
its Subsidiaries and (vi) do not and will not result in the violation of or be
in conflict with or result in a default under or breach or termination of any
term or provision of any mortgage, lease, agreement, indenture, contract,
instrument or other document to or by which the Company or any of its
Subsidiaries is a party or otherwise bound or to which any of the assets or
properties of the Company or any of its Subsidiaries are subject, except any
such violation, conflict, default, breach or termination referred to in this
clause (vi) which, individually or in the aggregate, (a) would not affect the
legality, validity, enforceability or binding effect of the Bonds, this
Agreement or any of the other Operative Documents and (b) would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.03. Due Authorization. No order, authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Company of this Agreement or any of the other Operative
Documents to which it is a party, other than any of the foregoing which shall
have been previously obtained or made by the Company and which are currently in
full force and effect. The Louisiana Public Service Commission has duly issued
its order authorizing the Company to enter into this Agreement and the other
Operative Documents to which it is a party and to take all action contemplated
hereby and thereby or in connection herewith or therewith, and such orders
remain in full force and effect in the forms originally issued.
Section 6.04. Enforceability. This Agreement and each of the
other Operative Documents to which the Company is a party constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
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Section 6.05. Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries or any of their respective properties or
rights, or involving any of the Operative Documents, before any court,
administrative, governmental or regulatory agency or arbitrator, and there is
no pending or, to the knowledge of the Company, proposed legislative,
regulatory, rule-making, rate-setting or investigatory proceeding before any
federal, state, county or municipal government, department, commission, board
or agency or any other instrumentality of any of them involving or affecting
the Company, any of its Subsidiaries or the Issuer, in any case which (i) alone
or together with others would, if adversely determined, have a material adverse
effect on the business, operations, condition (financial or otherwise) or
prospects of the Company or of the Company and its Subsidiaries taken as a
whole (except that for the purposes of this clause (I) an earnings review or
the commencement by the Company of rate increase proceedings with the Louisiana
Public Service Commission or the Federal Energy Regulatory Commission shall not
constitute such a pending or threatened action or proceeding unless and until
such commission's determination is made thereunder that has such a material
adverse effect) or (ii) questions the legality, validity, enforceability or
binding effect of the Bonds, this Agreement or any other Operative Document or
would impair materially the Company's ability to perform its obligations under
this Agreement or any of the other Operative Documents to which it is a party.
Section 6.06. Compliance with ERISA. With respect to each Plan,
other than a multiemployer plan as defined in Section 4001(a)(3) of ERISA, (i)
each such Plan is in substantial compliance with ERISA and the Code; (ii) no
Reportable Event has occurred; (iii) no such Plan has an Unfunded Current
Liability which could have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole; (iv) no such Plan has an
accumulated or waived funding deficiency; (v) no such Plan has applied for an
extension of any amortization period under Section 412(a) of the Code; (vi) no
proceedings have been instituted to terminate any such Plan nor, to the
knowledge of the Company, does there exist reason for the PBGC to attempt to
take possession of or terminate any such Plan under Section 4042 of ERISA; and
(vii) there has been no withdrawal from any such Plan so as to result in
liability for the Company or any ERISA Affiliate under any of Sections 4062(e)
or 4063 of ERISA. With respect to Plans that are multi employer plans within
the meaning of Section 4001(a)(3) of ERISA, (a) no such Plan is insolvent or in
reorganization; (b) neither the Company nor any ERISA Affiliate has any
liability under Section 515 with respect to such Plan except for good faith
disputes concerning the amount of such liability; and (c) neither the Company
nor any ERISA Affiliate has withdrawn or partially withdrawn from any such Plan
and as a result thereof incurred any liability under Sections 4201 or 4204 of
ERISA. Neither the Company nor any of its Subsidiaries nor any ERISA Affiliate
expects to incur any material liability to or on account of a Plan pursuant to
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA. No lien imposed under
the Code or ERISA on the assets of the Company or any of its Subsidiaries or
any ERISA Affiliate exists. Neither the Company nor any of its Subsidiaries
nor any ERISA Affiliate maintains or contributes to any employee welfare
benefit plan as defined in Section 3(1) of ERISA which provides benefits to
retired employees (other than as required by Section 601 of
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ERISA) the obligations with respect to which could have a material adverse
effect on the ability of the Company to perform any of its obligations under
this Agreement.
Section 6.07. No Defaults. Neither the Company nor any of its
Subsidiaries is in default under or breach of (nor does any circumstance or
occurrence exist which, with the passage of time or the giving of notice or
both, would constitute a default under or breach of) any mortgage, lease,
agreement, indenture, contract, instrument or other document to which it is a
party or to which it or any of its properties may be bound, other than any such
breach or default which would not, individually or in the aggregate, have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 6.08. Financial Statements. The Company has furnished,
or caused to be furnished, to the Agent, with sufficient copies for WestLB and
each Bank, the following financial statements: (i) the consolidated balance
sheets of the Company and its Subsidiaries as at December 31, 1995 and December
31, 1996, and the related consolidated statements of income and changes in
shareholders' equity and of cash flows for the fiscal years ended as of such
dates, which, in each case, have been certified by Coopers & Lybrand L.L.P.,
independent certified public accountants for the Company; and (ii) the
consolidated balance sheets of the Company and its Subsidiaries as at June 30,
1995 and June 30, 1996, and the related consolidated statements of income and
of cash flows for the six months ended as of such dates, which, in each case,
have been prepared by the Company. Such financial statements (including any
related schedules and/or notes thereto) have been prepared in accordance with
generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as otherwise set forth in the
notes to said financial statements) and reflect all liabilities, direct and
contingent, of the Company and its Subsidiaries required to be shown in
accordance with such principles. Such financial statements fairly present the
consolidated financial condition of the Company as at the dates thereof and the
consolidated results of operations and cash flows for the periods indicated
(subject, as to any interim statements, to normal year end adjustments). There
has been no material adverse change in the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole since December 31, 1996.
Section 6.09. Taxes. Each of the Company and its Subsidiaries
has filed all federal and state income tax returns which are required to be
filed by it, and each has paid all taxes as shown on such returns and on all
assessments received by it except to the extent that such taxes have not become
due and other than taxes the amount or validity of which are currently being
contested in good faith by appropriate proceedings with respect to which
reserves in accordance with general accepted accounting principles have been
provided.
Section 6.10. Disclosure. Intentionally Omitted.
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Section 6.11. Title to Property. Each of the Company and its
Subsidiaries has good and marketable title to all of its material real
properties and good title to all of its other material properties and assets,
free and clear of all Liens, other than those permitted to exist pursuant to
Section 8.04.
Section 6.12. Environmental and Other Matters. Each of the
Company and its Subsidiaries is in compliance with all applicable statutes,
rules and regulations governing pollution and environmental control, equal
employment opportunity and employee safety in all jurisdictions in which it is
doing business, other than such noncompliances which, individually or in the
aggregate, would not have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Company or
of the Company and its Subsidiaries taken as a whole. No Lien in favor of any
governmental authority has been asserted or recorded under any statute, rule or
regulation, governing pollution and environmental control with respect to any
of the assets or properties of the Company or any of its Subsidiaries.
Section 6.13. Operative Documents. The Company makes to WestLB,
the Agent and each of the Banks each of the representations and warranties made
by it in each of the other Operative Documents to which it is a party to the
same extent as if the same were set forth at length herein. There is no
default by the Company or, to the knowledge of the Company, by any other Person
under any of the other Operative Documents.
Section 6.14. Margin Stock. The Company is not principally
engaged in, nor does it have as one of its principal activities, the business
of extending credit for the purpose of purchasing or carrying any "margin
stock" (as such term is defined in Regulation U of the Board of Governors of
the Federal Reserve System). None of the proceeds of the Bonds or of any
drawing under the Letter of Credit will be used, directly or indirectly, to
purchase or carry any such margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 6.15. Investment Company. The Company is not an
"investment company", as defined in the Investment Company Act of 1940, as
amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance
until such time as the Letter of Credit is no longer outstanding and all
Obligations are paid in full:
Section 7.01. Preservation of Corporate Existence. Subject to
Section 8.01 hereof, the Company will, and will cause each of its Subsidiaries
to, (i) preserve and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction of its incorporation and (ii) qualify and remain
qualified as a foreign
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corporation in good standing in each jurisdiction where the operation of its
businesses or the ownership of its assets requires such qualification;
provided, however, that the Company and its Subsidiaries will not be required
to preserve any such right, franchise, privilege or qualification if the
Company or any such Subsidiary determines that the preservation thereof is no
longer desirable or, in the case of qualification, required, and determines
that the loss of such rights, franchises, privileges or qualifications will not
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole.
Section 7.02. Compliance with Law; Environmental and Other
Matters. The Company will, and will cause each of its Subsidiaries to, comply
with the requirements of all applicable laws, rules, regulations and orders of
any governmental authority having jurisdiction over it (including, without
limitation, ERISA and the statutes, rules and regulations thereunder and all
statutes, rules and regulations governing pollution and environmental control,
equal employment opportunity and employee safety), except for such
noncompliances which, individually or in the aggregate, would not have a
material adverse effect on the business, operations, condition (financial or
otherwise) or prospects of the Company or of the Company and its Subsidiaries
taken as a whole.
Section 7.03. Performance of Agreements. The Company will, and
will cause each of its Subsidiaries to, observe and perform (i) with respect to
the Company, all of its obligations under this Agreement and the other
Operative Documents to which it is a party and (ii) with respect to the Company
and its Subsidiaries, all of their respective obligations under each mortgage,
lease, agreement, indenture, contract, instrument or other document to which it
is or may become a party or by which it is or may become bound, except such
non-observance or non-performance which would not, individually or in the
aggregate, have a material adverse effect on the business, operations,
condition (financial or otherwise) or prospects of the Company or of the
Company and its Subsidiaries taken as a whole.
Section 7.04. Maintenance of Insurance. The Company will, and
will cause each of its Subsidiaries to, maintain insurance with responsible and
reputable insurance companies in such amounts, with such deductibles and
covering such risks as is usually maintained by companies conducting similar
businesses and owning similar properties.
Section 7.05. Furnishing of Information. The Company will, for
itself and on behalf of each of its Subsidiaries, furnish to the Agent, WestLB
and each Bank the following: (i) immediately following the occurrence of any
Default or Event of Default, an Officer's Certificate setting forth details of
such Default or Event of Default, the period of existence thereof and the
action proposed to be taken by the Company or such Subsidiary with respect
thereto and (ii) such other information respecting the business, operations,
condition (financial or otherwise) or prospects of the Company or any of its
Subsidiaries as WestLB, the Agent or any Bank may from time to time reasonably
request.
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Section 7.06. ERISA. The Company will, and will cause each of
its Subsidiaries and ERISA Affiliates to, as soon as possible and in any event
within ten days after the Company or any of its Subsidiaries or ERISA
Affiliates knows of the occurrence of any of the following, deliver to the
Agent, with sufficient copies for WestLB and each Bank, a certificate of the
chief financial officer of the Company, setting forth details as to such
occurrence and the action, if any, which the Company, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Company, such
Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant or the Plan
Administrator with respect thereto: (i) the occurrence of a Reportable Event;
(ii) the existence of an accumulated funding deficiency; (iii) the making of an
application to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
extension of any amortization period under Section 412 of the Code with respect
to a Plan; (iv) the termination, reorganization, partition or declaration of
insolvency under Title IV of ERISA of a Plan; (v) the existence of an Unfunded
Current Liability with respect to a Plan which has resulted in a lien being
imposed under ERISA or the Code with respect to the Company or any of its
Subsidiaries or ERISA Affiliates; (vi) the institution of proceedings to
terminate a Plan; (vii) the institution of a proceeding pursuant to Section 515
of ERISA to collect delinquent contributions from the Company or any of its
Subsidiaries or ERISA Affiliates; or (viii) the incurrence of any liability
(including any contingent or secondary liability) by the Company or any of its
Subsidiaries or ERISA Affiliates to or on account of the termination or
withdrawal from a Plan under Sections 4062, 4063, 4064, 4069, 4201 or 4204 of
ERISA; provided, however, that, with respect to any person (as defined in
Section 3(9) of ERISA) that is an ERISA Affiliate only within the meaning of
Section 414(m) or 414(o) of the Code, the Company need only use its best
efforts to cause such person to deliver such certificate and notices. The
Company will deliver and, with respect to any person (as defined in Section
3(9) of ERISA) that is an ERISA Affiliate only within the meaning of Section
414(m) or 414(o), will use its best efforts to obtain and deliver, to the
Agent, with sufficient copies for WestLB and each Bank, a complete copy of the
annual report (Form 5500) of each Plan required to be filed with the Internal
Revenue Service. Copies of annual reports and any notices received by the
Company, any of its Subsidiaries or any ERISA Affiliates with respect to any
Plan shall be delivered to the Agent no later than ten days after the later of
the date such report or notice has been filed with the Internal Revenue Service
or received by the Company, such Subsidiary or such ERISA Affiliate; provided,
however, that, with respect to any person (as defined in Section 3(9) of ERISA)
that is an ERISA Affiliate only within the meaning of Section 414(m) or Section
414(o) of the Code, the Company need only use its best efforts to obtain such
report or notice.
Section 7.07. Financial Statements. The Company will deliver,
or cause to be delivered, to the Agent, with sufficient copies for WestLB and
each Bank, in each case in duplicate: (i) as soon as available and in any event
within 60 days after the end of each fiscal quarterly period in each fiscal
year of the Company, a consolidated balance sheet of the Company and the
related consolidated statements of income and cash flows of the Company for
such period and for the period from the beginning of the then current fiscal
year to the end of such fiscal quarterly period, setting forth in each case
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in comparative form the figures for the corresponding periods for the previous
fiscal year, in each case certified by the chief financial officer or chief
accounting officer of the Company as fairly presenting the consolidated
financial condition of the Company as at such date and the consolidated results
of operations and cash flows of the Company for the period ended on such date,
all in accordance with generally accepted accounting principles consistently
applied, subject to normal year-end audit adjustments, (ii) as soon as
available and in any event within 120 days after the end of each fiscal year of
the Company, a consolidated balance sheet of the Company and the related
consolidated statements of income and changes in shareholders' equity and cash
flows of the Company for such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year, in each case
certified by Coopers & Lybrand L.L.P. or such other nationally recognized
independent certified public accountants acceptable to the Required Banks whose
certificate shall be reasonably satisfactory to WestLB and the Required Banks,
(iii) promptly after receipt thereof, copies of the material portion of any
detailed reports submitted to the Company or any of its Subsidiaries by its
independent accountants in connection with each annual or interim audit of the
accounts of the Company or its Subsidiaries relating to the business,
operations, condition (financial or otherwise) or prospects of the Company or
its Subsidiaries, (iv) promptly, and in any event within ten (10) days after an
officer of the Company obtains knowledge thereof, notice of any litigation or
governmental or regulatory proceedings pending against the Company or any of
its Subsidiaries which, individually or in the aggregate, would have a material
adverse effect on the business, operations, condition (financial or otherwise)
or prospects of the Company or of the Company and its Subsidiaries taken as a
whole, or otherwise pending with respect to the Bonds or any Operative
Document, (v) promptly, and in any event within ten (10) days after an officer
of the Company obtains knowledge thereof, notice of any event not otherwise
specified in clause (iv) above which, individually or in the aggregate, would
have a material adverse effect on the business, operations, condition
(financial or otherwise) or prospects of the Company or of the Company and its
Subsidiaries taken as a whole, (vi) promptly after the sending or filing
thereof, copies of all reports and registration statements (including without
limitation Forms 10-K and 10Q) which the Company sends to any of its security
holders or which the Company or any of its Subsidiaries files with Securities
and Exchange Commission or any national securities exchange, (vii) promptly
upon the written request of the Agent, WestLB or any Bank, copies of any
report, application, petition or other similar document which the Company or
any of its Subsidiaries sends to or files with the Federal Energy Regulatory
Commission or the Louisiana Public Service Commission, and (viii) such other
financial information as the Agent, WestLB or any Bank may reasonably request.
Together with each delivery of financial statements required by clauses (i) and
(ii) above, the Company shall deliver to the Agent, with sufficient copies for
WestLB and each Bank, (a) an Officer's Certificate stating that there exists no
Default or Event of Default or, if any such Default or Event of Default exists,
stating the nature thereof, the period of existence thereof and what action the
Company proposes to take with respect thereto and (b) a certificate prepared
and certified by the chief financial officer or chief accounting officer of the
Company setting forth the calculations required to establish whether the
Company is in compliance with the provisions of Sections 8.05 and 8.06 hereof
at the end of such fiscal quarter or fiscal year, as the case may be. The
Agent, WestLB and the Banks are hereby authorized to
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deliver a copy of any financial statement or other document delivered to them
pursuant to this Section 7.07 to any regulatory body having jurisdiction over
them and to any prospective Participant in their interest herein or in the
Letter of Credit.
Section 7.08. Inspection. The Company will, and will cause each
of its Subsidiaries to, permit officers and designated representatives of the
Agent, WestLB or any Bank to visit and inspect, at such Person's own expense,
any of the properties of the Company or any of its Subsidiaries, to examine the
corporate books and financial records of such entities and make copies thereof
or extracts therefrom, and to discuss the affairs, finances and accounts of any
of such entities with the principal officers and the internal and independent
accountants of such entities, all upon reasonable prior notice and during
regular business hours and as often as the Agent, WestLB or such Bank may
reasonably request.
Section 7.09. Payment of Taxes, Etc. The Company will, and will
cause each of its Subsidiaries to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, and all lawful claims which, if unpaid,
would become a Lien upon any of its properties, in each case at such time as
such taxes, assessments, governmental charges, levies or claims shall become
due and payable; provided, however, that neither the Company nor any of its
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by appropriate proceedings and
as to which appropriate reserves are being maintained in accordance with
generally accepted accounting principles.
Section 7.10. Maintenance of Property. The Company will, and
will cause each of its Subsidiaries to, keep all property that is useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted.
Section 7.11. Certain Notices. The Company will furnish to the
Agent, with sufficient copies for WestLB and each Bank, a copy of any notice,
certification, demand or other writing or communication given or received by
the Company under or in connection with the Bonds or any of the other Operative
Documents, in each case promptly after the receipt or giving of the same.
ARTICLE VIII
NEGATIVE COVENANTS
The Company covenants that, from and after the Date of Issuance
and until such time as the Letter of Credit is no longer outstanding and all
Obligations are paid in full:
Section 8.01. Consolidation, Merger, Sale of Assets, Etc. The
Company will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation,
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or convey, sell, lease or otherwise dispose of, whether in a single transaction
or a series of related transactions, more than 5% of the consolidated total
assets of the Company and its Subsidiaries as of the date of any such
conveyance, sale, lease or other disposition, to any Person, or agree to do any
of the foregoing at any future time; provided, however, that nothing contained
in this Section 8.01 shall prohibit (i) a consolidation or merger of two or
more Subsidiaries, (ii) a consolidation or merger of one or more Subsidiaries
with or into the Company, if the Company is the surviving corporation, (iii) a
consolidation or merger of another Person into the Company or a Subsidiary if
the Company or a Subsidiary is the surviving Person, (iv) the conveyance, sale,
lease or other disposition of assets of a Subsidiary to the Company or another
Subsidiary, (v) the sale or other disposition of any Subsidiary in which the
Company has made no capital investment (either by cash contribution,
contribution of assets or otherwise), (vi) sales by the Company or a Subsidiary
of its accounts receivable or other receivables or sales of undivided interests
in such accounts receivable and other receivables or (vii) the sale or other
disposition of pollution control facilities in connection with the issuance by
a governmental entity of pollution control bonds substantially all of the
proceeds of the sale of which are received by the Company.
Section 8.02. Redemption or Purchase of Bonds; Adjustment of
Interest Rate Periods. The Company will not, without the prior consent of the
Required Banks, such consent not to be unreasonably withheld, (i) take any
action to cause a redemption of any of the Bonds, (ii) take any action to cause
the Interest Rate Period (as defined in the Indenture) in respect of the Bonds
to be adjusted or otherwise changed to a Short Term Interest Rate Period or a
Long-Term Interest Rate Period (as defined in the Indenture) or (iii) take any
affirmative action to purchase, or to permit any of its Subsidiaries to
purchase, any of the Bonds.
Section 8.03. Amendment of Operative Document. The Company will
not, without the prior written consent of the Required Banks, terminate or
amend or consent to the termination or amendment of any of the terms or
provisions of the Bonds or any Operative Document.
Section 8.04. Liens. The Company will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets (real or personal, tangible or
intangible) of the Company or any of its Subsidiaries, whether now owned or
hereafter acquired, provided, however, that the provisions of this Section 8.04
shall not prevent the creation, incurrence, assumption or existence of:
(i) Liens to secure the CLECO Mortgage;
(ii) the following "permitted liens" pursuant to Section 1.04
of the CLECO Mortgage as presently in effect: (a) liens for taxes,
assessments or governmental charges not then delinquent; (b) the lien of
taxes, assessments or governmental charges due, or to become due, the
validity of which is being contested at the time by the Company in good
faith and, if necessary, by appropriate legal proceedings, provided that
the Company shall have made such provision as may be
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required by the trustee under the CLECO Mortgage for the payment of any
amount or the giving of such security as shall be required to prevent
the loss or forfeiture of any of the mortgaged and pledged property, and
for the payment of the amount of any such taxes, assessments or
governmental charges as shall ultimately be determined to be due and
payable; (c) any liens, the Indebtedness secured by which has not been
assumed by the Company and on which it does not customarily pay interest
charges, existing upon real estate or rights in or relating to real
estate acquired by the Company for substation, transmission lines,
distribution lines, pipelines, water mains, or right-of-way purposes or
for storeroom or service buildings incidental to any of the foregoing;
(d) rights reserved to or vested in any municipality or public authority
by the terms of any right, power, franchise, grant, license, permit or
by any provision of law to terminate such right, power, franchise,
grant, license or permit or to purchase, condemn or recapture or to
designate a purchaser of any of the property of the Company; (e) leases,
easements, restrictions, exceptions or reservations in any property of
the Company created at or before the acquisition thereof by the Company
for the purpose of roads, water mains, pipe lines, transmission lines,
distribution lines or for the joint or common use of real property and
equipment and other like purposes, and other minor defects and
irregularities of title in any property, in any case which do not
materially impair the use of such property in the operation of the
business of the Company or which the Company itself has power to cure by
appropriate legal proceedings; (f) rights reserved to or vested in any
municipality or public authority to use or control or regulate any
property of the Company; (g) any obligations or duties affecting the
property of the Company to any municipality or public authority with
respect to any franchise, grant, license or permit; (h) undetermined
liens and charges incidental to construction, except such as may result
from any delinquent obligation of the Company for the payment of money
on account of such construction; (i) funded liens; or (j) obligations
arising under agreements or otherwise relating to the ownership by the
Company of an undivided interest in real or personal property;
(iii) Liens on any property acquired, constructed or improved by
the Company or any of its Subsidiaries after the date of this Agreement
which are created or assumed contemporaneously with, or within 120 days
after, such acquisition or completion of such construction or
improvement, or within six months thereafter pursuant to a firm
commitment for financing arranged with a lender or investor within such
120-day period, to secure or provide for the payment of all or any part
of the purchase price of such property or the cost of such construction
or improvement incurred after the date of this Agreement, or, in
addition to Liens contemplated by clauses (iv) and (v) below, Liens on
any property existing at the time of acquisition thereof, provided that
the Liens shall not apply to any property theretofore owned by the
Company or any of its Subsidiaries other than, in the case of any such
construction or improvement, any theretofore unimproved real property on
which the property so constructed or the improvement is located;
(iv) existing Liens on any property or indebtedness of a
corporation which is merged with or into or consolidated
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with the Company or any of its Subsidiaries;
(v) Liens on property or indebtedness of a corporation
existing at the time such corporation becomes a Subsidiary of the
Company;
(vi) Liens to secure Indebtedness of a Subsidiary to the
Company or to another of its Subsidiaries;
(vii) Liens in favor of the United States of America, any state,
any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any Indebtedness incurred for the purpose of financing all
or any part of the purchase price of the cost of constructing or
improving the property subject to such Liens, including, without
limitation, Liens to secure pollution control or industrial revenue bond
type Indebtedness;
(viii) Liens to secure sales by the Company or any of its
Subsidiaries of accounts receivable or other receivables or sales of
undivided interests in such accounts receivable and other receivables
provided that such liens apply only to such accounts receivable and the
related security;
(ix) Liens on any property (including any natural gas, oil or
other mineral property) to secure all or part of the cost of
exploration, drilling or development thereof or to secure Indebtedness
incurred to provide funds for any such purpose;
(x) Liens existing on the date of this Agreement and set forth
on Schedule II attached hereto;
(xi) Liens consisting of (a) pledges or deposits in the
ordinary course of business to secure obligations under worker's
compensation laws or similar legislation, including liens of judgments
thereunder which are not currently dischargeable, (b) deposits in the
ordinary course of business to secure, or in lieu of, surety, appeal, or
customs bonds to which the Company is a party, (c) Liens created by or
resulting from any litigation or legal proceeding which is currently
being contested in good faith by appropriate proceedings diligently
conducted, (d) pledges or deposits in the ordinary course of business to
secure performance in connection with bids, tenders or contracts (other
than contracts for the payment of money) or (e) materialmen's,
mechanics', carriers', worker's, repairmen's or other like liens
incurred in the ordinary course of business for sums not yet due or
currently being contested in good faith by appropriate proceedings
diligently conducted, or deposits to obtain the release of such liens;
(xii) Liens for the sole purposes of extending, renewing or
replacing in whole or in part Indebtedness secured by any
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Lien referred to in the foregoing clauses (i) to (xi), inclusive, or
this clause (xii); provided, however, that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or
replacement plus the amount of any redemption or repurchase premiums
incurred in retiring such Indebtedness, and that such extension, renewal
or replacement shall be limited to all or a part of the property or
indebtedness which secured the Lien so extended, renewed or replaced
(plus improvements on such property); and
(xiii) Liens not otherwise permitted by foregoing clauses (i) to
(xii), inclusive, to the extent such Liens encumber, in the aggregate,
no more than 5% of Consolidated Net Tangible Assets.
Section 8.05. Interest Coverage Ratio. The Company will not
permit the ratio of EBITDA to Consolidated Interest Expense at any time
(determined in each instance using the most recently completed 12-month period
for which the relevant financial information is available) to be less than 2.00
to 1.00.
Section 8.06. Tangible Net Worth Ratio. The Company will not,
at any time, permit Consolidated Tangible Net Worth to be less than 35% of
Total Capitalization.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default. If any of the following events
(each an "Event of Default") shall occur and be continuing:
(i) any representation or warranty made by the Company in this
Agreement or in any of the other Operative Documents or in any writing
furnished in connection with or pursuant to this Agreement or any other
Operative Document shall be false or incomplete in any material respect
when made or deemed made; or
(ii) the Company shall fail to make any payment required to be
made by it when due hereunder (including, without limitation, pursuant
to Article II or Article III hereof) or under any or the Operative
Documents; or
(iii) the occurrence of an "event of default" as described and
defined in the Indenture or the Refunding Agreement; or
(iv) the occurrence of an "event of default" as described and
defined in either of the Other Reimbursement Agreements; or
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(v) the Company shall fail to perform or observe any of the
terms of Article VIII hereof; or
(vi) the Company shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any of the
Operative Documents on its part to be performed or observed and (a) with
respect to any such term, covenant or agreement contained herein, any
such failure remains unremedied for 30 days, and (b) with respect to any
such term, covenant or agreement contained in any of the other Operative
Documents, any such failure remains unremedied after any applicable
grace period specified in such Operative Document; or
(vii) any material provision of the Bonds, this Agreement or any
other Operative Document shall at any time for any reason cease to be
valid and binding on any party hereto or thereto (other than the Agent,
WestLB or any Bank), or shall be declared to be null and void, or any
such party (other than the Agent, WestLB or any Bank) shall contest the
validity or enforceability thereof, or the Company shall deny that it
has any further liability or obligation with respect to the Bonds, this
Agreement or any other Operative Document to which it is a party; or
(viii) the Company or any of its Subsidiaries shall default in
any payment of principal of or premium, if any, or interest on any
Indebtedness of the Company or such Subsidiary (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) having
an original aggregate principal amount in excess of $5,000,000, and such
default shall continue beyond any period of grace provided with respect
thereto, or the Company or any of its Subsidiaries shall default in the
performance or observance of any other agreement, term or condition
contained in any agreement under which any such Indebtedness is created
(or if any other event of default thereunder or under such agreement
shall occur and be continuing) and the effect of any such default is to
cause, or as a result thereof the holder or holders of such obligation
(or a trustee on behalf of such holder or holders) shall have caused or
shall be entitled to cause, such obligation to become due prior to the
stated maturity thereof; or
(ix) the Company or any of its Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law commences a voluntary case,
admits in writing its inability to pay its debts generally as they
become due, consents to the appointment of a Custodian of it or for all
or substantially all of its property or makes a general assignment for
the benefit of its creditors; or has an involuntary case filed against
it, or a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that is for relief against the Company or any of its
Subsidiaries in an involuntary case, appoints a Custodian of the Company
or any of its Subsidiaries for all or substantially all of its property
or orders the liquidation of the Company or any of its Subsidiaries, and
such involuntary case, order or decree remains unstayed and in effect
for more than 60 days; or
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(x) with respect to any Plan, other than a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA, (a) such Plan shall
fail to satisfy the minimum funding standard or a waiver of such
standard or extension of any amortization period is sought under Section
412 of the Code; (b) such Plan is or is proposed to be terminated and as
a result thereof liability in excess of $5,000,000 can be asserted under
Title IV of ERISA as against the Company or any Subsidiary; (c) such
Plan shall have an Unfunded Current Liability in excess of $5,000,000;
or (d) there has been a withdrawal from any such Plan and as a result
liability in excess of $5,000,000 can be asserted under Section 4062(e)
or 4063 of ERISA against the Company or any Subsidiary; or, with respect
to any Plan that is a multiemployer plan under Section 4001(a)(3) of
ERISA, such Plan is insolvent or in reorganization or the Company or any
ERISA Affiliate has withdrawn, or proposes to withdraw, either totally
or partially, from such Plan and, in any case, in the opinion of the
Required Banks, the Company or any Subsidiary might reasonably be
anticipated to incur a liability which would have a material adverse
effect on the business, operations, conditions (financial or otherwise)
or prospects of the Company or the Company and Subsidiaries taken as a
whole; or
(xi) one or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability (not covered by insurance) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, satisfied,
discharged or stayed or bonded pending appeal within 30 days from the
entry thereof;
then, and in any such event, the Agent may and, upon the written request of the
Required Banks, shall, without prejudice to the rights of the Agent, WestLB or
any Bank, (i) by notice to the Company, declare all amounts payable by the
Company hereunder (including, without limitation, all amounts payable pursuant
to Article II and Article III hereof) to be forthwith due and payable, and the
same shall thereupon become due and payable without demand, presentment,
protest or further notice of any kind, all of which are hereby expressly
waived, and/or (2) with respect to any undrawn amount under the Letter of
Credit, require that the Company place with the Agent a collateral deposit
which shall be, in the opinion of Bond counsel chosen by the Company and
acceptable to the Agent, invested by the Agent in a manner which does not
violate Section 148 of the Code, to secure repayment to the Banks by the
Company of any drawings under the Letter of Credit and/or (3) exercise any or
all of its rights and remedies under the Operative Documents and/or (4) by
notice to the Trustee, require the Trustee to accelerate payment of all of the
Bonds and interest accrued thereon as provided in Section 9.01 of the
Indenture; provided that if an Event of Default described in clause (ix) of
this Section 9.01 shall occur and be continuing, all amounts payable by the
Company hereunder shall become immediately due and payable, without written
notice and without presentment, protest or any other notice of any kind, all of
which are hereby expressly waived.
Section 9.02. No Remedy Exclusive. No remedy herein conferred
or reserved is intended to be exclusive of any other available
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remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Agreement or under
any of the other Operative Documents, whether now or hereafter existing at law
or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default, omission or failure of performance hereunder
shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to time and as
often as may be deemed expedient. In order to exercise any remedy reserved to
the Agent, WestLB or any Bank in this Agreement, it shall not be necessary to
give any notice, other than such notice as may be herein expressly required or
required by applicable law. In the event any provision contained in this
Agreement should be breached by any party and thereafter duly waived by the
other party or parties so empowered to act, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder. No waiver, amendment, release or modification or this Agreement
shall be established by conduct, custom or course of dealing, but solely by an
instrument in writing duly executed by the party or parties "thereto duly
authorized by this Agreement.
ARTICLE X
THE AGENT
Section 10.01. The Agent. The Banks hereby designate
Westdeutsche Landesbank Girozentrale, New York Branch, as agent to act as
specified herein and in the other Operative Documents. Each Bank hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of this Agreement, the other Operative Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are-reasonably incidental thereto. The Agent may perform any
of its duties hereunder by or through its officers, directors, agents or
employees.
Section 10.02. Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. Neither
the Agent nor any of its officers, directors, agents or employees shall be
liable for any action taken or omitted by it or them hereunder or under any
other Operative Document or in connection herewith or therewith, unless caused
by its or their gross negligence or willful misconduct as determined by a
final, non-appealable order of a court of competent jurisdiction. The duties
of the Agent shall be mechanical and administrative in nature, and the Agent
shall not have by reason of this Agreement or any other Operative Document a
fiduciary relationship in respect of any Bank. Nothing in this Agreement or
any other Operative Document, expressed or implied, is intended to or shall be
so construed as to impose upon the Agent any obligations in respect of this
Agreement or any other Operative Document except as expressly set forth herein.
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Section 10.03. Investigation by Banks. Independently and
without reliance upon the Agent, each Bank, to the extent it deems appropriate,
has made and shall continue to make (i) its own independent investigation of
the financial condition and affairs of the Company and the transactions
contemplated herein, in each case in connection with the making and the
continuance of the LC Commitments and the Advances and the taking or not taking
of any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Company and the transactions referred to in clause (i)
above and, except as expressly provided in this Agreement, the Agent shall have
no duty or responsibility, either initially or on a continuing basis, to
provide any Bank with any credit or other information with respect thereto,
whether coming into its possession before the effectiveness of this Agreement
or at any time or times thereafter. The Agent shall not be responsible to any
Bank for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Operative Document or the financial condition of the
Company or any other Person or be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement or any other Operative Document, or the financial
condition of the Company or any other Person or the existence or possible
existence of any Default or Event of Default.
Section 10.04. Instructions. If the Agent shall request
instructions from WestLB, the Banks or the Required Banks, as applicable, with
respect to any act or action (including failure to act) in connection with the
Letter of Credit, this Agreement or any other Operative Document, the Agent
shall be entitled to refrain from such act or taking such action unless and
until the Agent shall have received instructions from WestLB, the Banks or the
Required Banks, as applicable, and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Bank
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder or under any other Operative
Document in accordance with the instructions of WestLB, the Banks or the
Required Banks, as applicable.
Section 10.05. Reliance by the Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made by any Person that the Agent believed to be the
proper Person, and, with respect to all legal matters pertaining to this
Agreement and any other Operative Document and its duties hereunder and
thereunder, upon advice of counsel selected by it.
Section 10.06. Indemnification. To the extent the Agent is not
reimbursed and indemnified by the Company, the Banks will reimburse and
indemnify the Agent, in proportion to their respective LC Commitments (or, if
the Letter of Credit is no longer outstanding, in proportion to their
respective LC Commitments
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immediately prior to the expiration or other termination of the Letter of
Credit), for and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Agent in performing its duties hereunder or under any other
Operative Document, or in any way relating to or arising out of this Agreement
or any other Operative Document; provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
Section 10.07. Agent as a Bank. The Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein, and the
term "Banks", "Required Banks" or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity. The
Agent may accept deposits from, lend money to, and generally engage in any kind
of banking, trust or other business with the Company or any Subsidiary or
Affiliate of the Company to the same extent as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Company or any such Subsidiary or Affiliate for services in connection with
this Agreement and otherwise without having to account for the same to any of
the Banks.
Section 10.08. Resignation by the Agent. (i) The Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Operative Documents at any time by giving 15 Business Days'
prior written notice to the Company and the Banks. Such resignation shall take
effect upon the appointment of a successor Agent pursuant to clauses (ii) and
(iii) below or as otherwise provided below.
(ii) Upon any such notice of resignation, the Required Banks
shall appoint a successor Agent hereunder or thereunder which shall be a
commercial bank or trust company reasonably acceptable to the Company.
(iii) If a successor Agent shall not have been so appointed
within such 15 Business Day period, the Agent may then appoint a
successor Agent who shall serve as Agent hereunder or thereunder until
such time, if any, as the Required Banks appoint a successor Agent as
provided above.
(iv) If no successor Agent has been appointed pursuant to
clause (ii) or (iii) above by the 20th Business Day after the date such
notice of resignation was given by the Agent, the Agent's resignation
shall become effective and the Banks shall thereafter perform all the
duties of the Agent hereunder and/or under any other Operative Document
until such time, if any, as the Required Banks appoint a successor Agent
as provided above.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Amendments, Etc. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall obtain the
written consent of the Required Banks, provided that without the consent of
each Bank no such action or omission shall (i) extend the Termination Date of
the Letter of Credit or the final maturity of any Advance, or reduce the rate
or extend the time of payment of interest on any Advance, or reduce the
principal amount of any Advance, or reduce the rate or extend the time of
payment of any fees payable for the benefit of the Banks, or increase the LC
Commitment of any Bank (it being understood that a waiver of any Event of
Default shall not constitute a change in the terms of any LC Commitment of any
Bank, and it being further understood that the LC Commitment of each Bank may
be automatically adjusted pursuant to Section 2.02 hereof), (ii) amend, modify
or waive any provision of this Section 11.01 or Sections 3.05, 3.06, 10.06,
11.03, 11.05, 11.07 or 11.16, (iii) reduce the percentage specified in the
definition of Required Banks, or (iv) consent to the assignment or transfer by
the Company of any of its rights and obligations under this Agreement or any
other Operative Document to which it is a party; provided that no amendment,
waiver or consent shall, unless in writing and signed by the Agent in addition
to the Banks required above to take such action, affect the rights or duties of
the Agent under this Agreement; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by WestLB in addition to
the Banks required above to take such action, affect the rights or duties of
WestLB under this Agreement or the Letter of Credit.
Section 11.02. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including facsimile
communication, receipt of which is confirmed in writing) and shall be sent by
mail (postage prepaid return receipt requested), hand delivery or fax (i) if to
the Company, to it at P.O. Box 5000, Pineville, Louisiana 71361, Attention:
Treasurer, telecopy no. (318) 484-7465; (ii) if to the Agent, to it at the
offices of Westdeutsche Landesbank Girozentrale, New York Branch, 1211 Avenue
of the Americas, New York, New York 10036, Attention: Loan Operations,
telecopy number (212) 302-7946; (iii)if to WestLB, as issuer of the Letter of
Credit, or to Westdeutsche Landesbank Girozentrale, New York Branch, as a Bank
hereunder, to it at the offices of Westdeutsche Landesbank Girozentrale, New
York Branch, 1211 Avenue of the Americas, New York, New York 10036, Attention:
Trade Services, telecopy number (212) 768-4659; and (iv) if to any Bank (other
than Westdeutsche Landesbank Girozentrale, New York Branch), to it at its
address and telecopy number set forth opposite its signature below; or as to
any party at such other address or telecopy number as shall be designated by
such party in a written notice to all other parties hereto; provided that any
such communication to the Company may also, at the option of the Person
delivering such communication, be either delivered to the Company at its
address set forth above or to any officer of the Company. All such notices and
other communications shall be effective when received.
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Section 11.03. Set-off. In addition to any rights now or
hereafter granted under applicable law (including, but not limited to, Section
151 of the New York Debtor and Creditor Law) and not by way of limitation of
any such rights, during the continuance of any Event of Default hereunder each
Bank is hereby authorized at any time and from time to time, without notice to
the Company or to any other Person, any such notice being hereby expressly
waived, to set-off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by WestLB or
such Bank to or for the credit or the account of the Company against and on
account of any Obligation or liability of the Company owing to SBC or the Banks
under this Agreement and/or the Letter of Credit at the time, including,
without limitation, all claims of any nature or description arising out of or
in connection with this Agreement and/or the Letter of Credit, irrespective of
whether or not the Agent, WestLB or any Bank shall have made any demand
hereunder.
Section 11.04. Indemnification. The Company hereby agrees to
protect, indemnify, pay and save the Agent, WestLB and each Bank harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including without limitation reasonable attorneys' fees)
which such indemnified Person may incur or be subject to as a consequence,
direct or indirect, of (i) the execution and delivery of this Agreement or the
issuance of the Letter of Credit, other than as a result of the gross
negligence or willful misconduct of such indemnified Person, (ii) the failure
of WestLB to honor a drawing under the Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto government or governmental authority (all such acts or omission herein
called "Government Acts"), (iii) any breach by the Company, the Issuer, the
Tender Agent, the Remarketing Agent or any other Person of any warranty,
covenant, term or condition in, or the occurrence of any default under, this
Agreement, any other Operative Document or the Bonds, together with all
reasonable expenses resulting from the compromise or defense of any claims or
liabilities arising as a result of any such breach or default, (iv) any
inaccuracy or alleged inaccuracy, or any untrue statement or alleged untrue
statement, contained in the Preliminary Official Statement or the Reoffering
Supplement, which includes, as an attachment thereto, the Official Statement,
or by reason of the omission or alleged omission to state therein any fact
necessary to make such statements, in light of the circumstances under which
they were made, not misleading (provided that this Section 11.04 shall not
apply to any information contained in the Reoffering Supplement under the
caption "WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH" or in the
Preliminary Official Statement or the Official Statement under the caption
"SWISS BANK CORPORATION, NEW YORK BRANCH") and (v) the defense against any
legal action challenging the validity of any of the above referenced agreements
or instruments. Nothing in this Section 11.04 is intended to limit the
reimbursement or other obligations hereunder of the Company. The obligations
of the Company under this Section 11.04 shall survive the payment of the Bonds
and the termination of this Agreement.
Section 11.05. Benefit of Agreement. This Agreement is a
continuing obligation and shall (i) be binding upon the Company and
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its successors and assigns and (ii) inure to the benefit of and be enforceable
by the parties hereto and their respective successors and permitted assigns;
provided, however, that the Company may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of WestLB and
all of the Banks, and, provided further, that, although any Bank may grant
participations in its rights hereunder and under the Letter of Credit, such
Bank shall remain a "Bank" for all purposes hereunder, the Participant shall
not constitute a "Bank" hereunder, the Company shall continue to deal solely
with the Agent and such Bank (and not with any Participant) hereunder and with
respect to this Agreement and the Letter of Credit and no such participation
shall relieve WestLB of its obligations under the Letter of Credit.
In the case of any such participation, the Participant shall not
have any rights under this Agreement or any of the other Operative Documents
(the Participant's rights against such transferring Bank to be those set forth
in the agreement executed by such Bank in favor of the Participant relating
thereto) and all amounts payable by the Company hereunder shall be determined
as if such Bank had not sold such participation, except that the Participant
shall be entitled to the benefits of Sections 2.09 and 2.10 hereof as set forth
therein. In connection with any such participation, the Bank proposing to
transfer or grant such participation may disclose to the proposed Participant
any information that the Company is required to deliver to such Bank pursuant
to this Agreement or otherwise delivers to such Bank in connection with such
Bank's credit review or continuing review of the Company and this Agreement,
provided, however, that, prior to any such disclosure, each such Participant
shall agree in writing to preserve the confidentiality of any confidential
information relating to the Company or any of its Subsidiaries received from
such Bank.
Notwithstanding the foregoing, any Bank may transfer the LC
Commitment or any Advance of such Bank to another Bank or to another branch or
lending office or, with the written consent of WestLB and the Agent (such
consent not to be unreasonably withheld), an Affiliate of such Bank; provided
that each such Bank agrees that it will use its reasonable efforts (subject to
overall policy considerations of such Bank) to avoid the occurrence of any event
giving rise to the operation of Sections 2.09 and 2.10 hereof as a result of any
such transfer.
Neither WestLB nor any Bank may assign all or any portion of its
rights and obligations hereunder to one or more banks or other financial
institutions, unless (i) WestLB and the Company each shall have given its prior
written consent to such assignment (such consent not to be unreasonably
withheld) and (ii) such assignment shall be consummated pursuant to an
assignment and acceptance agreement reasonably satisfactory to the Agent (such
agreement to state, among other things, that upon the effectiveness of such
assignment, the transferee entity shall become a "Bank" hereunder for all
purposes of this Agreement). Upon the effectiveness of any such assignment, the
transferee entity shall become a "Bank" hereunder for all purposes of this
Agreement and Schedule I attached hereto shall be amended by the Agent to
reflect the new LC Percentage of each Bank after giving effect to such
assignment (which amended Schedule I shall be promptly delivered by the Agent to
the Company, WestLB and each Bank, provided that the failure to deliver or
prepare such amended
40
<PAGE> 45
Schedule I shall in no event affect the validity of such assignment or the
respective LC Percentages resulting therefrom).
Section 11.06. Liability of Parties. The Company assumes all
risks of the acts or omissions of the Trustee and any transferee of the Letter
of Credit with respect to its use of the Letter of Credit. Neither the Agent,
WestLB nor Bank, nor any of their respective officers or directors, shall be
liable or responsible for: (i) the use which may be made of the Letter of
Credit or for any acts or omissions of the Trustee or any transferee of the
Letter of Credit in connection therewith; (ii) the form, validity, sufficiency
or genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (iii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign the
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(iv) failure of the Trustee to comply fully with the conditions required in
order to draw upon the Letter of Credit; (v) errors, omission, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegram,
telex or otherwise, whether or not they be in cipher; (vi) errors in
interpretation of technical terms; (vii) any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under the
Letter of Credit or of the proceeds thereof; (viii) any misapplication by the
Trustee of the proceeds of any drawing under the Letter of Credit; or (ix) any
consequences arising from causes beyond the control of the Agent, WestLB or any
Bank, including, without limitation, any Government Acts. None of the above
shall affect, impair, or prevent the vesting of any of the Agent's, WestLB's or
any Bank's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by the
Agent, WestLB or any Bank under or in connection with this Agreement or the
Letter of Credit or the related certificates attached thereto, if taken or
omitted in good faith, shall not put the Agent, WestLB or any Bank under any
resulting liability to the Company, and the Agent, WestLB and each Bank may
accept any documents or instruments that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
any information to the contrary.
The obligations of the Company under this Section 11.06 shall
survive the payment of the Bonds and the termination of this Agreement.
Notwithstanding anything to the contrary contained in this
Section 11.06, the Company shall have no obligation to indemnify the Agent,
WestLB or any Bank in respect of any liability incurred by such Person arising
solely out of the gross negligence or willful misconduct of such Person or the
wrongful dishonor by WestLB of a proper demand made under the Letter of Credit.
41
<PAGE> 46
Section 11.07. Expenses, Etc. The Company agrees to pay on
demand (i) all costs and out-of-pocket expenses incurred by WestLB or the Agent
in connection with the preparation, execution, issuance, delivery and
administration of this Agreement, the Letter of Credit and the other Operative
Documents, including, without limitation, the reasonable fees and disbursements
of outside counsel and the allocated time charges and disbursements of internal
counsel for the Agent and WestLB, and of counsel for the Banks with respect
thereto, and (ii) all costs and out-of-pocket expenses, including, without
limitation, the reasonable fees and disbursements of outside counsel and the
allocated time charges and disbursements of internal counsel to the Agent,
WestLB and the Banks with respect thereto, in connection with the enforcement
or preservation of any rights under this Agreement, the Letter of Credit or any
other Operative Document or any modifications, amendments, consents or waivers
or similar occurrences relating to or in respect of this Agreement, the Letter
of Credit or any other Operative Document. In addition, the Company shall pay
any and all stamp and other taxes (other than any franchise or income taxes)
and fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Agreement, the Letter of Credit or any
other Operative Document and agrees to save the Agent, WestLB and the Banks
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes, fees and expenses
referred to in this sentence and in the immediately preceding sentence. The
Company also agrees to indemnify, defend and hold the Agent, WestLB and each
Bank harmless from and against all liability "including, without limitation,
interest, penalties and all reasonable fees and disbursements of counsel) to
which any such Person may become subject insofar as such liability arises out
of or is based upon any action, suit, proceeding or investigation or
governmental action brought or taken in connection with the Project or the use
(or the proposed or potential use) of the proceeds of any drawing under the
Letter of Credit. A request for payment under this Section 11.07 shall be
accompanied by supporting documentation thereof, identifying with reasonable
specificity the basis for and the amount of such costs and expenses.
Section 11.08. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
Section 11.09. Consent to Jurisdiction. The Company irrevocably
(i) agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Letter of Credit may be brought by or on
behalf of the Agent, WestLB or any Bank in a court of record in the State of
New York or in the Courts of the United States of America located in such
State, (ii) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (iii) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts
and any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. The Company hereby irrevocably appoints CT Corporation
System (the "Process Agent") with an office on the date hereof at 1633
Broadway, New York, New York 10019 as its agent to receive on behalf of the
Company and its property service of copies of the summons and complaint and any
42
<PAGE> 47
other process which may be served in any such suit, action or proceeding. Such
service may be made by mailing or delivering a copy of such process to the
Company, in care of the Process Agent at the Process Agent's above address, and
the Company hereby irrevocably authorizes and directs the Process Agent to
accept such service on its behalf. The Agent agrees to mail to the Company at
its address provided in Section 11.02 hereof a copy of any summons, complaint
or other process mailed or delivered by it to the Company in care of the
Process Agent. As an alternate method of service, the Company also irrevocably
consents to the service of any and all process in any such suit, action or
proceeding by mailing of copies of such process to the Company at its address
provided in Section 11.02 hereof. The Company agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
All mailings under this Section shall be by certified mail, return receipt
requested. Nothing in this Section 11.09 shall affect the right of the Agent,
WestLB or any Bank to serve legal process in any other manner permitted by law
or affect the right of the Agent, WestLB or any Bank to bring any suit, action
or proceeding against the Company or its property in the courts of any other
jurisdiction.
SECTION 11.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SAID
STATE.
SECTION 11.11. Headings, Etc. Section headings, the table of
contents and the cover page of this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
Section 11.12. Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Operative
Document or made in writing by the Company in connection herewith or therewith
shall survive the execution and delivery of this Agreement.
Section 11.13. Survival of Indemnities. All indemnities set
forth herein including, without limitation, in Sections 2.09, 2.10, 10.06,
11.04 and 11.07 shall survive the execution and delivery of this Agreement and
the repayment in full of all Obligations.
Section 11.14. Satisfaction Requirement. (i) If any agreement,
certificate or other writing, or any action taken or to be taken, is by the
terms of this Agreement required to be satisfactory to the Agent, WestLB or any
Bank, the determination of such satisfaction shall be made by the Agent, WestLB
or such Bank in its sole and exclusive judgment exercised in good faith.
(ii) For purposes of determining compliance with the conditions
specified in Article V hereof, each of the Banks shall be deemed to have
consented to, approved or accepted or to be satisfied with all matters required
43
<PAGE> 48
there under to be consented to or acceptable or satisfactory to the Banks
unless an officer of the Agent responsible for the transactions contemplated by
this Agreement and holding the position of Vice President or a more senior
position shall have received notice from any such Bank prior to the issuance of
the Letter of Credit specifying such Bank's objections thereto and such
objections shall not have been with drawn by notice to the Agent to that
effect.
Section 11.15. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States in conformity with those
used in the preparation of the financial statements of the Company referred to
in Section 7.07 hereof.
Section 11.16. Calculations. The financial statements to be
furnished to the Agent, WestLB and the Banks pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto). All calculations and computations required to
determine compliance with Sections 8.05 and 8.06 hereof shall utilize
accounting principals and policies in conformity with those used to prepare the
financial statements referred to in Section 6.08(i) hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers "hereunto duly
authorized as of the date first above written.
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
By /s/ THOMAS J. HOWLIN
---------------------------------
Name: Thomas J. Howlin
Title: Sr. V.P. Finance and CFO
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
YORK BRANCH,
individually, as Agent and as issuer of the Letter of Credit
By /s/ CYNTHIA M. NIESEN
---------------------------------
Name: Cynthia M. Niesen
Title: Managing Director
By /s/ KAREN E. GAREIS
---------------------------------
Name: Karen E. Gareis
Title: Vice President
44
<PAGE> 49
WACHOVIA BANK
By /s/ DAVID K. ALEXANDER
---------------------------------
Name: David K. Alexander
Title: Senior Vice President
45
<PAGE> 1
EXHIBIT 10(m)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
401(k) SAVINGS AND INVESTMENT PLAN
STOCK
TRUST AGREEMENT
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE
- -------
<S> <C> <C>
FIRST: ACCEPTANCE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECOND: INVESTMENT POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
THIRD: PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
FOURTH: ADMINISTRATIVE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
FIFTH: INSURANCE COMPANY CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SIXTH: FIDUCIARY STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SEVENTH: PROHIBITION OF DIVERSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
EIGHTH: HOLD HARMLESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
NINTH: ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TENTH: COMMITTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ELEVENTH: COMPENSATION AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TWELFTH: RESIGNATION OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
THIRTEENTH: AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
FOURTEENTH: TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
FIFTEENTH: PLAN-TO-PLAN TRANSFERS; ROLLOVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SIXTEENTH: ADOPTING EMPLOYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SEVENTEENTH: ALIENATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EIGHTEENTH: BOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
NINETEENTH: SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TWENTIETH: COMMUNICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TWENTY-FIRST: GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
<PAGE> 3
STOCK TRUST AGREEMENT
WHEREAS, the Central Louisiana Electric Company, Inc. 401(k) Savings
and Investment Plan, hereinafter referred to as the "Plan," was initially
established with an effective date of January 1, 1985, by Central Louisiana
Electric Company, Inc., hereinafter referred to as the "Company," for the
purpose of providing retirement and related benefits to eligible employees of
the Company and their beneficiaries, hereinafter referred to as "Participants";
and
WHEREAS, the Company amended and restated the Plan, effective April 2,
1991, to include an employee stock ownership plan, hereinafter referred to as
an "ESOP" within the meaning of Section 4975(e)(7) of the Internal Revenue Code
of 1986, as amended, hereinafter referred to as the "Code," and designed to
meet the requirements of Section 4975(d)(3) of the Code, for the purpose of
investing primarily in shares of convertible preferred or common stock of the
Company qualifying as employer securities within the meaning of Section 409(1)
of the Code; and
WHEREAS, the Plan Committee, the members of which are "named
fiduciaries" as defined in the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), (which named fiduciaries are hereinafter referred to as
the "Committee") has general responsibility for administration of the Plan; and
WHEREAS, the Plan calls for the establishment of a trust to which
contributions are to be made by the Company to be held by the Trustee and to be
managed, invested and reinvested for the exclusive benefit of Participants of
the Plan and their beneficiaries; and
WHEREAS, the Plan and trust are intended to qualify as a plan and
trust which meet the applicable requirements of Sections 401(a) and 501(a) of
the Code; and
WHEREAS, on January 1, 1985, the Company entered into an agreement of
trust with Merrill Lynch Trust Company, a corporation organized and existing
under the laws of the State of New Jersey, having its principal place of
business at Somerset, NJ, which has been removed or has resigned as trustee;
and
WHEREAS, on April 2, 1991, the Company, in order to effectuate the
ESOP component of the Plan, entered into an agreement of trust with State
Street Bank and Trust Company, a Massachusetts trust company with its principal
place of business in Boston, Massachusetts, which
<PAGE> 4
has been removed or has resigned as trustee; and
WHEREAS, effective August 1, 1997, the Company wishes to combine and
restate as one the two agreements of trust, hereinafter referred to as the
"Trust" in their entirety and appoint UMB Bank, N.A., a national banking
association, having its principal place of business at Kansas City, Missouri,
hereinafter referred to as the "Trustee"; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Company and the Trustee do hereby covenant and
agree as follows:
FIRST: Acceptance of Property. The Trustee shall accept such cash
and other property as is tendered to it as contributions hereunder, and as is
acceptable to it, hereinafter referred to as the "Trust Fund," but shall not be
under any duty to require the Company or any other adopting employer to
contribute to the Trust Fund or to determine whether the amount of any
contribution has been correctly computed under the terms of the Plan. In no
event shall the Trustee be considered a party to the Plan. The Trustee shall
have only such duties with respect to the Plan as are set forth in this
Agreement.
SECOND: Investment Powers. The Trustee shall invest the assets of the
Trust Fund as directed by the Plan Administrator, Company or Committee, in
accordance with the provisions of the Plan. In doing so, the Trustee will be a
directed trustee. Trust investments may include, without limitation, employer
securities, as that term is defined in section 407(D) of ERISA, without regard
to limitations imposed by Section 407(A) of ERISA, and any fund created for the
collective investment of the assets of employee benefit trusts, as long as such
collective investment fund is a qualified trust under the applicable provisions
of the Code (and while any portion of the trust fund is so invested, such
collective investment fund shall constitute a part of the plan, and the
instruments creating such fund shall constitute a part of this agreement). The
Trustee shall have no independent investment duties or responsibilities. The
Trustee assumes no financial responsibility with respect to the investment of
the assets of the Trust Fund. The Trustee will have no liability for properly
carrying out such investment directions and will have no liability for any loss
or diminution in value occasioned thereby unless due to the Trustee's
2
<PAGE> 5
own negligence or willful misconduct.
To the maximum extent permitted by law, the Trustee shall not be
liable for the acquisition, retention or disposition of any assets of the Trust
Fund or for any loss to or diminution of such assets unless due to the
Trustee's own negligence or willful misconduct.
The Committee may appoint an "investment manager," as defined in
Section 3(38) of ERISA. Any investment manager so appointed shall be (i) an
investment adviser registered as such under the Investment Advisers Act of
1940, (ii) a bank, or (iii) an insurance company qualified to perform
investment management services under the laws of more than one state of the
United States. The Committee shall notify the Trustee of any such appointment
by delivering to the Trustee an executed copy of the instrument under which the
investment manager is appointed and evidencing the investment manager's
acceptance of such appointment, an acknowledgment by the investment manager
that it is a fiduciary of the Plan, and a certificate evidencing the investment
manager's current registration under the Investment Advisers Act of 1940 or
other appropriate qualification. The Committee shall specify to the Trustee
the portion of the Trust Fund which shall be subject to such investment
management. The Trustee shall invest and reinvest the portion of the Trust
Fund subject to such investment management only to the extent and in the manner
directed by the investment manager in writing. During the term of such
appointment, the Trustee shall have no liability for the acts or omissions of
such investment manager, and except as provided in the preceding sentence,
shall be under no obligation to invest or otherwise manage the portion of the
Trust Fund subject to such investment management. The Trustee may maintain
separate accounts within the Trust Fund for the assets of the Trust Fund
subject to such investment management. The Committee may terminate its
appointment of an investment manager at any time and shall notify the Trustee
in writing of such termination. To the maximum extent permitted by ERISA, the
Trustee shall be protected in assuming that the appointment of an investment
manager remains in effect until it is otherwise notified in writing by the
Committee.
3
<PAGE> 6
In the event that the investment manager appointed hereunder is a bank
or a trust company, or an affiliate of a bank or a trust company, the Trustee
shall, upon the direction of the Committee, transfer funds to such bank, trust
company, or affiliate for investment through the medium of any fund created and
administered by such bank, trust company, or affiliate, acting as trustee
therefore, for the collective investment of the assets of employee benefit
trusts, provided that such fund is qualified under the applicable provisions of
the Code and while any portion of the assets are so invested, such fund shall
constitute part of the applicable plan or plans, and the instrument creating
such fund shall constitute part of this Trust. In order to implement the
provisions of this paragraph, the Trustee is authorized to enter into any
required ancillary trust, agency or other type of agreement with an investment
manager, or its affiliate, as described in the preceding sentence.
Except in the event of a tender or exchange offer as hereinafter
provided, or in the case of fractional shares received in any stock dividend,
stock split or other recapitalization or as necessary to make any distribution
or payment from the Trust Fund, or unless expressly prohibited by ERISA, the
Trustee shall have no power or duty to sell, tender, exchange or otherwise
dispose of any of the Company's common stock held in the Fund, hereinafter
referred to as the "Company Stock Fund". In the event that a tender or
exchange offer is made for all or any portion of the stock held in the Company
Stock Fund, the Company shall take such action as is practicable to provide
each Participant in the Plan having an interest in such Fund with the same
information that is distributed by the Company to the stockholders of the
Company owning the same class of common stock for which such offer is made.
Notwithstanding any other provision of the Plan or this Trust Agreement, in the
event such an offer is made, each such Participant shall have the right to
direct the Trustee, by timely notice, to tender or exchange all or any portion
of the full shares of such common stock credited to this account which is at
such time fully vested and the Trustee shall so tender or exchange only upon
receipt of such direction. All property received in exchange for such common
stock so tendered shall upon receipt be held by the Trustee in the Fund within
the accounts of those Participants who so tendered, the
4
<PAGE> 7
provisions of the Plan and this Trust Agreement shall hereby be deemed amended
to permit the holding of such property within said Fund and thereafter
administered, invested, reinvested and distributed in accordance with the
applicable terms of the Plan and Trust.
With respect to the unallocated shares of the Company's stock held in
the suspense account and fractional shares of Company stock allocated to
participants' accounts, the Trustee shall exercise rights in connection with
the tender offer or exchange offer for the shares of Company stock in the same
proportion as the participants vote, tender or exchange shares. In the event
any shares of Company stock held in the stock suspense account are tendered or
exchanged, the proceeds shall at the direction of the Board of Directors of the
Company either (i) if and to the extent the proceeds are attributable to
unallocated Company stock, be used to repay installment purchase or other
indebtedness used to purchase the Company stock to which such proceeds are
attributable or (ii) be reinvested in Company stock within 90 days, or such
longer period as may be approved by the Commissioner of Internal Revenue.
THIRD: Payments. Subject to the provisions of Article FOURTEENTH
hereof, the Trustee shall from time to time transfer cash or other property
from the Trust Fund to such persons, including an insurance company or
companies or a paying agent designated by the Committee, at such addresses, in
such amounts, for such purposes and in such manner as the Committee may direct,
provided that such transfer is administratively feasible, and the Trustee shall
incur no liability for any such payment made at the direction of the Committee.
The Committee shall be solely responsible to insure that any payment made at
its direction conforms with the provisions of the Plan, the provisions of this
Agreement, and ERISA, and the Trustee shall have no duty to determine the
rights or benefits of any person in the Trust Fund or under the Plan or to
inquire into the right or power of the Committee to direct any such payment.
FOURTH: Administrative Powers. The Trustee is authorized to exercise
from time to time the following powers in respect of any property, real or
personal, of the Trust Fund, it being intended that these powers be construed
in the broadest possible manner:
5
<PAGE> 8
(1) power to sell at public or private sale for cash or upon
credit or partly for cash and partly upon credit and upon such
terms and conditions as it shall deem proper. No purchaser
shall be bound to see to or be liable for the application of
the proceeds of any such sale;
(2) power to exchange securities or property held by it for other
securities or property, or partly for such securities or
property and partly for cash, and to exercise conversion,
subscription, option and similar rights with respect to
securities held by it, and to make payments in connection
therewith;
(3) power to vote in person or by proxy at corporate or other
meetings and to participate in or consent to any voting trust,
reorganization, dissolution, merger or other action affecting
securities in its possession or the issuers thereof; provided,
however, each Participant in the Plan who has an interest in
the Company Stock Fund shall be entitled to direct the Trustee
as to the manner in which the Company's stock having voting
rights which is allocated to such Participant's account is to
be voted. The Trustee, itself or by its nominee shall be
entitled to vote and shall vote said stock with voting rights
allocated to the accounts of said Participants as follows:
(i) The Company shall adopt reasonable measures to notify said
Participants of the date and purposes of each meeting of
stockholders of the Company at which holders of shares of
stock shall be entitled to vote, and to request instructions
from such Participants to the Company, its agent or the
Trustee as to the voting at such meeting of the number of
shares of common stock (including fractional shares) in the
account of each such Participant whether or not vested. (ii)
In each case, the Trustee, itself or by proxy, shall vote the
shares of said stock (including fractional shares) in the
account of each such Participant in accordance with the
directions of the Participant as communicated directly to the
Trustee or to the Trustee by the Company or its agent. (iii)
If prior to the time of such meeting of stockholders (or a
date prior thereto specified by the Trustee), the Trustee
shall not have received timely directions from a Participant
as to the
6
<PAGE> 9
manner of voting any shares of allocated stock in the account
of such Participant, the Trustee shall not vote such shares.
The Trustee shall vote shares of stock held in the stock
suspense account in the same proportion as directed shares are
voted, giving effect to all directions by participants,
including directions to vote for or against, to abstain, or to
withhold the vote;
(4) power to own or to manage, administer, operate, lease for any
number of years, regardless of any restrictions on leases made
by fiduciaries except restrictions imposed by ERISA, develop,
improve, repair, alter, demolish, mortgage, pledge, grant
options with respect to, or otherwise deal with any real
property or interest therein at any time held in the Trust
Fund, to hold any such real property in its own name or in the
name of its nominee, with or without the addition of words
indicating that such property is held in a fiduciary capacity,
and to cause to be formed a corporation, partnership, trust or
other entity to hold title to any such real property with the
aforesaid powers, all upon such terms and conditions as may be
deemed advisable; to renew or extend or participate in the
renewal or extension of any mortgage, and to agree to a
reduction in the rate of interest on any mortgage or to any
other modifications or change in the terms of any mortgage or
of any guarantee pertaining thereto, in any manner and to any
extent that may be deemed advisable for the protection of the
Trust Fund or the preservation of any covenant or condition of
any mortgage or in the performance of any guarantee, or to
enforce any default in such manner and to such extent as may
be deemed advisable; and to exercise and enforce any and all
rights of foreclosure, to bid on any property in foreclosure,
to take a deed in lieu of foreclosure with or without paying a
consideration therefore and in connection therewith to release
the obligation on the bond secured by such mortgage, and to
exercise and enforce in any action, suit or proceeding at law
or in equity any rights or remedies in respect of any such
mortgage or guarantee;
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(5) power to acquire, hold or dispose of property in unregistered
form, or in its name without designation of fiduciary
capacity, or in the name of its nominee or any custodian, and
to the extent permitted by ERISA, to combine certificates
representing investments with investments of the same issue
held by the Trustee in other fiduciary capacities, and to
deposit property in a depository or clearing corporation or
with the federal reserve bank in its district;
(6) power to compromise and adjust all debts or claims due to or
made against it, to participate in any plan or reorganization,
consolidation, merger, combination, liquidation or other
similar plan or any action thereunder, or any contract, lease,
mortgage, purchase, sale or other action by any corporation or
other entity;
(7) power to borrow money from any lender, in accordance with
ERISA, in any amount and upon any reasonable terms and
conditions, for purpose of this Agreement, and to pledge or
mortgage any property held in the Trust Fund to secure the
repayment of any such loan;
(8) power to deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary
power to any such committee; and to pay part of the expenses
and compensation of any such committee; and any assessments
levied with respect to any property so deposited;
(9) power to exercise any conversion privilege or subscription
right available in connection with any such property; to
oppose or to consent to the reorganization, consolidation,
merger or readjustment of the finances of any corporation,
company or association, or to the sale, mortgage, pledge or
lease of the property of any corporation, company or
association any of the securities of which may at any time be
held in the Trust Fund and to do any act with reference
thereto, including the exercise of options, the making of
agreements or subscriptions and the payments of expenses,
assessments or subscriptions, which may be deemed necessary or
advisable in connection therewith and to hold and retain any
8
<PAGE> 11
securities or other property which it may so acquire;
(10) power to make distributions in cash or in specific property,
real or personal, or an undivided interest therein, or partly
in cash and partly in such property;
(11) power to engage legal counsel, including counsel to the
Company or the Trustee in its individual capacity, and any
other suitable agents, and to consult with such counsel or
agents with respect to the construction of this Agreement, the
administration of the Trust Fund, and the duties of the
Trustee hereunder;
(12) power to commence or defend suits or legal proceedings and to
represent the Trust Fund in all suits or legal proceedings; to
settle, compromise or submit to arbitration any claims, debts
or damages due or owing to or from the Trust Fund, provided
that the Trustee shall notify the Committee of all such suits,
legal proceedings and claims and, except in the case of a
suit, legal proceeding or claim involving solely the Trustee's
action or omissions to act, shall obtain the written consent
of the Company before settling, compromising or submitting to
binding arbitration any claim, suit or legal proceeding of any
nature whatsoever;
(13) power, upon the written direction of the Committee, to enter
into any contract or policy with an insurance company or
companies, for the purpose of insurance coverage or otherwise,
provided that, except as provided in Article FIFTH, the
Trustee shall be the sole owner of all such contracts or
policies and all such contracts or policies shall be held as
assets of the Trust Fund;
(14) power to make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other instruments
in writing necessary or proper for the accomplishment of any
of the foregoing powers;
(15) power to transfer assets of the Trust Fund to a successor
trustee as provided in Article TWELFTH; and
(16) power to appoint custodians or subcustodians to hold any or
all of the Trust Fund;
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<PAGE> 12
(17) power to appoint ministerial agents to perform various
functions of the Trustee; and
(18) power to exercise, generally, any of the powers which an
individual owner might exercise in connection with property
either real, personal or mixed held by the Trust Fund, and to
do all other acts that the Trustee may deem necessary or
proper to carry out any of the powers set forth in this
Article FOURTH or otherwise in the best interests of the Trust
Fund.
Notwithstanding the foregoing, in the event that an investment manager is
appointed pursuant to Article SECOND hereof, such investment manager shall
exercise such of the powers enumerated in this Article FOURTH and otherwise
contained in this Agreement with respect to the portion of the Trust Fund
subject to its control as may be specified in the instrument under which the
investment manager was appointed.
FIFTH: Insurance Company Contracts. The Trustee may, at the
direction of the Committee, (i) enter into one or more contracts with legal
reserve life insurance companies, the rate of return from which is fixed by the
terms of such contracts, (ii) transfer to any such insurance companies a
portion of the Trust Fund in accordance with any such contracts, and (iii) hold
any such contracts as a part of the Trust Fund until directed otherwise by the
Committee. The Committee shall give such direction to the Trustee by
delivering to the Trustee a copy of the action of the Committee signed by at
least two members thereof, which shall specifically refer to this Article FIFTH
and direct the Trustee to so act. The Committee may direct the Trustee to (i)
request any information from any such insurance companies necessary or
appropriate to make an investment decision, (ii) demand or accept withdrawals
or other distributions under any such contracts, (iii) exercise or not to
exercise any rights, powers, privileges and options under any such contracts
and (iv) assign, amend, modify or terminate any such contracts. The Trustee
shall take no action with respect to any such contracts except at the direction
of the Committee. The Trustee shall incur no liability for complying with or
failing to comply with any direction of the Committee. Any insurance companies
issuing any contracts as hereinabove described may deal
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<PAGE> 13
with the Trustee as the absolute owner of any such contracts and need not
inquire as to the authority of the Trustee to act with regard to such
contracts. Any such insurance company may accept and rely upon any
communication from the Trustee which is signed by an officer of the Trustee.
For purposes of this Agreement, any such insurance company shall be considered
to be an investment manager with regard to the assets of the Plan subject to
its control. In no event shall the underlying assets of such insurance company
in which such contracts are invested be considered assets of the Plan or part
of the Trust Fund.
SIXTH: Fiduciary Standards. The Trustee (or any investment
manager appointed pursuant to Article SECOND hereof) shall (i) discharge its
duties hereunder with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims; (ii) subject to the investment funds specified in
the Plan, if any, and to the extent required by ERISA, diversify the
investments of the Trust Fund so as to minimize the risk of large losses unless
under the circumstances it is clearly prudent not to do so; and (iii) discharge
its duties in accordance with the provisions of the Plan and this Agreement
insofar as such provisions are consistent with ERISA.
The Trustee (or any investment manager appointed pursuant to Article
SECOND hereof) shall not engage in any transaction which it knows or should
know violates Section 406 of ERISA. Notwithstanding the foregoing, the Trustee
(or any investment manager appointed pursuant to Article SECOND hereof) may, in
accordance with any appropriate exemption provided under ERISA or upon the
approval of the Secretary of the Department of Labor, enter into any
transaction otherwise prohibited under Section 406 of ERISA.
The Trustee shall not be responsible for the administration of the
Plan, for determining the funding policy of the Plan, or the adequacy of the
Trust Fund to meet and discharge liabilities under the Plan.
The Trustee shall not be responsible for any failure of the Committee
or the Company to discharge any of their respective responsibilities with
respect to the Plan nor be required to
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<PAGE> 14
enforce payment of any contributions to the Trust Fund.
SEVENTH: Prohibition of Diversion.
(a) At no time prior to the satisfaction of all liabilities with
respect to Participants in the Plan and their beneficiaries
shall any part of the corpus or income of the Trust Fund be
used for, or diverted to, purposes other than for the
exclusive benefit of such Participants and their
beneficiaries. Except as provided in paragraphs (b), (c) and
(d) below, and Article THIRTEENTH, the assets of the Trust
Fund shall never inure to the benefit of the Company and shall
be held for the exclusive purpose of providing benefits to
Participants in the Plan and their beneficiaries and defraying
the reasonable expenses of administering the Plan.
(b) In the case of a contribution that is made by the Company by a
mistake of fact, paragraph (a) above shall not prohibit the
return to the Company of such contribution at the direction of
the Committee within one year after the payment of the
contribution.
(c) If a contribution by the Company is expressly conditioned on
qualification of the Plan under Section 401 of the Code, and
if the Plan does not so qualify, then paragraph (a) above
shall not prohibit the return to the Company of such
contribution at the direction of the Committee within one year
after the date of denial of qualification of the Plan, to the
extent permitted by ERISA and the Code.
(d) If a contribution by the Company is expressly conditioned upon
the deductibility of the contribution under Section 404 of the
Code, then to the extent such deduction is disallowed,
paragraph (a) above shall not prohibit the return to the
Company of such contribution at the direction of the
Committee, to the extent disallowed, within one year after the
date of such disallowance.
EIGHTH: Hold Harmless. To the maximum extent permitted by ERISA and
other applicable law, the Trustee shall not be liable for and the Company shall
indemnify the
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Trustee against, and agrees to hold the Trustee harmless from, all liabilities
and claims (including attorney's fees and expenses in defending against such
liabilities and claims) against the Trustee, arising from the Trustee's
performance of its duties in conformance with the terms of the Plan and this
Agreement, including any liability and claim arising with regard to the
provisions of Article SECOND, unless such liability or claim results from the
negligence or reckless or willful acts of commission or omission by the
Trustee. To the maximum extent permitted by ERISA and other applicable law,
the Trustee shall not be liable for acting (or for taking no action) in
accordance with any written direction of the Committee or an investment manager
designated under Article SECOND, or, where an investment manager has been
designated, failing to act in the absence of any such direction, including,
without limitation, any claim or liability that may be asserted against the
Trustee on account of failure to receive securities purchased, or failure to
deliver securities sold pursuant to orders issued by an investment manager, and
the Company shall indemnify the Trustee against and agrees to hold the Trustee
harmless from, all such liabilities and claims (including attorney's fees and
expenses in defending against such liabilities and claims). The foregoing
indemnifications shall also apply to liabilities and claims against the Trustee
arising from any breach of fiduciary responsibility by a fiduciary other than
the Trustee, unless the Trustee (i) participates knowingly in or knowingly
undertakes to conceal such breach, (ii) has enabled such fiduciary to commit
such breach by its failure to exercise its fiduciary duties under ERISA or
(iii) has actual knowledge of such breach and fails to take reasonable remedial
action to remedy such breach.
NINTH: Accounts. The Trustee or its agent shall keep records
of all transactions relating to the Trust Fund, which shall be made available
at all reasonable times to persons designated by the Board of Directors of the
Company or as may be required by law. The Trustee or its agent shall render an
accounting to the Company and the Committee at least annually. The Committee
may approve such accounting on behalf of itself and the Company by an
instrument in writing delivered to the Trustee. If the Committee does not file
with the Trustee objections to any such accounting within sixty (60) days after
its receipt, the Committee shall be
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<PAGE> 16
deemed to have approved such accounting on behalf of itself and the Company. In
such case, or upon the written approval of the Committee of any such
accounting, the Trustee shall, to the extent permitted by law, be discharged
from all liability to the Committee and the Company for its acts or failures to
act described in such accounting. Except to the extent otherwise provided in
ERISA, no person, other than the Company or the Committee, may require an
accounting or bring any action against the Trustee with respect to the Trust
Fund. The Trustee shall render to the Committee, at least quarterly, a
statement of the Trust Fund assets and their values and, whenever a
contribution is made to the Trust Fund other than in cash, a statement of the
value of such property on the date it is received by the Trustee.
Nothing contained in this Agreement or in the Plan shall deprive the
Trustee of the right to have judicial settlement of its accounts. In any
proceeding for a judicial settlement of the Trustee's accounts, or for
instructions with regard to the Trust, the only necessary parties thereto in
addition to the Trustee shall be the Committee. If the Trustee so elects, it
may join as a party or parties defendant any other person or persons.
TENTH: Committee. The Company shall certify to the Trustee the names
of the persons from time to time constituting the Committee. All directions to
the Trustee by the Committee shall be in writing, and the Trustee shall be
entitled to rely without further inquiry upon all such written directions
received from the Committee.
ELEVENTH: Compensation and Expenses. The Trustee shall be entitled to
receive such reasonable compensation for its services as may be agreed upon
from time to time by the Company and the Trustee. Unless paid by Company, such
compensation, attorneys' fees incurred in the administration of the Trust Fund,
all taxes levied or assessed against the Trust Fund, and such other expenses as
are incurred in the administration of the Trust Fund shall be paid from the
Trust Fund.
TWELFTH: Resignation of Trustee. The Trustee may resign at any time
by giving thirty (30) days written notice to the Company. The Board of
Directors of the Company may remove the Trustee at any time by giving thirty
(30) days written notice to the Trustee. In the case of the
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<PAGE> 17
resignation or removal of the Trustee, the Board of Directors of the Company
shall appoint a successor trustee who shall have the same powers and duties as
those conferred upon the Trustee. Upon the resignation or removal of the
Trustee and the appointment of the successor trustee, the Trustee shall account
for the administration of the Trust Fund up to the date of its resignation or
removal in the manner provided in Article NINTH hereof and, upon the approval
or deemed approval of such accounting, the Trustee shall transfer to the
successor trustee all of the assets then constituting the Trust Fund and the
Trustee shall to the maximum extent permitted by ERISA be forever released and
discharged from all liability and accountability with respect to the propriety
of its acts and transactions; provided, however, that the Trustee may, in its
sole discretion, transfer such assets prior to the completion of such
accounting if the Company agrees thereto in writing, such writing to include
such limitations on the Trustee's liability therefor as the Trustee may deem
appropriate. The term "Trustee" as used in this Agreement shall be deemed to
apply to any successor trustee acting hereunder.
THIRTEENTH: Amendment. The Board of Directors of the Company may
amend all or any part of this Agreement at any time provided, however, that any
amendment shall not be effective until the instrument of amendment has been
agreed to and executed by the Trustee. Any such amendment or modification of
this Agreement may be retroactive if necessary or appropriate to qualify or
maintain the Trust Fund as a part of a plan and trust exempt from federal
income taxation under Sections 401(a) and 501(a) of the Code, the provisions of
ERISA, or any other applicable provisions of federal or state law, as now in
effect or hereafter amended or adopted, and any regulations issued thereunder,
including, without limitation, any regulations issued by the United States
Treasury Department, or the United States Department of Labor.
Notwithstanding anything contained in this Article THIRTEENTH to the
contrary, no amendment shall divert any part of the Trust Fund to, and no part
of the Trust Fund shall be used for, any purpose other than for the exclusive
purpose of providing benefits to Participants and their beneficiaries;
provided, however, that nothing in this Article THIRTEENTH shall be deemed to
limit or otherwise prevent the payment from the Trust Fund of expenses and
other
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<PAGE> 18
charges as provided in Article ELEVENTH.
FOURTEENTH: Termination. This Agreement and the Trust Fund hereby
created may be terminated at any time by the Board of Directors of the Company
by written notice, executed and acknowledged so as to authorize it to be
recorded in the State of Missouri delivered to the Trustee. Upon receipt of
such notice of termination, the Trustee shall, after payment of all expenses
incurred in the administration of the Trust Fund and such compensation as the
Trustee may be entitled to, and upon approval of the appropriate governmental
or quasi-governmental authorities (if such approval shall be required under
applicable law or desired by the Trustee), then distribute the Trust Fund in
cash or in kind to such persons or entities, including the Company, at such
time and in such amounts as the Committee shall direct, which direction shall
be in conformity with the provisions of the Plan and ERISA.
FIFTEENTH: Plan-to-Plan Transfers; Rollovers. The Trustee or
its agent may transfer all of the property representing a Participant's vested
interest in the Plan to the trustees of any trust qualified under Section
401(a) of the Code or to the trustee or custodian of a Participant's individual
retirement account. The Trustee or its agent may make such a transfer only at
the direction of the Committee.
The Trustee may accept as part of the Trust Fund such property as is
acceptable to the Trustee which represents a Participant's retirement benefits
transferred from a trust qualified under Section 401(a) of the Code or
transferred from the Participant or an individual retirement account as a
permissible rollover under Section 402(c) or 408(d)(3) of the Code. The Trustee
may accept such a transfer only at the direction of the Committee. A
Participant shall at all times be fully vested in any property so transferred
as a rollover to the Trust Fund. Such property shall be distributed to the
Participant or his beneficiary at the direction of the Committee within the
time required for distribution of his retirement benefits under the applicable
provisions of the Plan.
SIXTEENTH: Adopting Employers. An affiliated corporation of the
Company which has adopted the Plan in accordance with its terms shall become a
party to this Agreement by
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<PAGE> 19
delivering to the Company and the Trustee a certified copy of a resolution of
its board of directors to the effect that it agrees to adopt the Plan, to
become a party to this Agreement, and to be bound by all the terms and
conditions of the Plan and this Agreement. The Company shall have the sole
authority to enforce this Agreement on behalf of any such affiliated
corporation and the Trustee shall in no event be required to deal with any such
affiliated corporation except by dealing with the Company as its agent.
Irrespective of the number of affiliated corporations which may become parties
to this Agreement, the Trustee shall in all respects invest and administer the
Trust Fund as a single fund for investment and accounting purposes without
allocation of any part of the Trust Fund as between the Company and any such
affiliated corporation.
An affiliated corporation which has adopted the Plan shall cease to be
a party to this Agreement upon the Company delivering to the Trustee a
certified copy of a resolution of such affiliated corporation's board of
directors terminating its participation in the Plan. In such event, or in the
event of the merger, consolidation, sale of property or stock, separation,
reorganization or liquidation of the Company or of any such affiliated
corporation, or in the event of the establishment, modification or continuance
of any other retirement plan which separately or in conjunction with this Plan
qualifies under Section 401(a) of the Code, the Trustee shall continue to hold
the portion of the Trust Fund which is attributable to the participation in the
Plan of the employees and their beneficiaries affected by such termination or
by such transaction, and this Agreement shall continue in force with respect to
such portion, until otherwise directed by the Committee, in accordance with the
provisions of the Plan and ERISA.
SEVENTEENTH: Alienation. No interest in the Trust Fund shall be
assignable or subject to anticipation, sale, transfer, mortgage, pledge,
charge, garnishment, attachment, bankruptcy or encumbrance or levy of any kind,
and the Trustee shall not recognize any attempt to assign, sell, transfer,
mortgage, pledge, charge, garnish, attach or otherwise encumber the same except
to the extent that such attempt is made pursuant to a court order determined by
the plan administrator to be a qualified domestic relations order, as defined
in Section 414 of the
17
<PAGE> 20
Code and Section 206 of ERISA or as otherwise required by law.
EIGHTEENTH: Bond. The Trustee shall not be required to give any bond
or any other security for the faithful performance of its duties under this
Agreement except as required by law.
NINETEENTH: Successors. This Agreement shall be binding upon the
respective successors and assigns of the Company and the Trustee. Any
corporation which shall, by merger, consolidation, purchase or otherwise,
succeed to substantially all the trust business of the Trustee shall, upon such
succession, and without any appointment or other action by any person, be and
become successor Trustee hereunder.
TWENTIETH: Communications. Communications to the Company or the
Committee shall be addressed to the Company, or to the Committee in care of the
Company, as the case may be, at 2030 Donahue Ferry Road, Pineville, LA
71361-5000; provided, however, that upon the Company's written request such
communications shall be sent to such other address as the Company may specify.
Communications to the Trustee shall be addressed to:
UMB Bank, N.A.
Employee Benefit Division
1010 Grand Avenue
P.O. Box 419692
Kansas City, MO 64141-6692
provided, however, that upon the Trustee's written request, such communications
shall be sent to such other address as the Trustee may specify. No
communication shall be binding on the Trustee until it is received by the
Trustee.
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TWENTY-FIRST: Governing Law. This Agreement shall be construed in
accordance with ERISA and, to the extent not preempted by ERISA, the laws of
the State of Missouri.
IN WITNESS WHEREOF the Company and the Trustee have executed this
instrument this 1st day of August, 1997.
ATTEST: Central Louisiana Electric Company, Inc.
/s/ JUDY P. MILLER By: /s/ CATHERINE C. POWELL
- ------------------------------ --------------------------------------
Title: Title: Sr. Vice President
Employee & Corporate Service
(Corporate Seal)
UMB Bank, N.A.
By: /s/ WILLIAM A. HANN
-----------------------------------
Title: Senior Vice President
19
<PAGE> 1
EXHIBIT 10(m)(1)
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
401(K) SAVINGS AND INVESTMENT PLAN
(As Amended and Restated Effective January 1, 1994)
FIRST AMENDMENT
Central Louisiana Electric Company, Inc., a Louisiana corporation (the
"Company"), having established the Central Louisiana Electric Company, Inc.
401(k) Savings and Investment Plan, as amended and restated effective January 1,
1994 (the "Plan"), and having reserved the right to amend the Plan under Section
10.03 thereof, does hereby amend the Plan, effective as of August 1, 1997, or as
otherwise herein provided, as follows:
1. The fourth paragraph in the Plan's Recitals is amended to read as
follows:
The Central Louisiana Electric Company 401(k) Savings and
Investment Trust established effective January 1, 1985, as amended and
restated effective August 1, 1997, by Trust Agreement with UMB Bank,
N.A., as trustee thereof, is intended to continue to effect and to form
a part of this Plan. The Central Louisiana Electric Company 401(k)
Savings and Investment Plan ESOP Trust, which was established effective
April 2, 1991, and which was combined with the Central Louisiana
Electric Company 401(k) Savings and Investment Trust pursuant to an
amendment and restatement effective August 1, 1997, is also intended to
form a part of this Plan. The Plan and Trust Agreement are also
intended to meet the requirements of Sections 401(a), 401(k), and
501(a) of the Code, and of the Employee Retirement Income Security Act
of 1974, as either may be amended from time to time.
2. The last two sentences of the fourth paragraph in Section 1.12
are deleted.
3. Section 1.20 is amended to read as follows:
1.20 Entry Date: The Effective Date and any other day during the
calendar year.
4. Section 1.25 is amended to read as follows:
1.25 ESOP Trust: The Central Louisiana Electric Company 401(k)
Savings and Investment Plan ESOP Trust established effective April 2,
1991, as
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<PAGE> 2
amended and restated and combined with the Savings Trust effective
August 1, 1997, and as thereafter may be amended.
5. Section 1.26 is amended to read as follows:
1.26 ESOP Trustee: UMB Bank, N.A., a national banking association
having its principal place of business at Kansas City, Missouri.
6. Section 1.31 is amended to read as follows:
1.31 Investment Fund: One (1) of the Investment Funds
established and held under the Trust Fund, as described in Section 8.1.
7. Section 1.45 is amended to read as follows:
1.45 Savings Trust: Central Louisiana Electric Company 401(k)
Savings and Investment Plan Trust as established effective January 1,
1985, as amended and restated effective August 1, 1997, and as
thereafter may be amended.
8. Section 1.46 is amended to read as follows:
1.46 Savings Trustee: UMB Bank, N.A., a national banking
association having its principal place of business at Kansas City,
Missouri.
9. Section 1.53 is amended to read as follows:
1.53 Valuation Date: Each business day of the Plan Year. The
last business day of each calendar quarter shall be the "quarterly
Valuation Date," and the last day of December of each Plan Year shall
be the "annual Valuation Date."
10. The last sentence of the first paragraph of Section 3.1 is
amended to read as follows:
Each Employee who is not ineligible shall be eligible to participate in
the Plan as of the Entry Date which coincides with his date of hire.
11. Section 3.4 is amended to read as follows:
3.4 Application by Participants: Each Employee who shall become
eligible to participate in the Plan and who shall desire to become a
Participant shall complete an application in such form as may be
prescribed by the Committee and in accordance with administrative
procedures established by the Committee, in which the Participant shall
elect to make Pre-Tax Contributions which total no more than sixteen
percent (16%) of his Compensation, and shall designate the amount, if
any,
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<PAGE> 3
of his Pre-Tax Basic Contribution and Pre-Tax Excess Contribution, as
contemplated under Section 4.2 hereof, and his choice of investment
options under Section 8.1 hereof. Pre-Tax Contributions will begin as
soon as administratively practicable after the application is filed.
12. The last five words in existing paragraph (b) of Section 3.5 are
deleted, and the following new language is inserted at the end of that
paragraph:
"Valuation Date which coincides with the date of distribution."
13. The third sentence in Section 3.8 is amended to read as follows:
Upon the re-employment of any person before he has a Break In Service,
he shall participant in the Plan as of the date of his re-employment
(if he is not ineligible), and he may be entitled to a new Employer
Matching Contribution Account and ESOP Account if he had received no
distribution by reason of his prior termination of Service.
14. The first sentence in paragraph (a) of Section 3.8 is amended to
read as follows:
If the re-employed Employee was not a Participant in the Plan during
his prior period of Service, he shall commence participation in the
Plan on his date of re-employment (if he is not ineligible).
15. The first sentence in the second paragraph of paragraph (a) in
Section 3.9 is amended to read as follows:
If an individual is transferred to eligible employment covered by this
Plan from employment with an Employer or Affiliate not covered by the
Plan, he shall be eligible to participate in this Plan as of the date
of his transfer.
16. The second and third paragraphs of Section 4.2 are amended to read
as follows:
Each Participant shall notify the Committee of the amount he
elects to defer as a Pre-Tax Basic Contribution and as a Pre-Tax Excess
Contribution, in accordance with administrative procedures established
by the Committee, until such time as the Committee may authorize the
discontinuance of the Pre-Tax Contributions according to uniform,
nondiscriminatory policies which may be developed by the Committee.
Each such election shall continue in effect during subsequent Plan
Years unless the Participant shall notify the Committee of his election
to change or discontinue his
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<PAGE> 4
Pre-Tax Basic Contribution or his Pre-Tax Excess Contribution in
accordance with administrative procedures established by the Committee.
A Participant may change the amount of his Pre-Tax Basic
Contribution and/ or Pre-Tax Excess Contribution at any time during the
Plan Year by directing the Committee, in accordance with administrative
procedures established by the Committee, to change the rate of the
Contribution(s). A Participant may discontinue his Pre-Tax Basic
Contribution and/or Pre-Tax Excess Contribution at any time during the
Plan Year by directing the Committee, in accordance with administrative
procedures established by the Committee, to discontinue the deferral of
his Compensation.
17. The following new paragraph is added at the end of Section 4.2:
The Committee may, as a part of the administrative procedures
it establishes and in lieu of written procedures contemplated in this
Plan, authorize use of an "automated response unit" which generates
written acknowledgments of transactions.
18. Section 4.4 is amended to read as follows:
4.4 Actual Deferral Percentage Limits: The Actual Deferral
Percentage for the eligible Highly Compensated Employees for any Plan
Year shall not exceed the greater of (a) or (b), as follows:
(a) The Actual Deferral Percentage of Compensation for
the eligible non-Highly Compensated Employees times 1.25, or
(b) The lesser of (i) the Actual Deferral Percentage of
Compensation for the eligible non-Highly Compensated Employees
times 2.0 or (ii) the Actual Deferral Percentage of Compensation
for the eligible non-Highly Compensated Employees plus two (2)
percentages points or such lesser amount as the Secretary of
Treasury shall prescribe to prevent the multiple use of this
alternative limitation with respect to any Highly Compensated
Employee.
"Highly Compensated Employee" shall mean any Employee and
any employee of an Affiliate who is a highly compensated employee
under Section 414(q) of the Code, including any Employee and any
employee of an Affiliate who
(i) during the current Plan Year or prior Plan Year,
was at any time a five percent (5%) owner; or
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<PAGE> 5
(ii) received Compensation (as defined in Section
5.5(d)(6)) during the prior Plan Year in excess of $80,000
(or such other amount as determined by the Secretary of the
Treasury which reflects cost-of-living increases in
accordance with the provisions of Code Section 414(q)(1),
and if the Employer so elects, the Employee was in the
"top-paid group" (top twenty percent (20%) of payroll,
ranked by Compensation) for such Plan Year, excluding
Employees described in Code Section 414(q) and applicable
regulations.
The Actual Deferral Percentage for any Highly Compensated
Employee who is eligible to have deferred contributions allocated to
his account under one or more plans described in Section 401(k) of the
Code that are maintained by an Employer or an Affiliate in addition to
this Plan shall be determined as if all such contributions were made to
this Plan. For purposes of determining whether the Actual Deferral
Percentage limits of this Section are satisfied, all Pre-Tax
Contributions that are made under two or more plans that are aggregated
for purposes of Code Section 401(a)(4) or 410(b) (other than Code
Section 410(b)(2)(A)(ii)) are to be treated as made under a single
plan, and if two or more plans are permissively aggregated for purposes
of Code Section 401(k), the aggregated plans must also satisfy Code
Sections 401(a)(4) and 410(b) as though they were a single plan.
19. Section 4.5 is amended to read as follows:
4.5 Reduction of Pre-Tax Contribution Rates: If, on the basis of
the Pre-Tax Contribution rates elected by Participants for any Plan
Year, the Committee determines, in its sole discretion, that neither of
the tests contained in (a) or (b) of Section 4.4 will be satisfied, the
Committee may reduce the Pre-Tax Contribution rate of any Participant
who is among the eligible Highly Compensated Employees to the extent
necessary to reduce the overall Actual Deferral Percentage for eligible
Highly Compensated Employees to a level which will satisfy either (a)
or (b) of Section 4.4. The reductions in Pre-Tax Contribution rates may
be made proportionately or in the order provided in Section 4.7.
20. The last three sentences in the first paragraph of Section 4.7 are
deleted.
21. The last two sentences in the third paragraph of Section 4.7 are
deleted and the following sentences are inserted in their place:
Excess Pre-Tax Contributions shall be adjusted in the following manner:
The Highly Compensated Employee having the largest amount of Pre-Tax
Contributions shall
-5-
<PAGE> 6
have his portion of excess Pre-Tax Contributions distributed to him
until one of the tests in (a) or (b) of Section 4.4 is satisfied, or
until his Pre-Tax Contributions equal the Pre-Tax Contributions of the
Highly Compensated Employee having the second largest amount of Pre-Tax
Contributions. This process shall continue until sufficient total
reductions have occurred to achieve compliance with (a) or (b) of
Section 4.4.
22. The second and third sentences in the fourth paragraph of Section
4.7 are deleted.
23. Section 4.8 is deleted in its entirety.
24. The second full paragraph in Section 4.10 (the paragraph
immediately following paragraph (b)) is deleted.
25. Section 4.11 is amended to read as follows:
4.11 Treatment of Excess Aggregate Contributions or ESOP
Contributions: If neither of the tests described above in Section 4.10
is satisfied with respect to either Aggregate Contributions or ESOP
Contributions, the excess Aggregate Contributions or ESOP Contributions
(as applicable), plus any income and minus any loss attributable
thereto, shall be forfeited, or if not forfeitable, shall be
distributed no later than the last day of the Plan Year following the
Plan Year in which such excess Aggregate Contributions or ESOP
Contributions (as applicable) were made. The income and loss
attributable to the Participant's excess Aggregate Contributions or
ESOP Contributions (as applicable) for the Plan Year shall be
determined by multiplying the income or loss attributable to the
Participant's Account for the Plan Year by a fraction, the numerator of
which is the excess Aggregate Contribution or ESOP Contributions (as
applicable), and the denominator of which is the Participant's total
Account balance. Excess Aggregate Contributions or ESOP Contributions
shall be treated as Annual Additions under Section 5.5 of the Plan.
The excess Aggregate Contributions or ESOP Contributions (as
applicable), if any, of each Participant who is among the Highly
Compensated Employees shall be determined by computing the maximum
Contribution Percentage under (a) or (b) of Section 4.10 and then
reducing the Contribution Percentage of some or all of such
Participants whose Contribution Percentage exceeds the maximum by an
amount of sufficient size to reduce the overall Contribution Percentage
for eligible Participants who are among the Highly Compensated
Employees to a level which satisfies (a) or (b) of Section 4.10. Excess
Aggregate Contributions or ESOP Contributions (as applicable) shall be
adjusted in the following manner: The Highly Compensated Employee
having the largest amount of Aggregate Contributions or ESOP
Contributions (as applicable) shall have his vested portion of the
excess Aggregate Contributions or ESOP Contributions (as applicable),
plus any income and minus any
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<PAGE> 7
loss attributable thereto, distributed to him and, if forfeitable,
shall forfeit such non-vested excess Aggregate Contributions or ESOP
Contributions (as applicable), plus any income and minus any loss
attributable thereto, until one of the tests in (a) or (b) of Section
4.10 is satisfied, or until his remaining amount equals the amount of
Aggregate Contributions or ESOP Contributions (as applicable) of the
Highly Compensated Employee having the second largest amount. This
process shall continue until sufficient total reductions have occurred
to achieve compliance with (a) or (b) of Section 4.10. For each
Participant who is a Highly Compensated Employee, the amount of excess
Aggregate Contributions or ESOP Contributions (as applicable) is equal
to the total Employer Contributions on behalf of the Participant
(determined prior to the application of this paragraph) minus the
amount determined by multiplying the Participant's actual contribution
ratio (determined after application of this paragraph) by his
Compensation used in determining such ratio. The individual ratios and
Contribution Percentages shall be calculated to the nearest
one-hundredth (1/100) of one percent (1%) of the Employee's
Compensation as such term is used in paragraph (b) of Section 4.10.
26. Section 4.12 is deleted in its entirety.
27. The first sentence of Section 5.2 is amended to read as follows:
A valuation of the Trust Funds shall be made as of each Valuation Date.
28. The second sentence of Section 5.2 is deleted.
29. The first two sentences of paragraph (d) of Section 5.3 (preceding
the colon) are amended to read as follows:
Any Employee who is a Participant, or who would be a Participant but
for a failure to satisfy the participation requirements of Article III
may, with the approval of the Administrator, make a contribution to a
Rollover Account under the Plan. Such an Account shall be in cash and
shall be a contribution attributable to:
30. Subparagraph (a)(4)(A) of Section 5.5 is amended to read as
follows:
If any such Excess Amounts shall then remain, the Participant's Pre-Tax
Contributions, and any earnings attributable thereto, shall be returned
to him to the extent such returned Contributions would reduce the
Excess Amount.
31. The first sentence to the last paragraph of Section 6.6 (identified
as paragraph (c)) is amended to read as follows:
-7-
<PAGE> 8
As installments payable in cash over a period certain not extending
beyond ten (10) years.
32. Section 6.9 is amended to read as follows:
6.9 Required Minimum Distributions: Notwithstanding any
provision of this Plan to the contrary, any benefits to which a
Participant is entitled shall commence no later than the April 1
following the later of (a) the calendar year in which the Participant
attains age seventy and one-half (70-1/2), or (b) the calendar year in
which the Participant retires; provided, however, that in the case of a
Participant who is a "five percent owner" (as defined in Section
401(a)(9) of the Code), benefits shall commence no later than the April
1 following the calendar year in which the Participant attains age
seventy and one-half (70- 1/2). Such distribution shall be at least
equal to the required minimum distributions under the Code; however,
any installment distributions pursuant to this Section 6.9 to
Participants who have not terminated employment shall be made over a
period not to exceed ten (10) years. For purposes of this Section 6.9,
the life expectancy of a Participant and/or a Participant's spouse
shall not be redetermined annually.
33. Section 7.1 is amended to read as follows:
7.1 Withdrawal of Pre-Tax Contribution Account on or After Age
59-1/2: A Participant who has attained age fifty-nine and one-half
(59-1/2) may elect, by giving notice in accordance with administrative
procedures established by the Committee and following such other rules
and procedures as may be prescribed from time to time by the Committee
on a uniform and nondiscriminatory basis, to withdraw the entire amount
of his After-Tax Contribution Account, his Rollover Account, or his
Pre-Tax Contribution Account.
34. Section 7.2 is amended to read as follows:
7.2 Withdrawal of After-Tax Contributions and Rollover Account:
Pursuant to notice given in accordance with administrative procedures
established by the Committee and subject to the conditions of Section
7.3, each Participant may elect to withdraw as of any business day
during the Plan Year, an amount specified by the Participant which may
be attributable to (a) his After-Tax Contributions under the Original
Plan, or (b) his Rollover Account, determined as of the Valuation Date
which coincides with such withdrawal date.
35. Section 7.3 is amended to read as follows:
7.3 Conditions of Withdrawals of After-Tax Contributions and
Rollover Account: In making a withdrawal pursuant to Section 7.2, no
Participant shall be permitted to withdraw less than $500, or the
combined balance of his After-Tax Contribution Account and his Rollover
Account, if their combined total is less than $500. Except as provided
under Article VI and Sections 7.1 and 7.4 hereof, no withdrawals shall
be permitted from a
-8-
<PAGE> 9
Participant's Pre-Tax Contribution Account, Employer Matching
Contribution Account, or ESOP Account.
36. Section 7.4 is amended to read as follows:
7.4 Hardship Withdrawals from Pre-Tax Contribution Account: A
Participant may at any time, in accordance with administrative
procedures established by the Committee, make a request for a hardship
withdrawal in either a dollar amount or a percentage figure from his
Pre-Tax Contribution Account. Notwithstanding the foregoing, however,
no Participant may withdraw any Income of the Trust Fund allocated to
his Pre-Tax Contribution Account on or after January 1, 1989. The
approval or disapproval of such request shall be made within the sole
discretion of the Committee, except that no such request for a
withdrawal shall be approved unless the Participant has certified in
writing that he is facing a hardship creating an immediate and
substantial financial need and that the resources necessary to satisfy
that financial need are not reasonably available from other sources
available to the Participant. The amount of the hardship withdrawal
shall be limited to that amount which is required to meet the immediate
financial need created by the hardship, including anticipated federal
and state income taxes and penalties resulting from the distribution.
The hardship withdrawal shall be made in cash as soon as practicable
after the Participant submits the hardship request, and the dollar
amount withdrawn shall be determined by reference to the value of the
Pre-Tax Contribution Account as of the Valuation Date coincident with
the date of the withdrawal.
A Participant who receives a hardship withdrawal shall be
prohibited from making pre-tax contributions to this Plan and any other
plan maintained by the Employer (except "welfare plans" as defined in
Section 3(1) of ERISA) for the twelve (12) consecutive months following
the date of distribution. The following standards (or such other
standards as may be acceptable under Treasury Regulations issued
pursuant to Section 401(k) of the Code) shall be applied on a uniform
and non-discriminatory basis in determining the existence of such a
hardship:
(a) A financial need shall be considered immediate if it
must be satisfied in substantial part within a period of twelve
(12) months from the date on which the Participant certifies his
eligibility for a hardship withdrawal.
(b) To be considered a hardship for purposes of this
Section, the event giving rise to the need for funds must relate
to financial hardship resulting from:
(1) expenses previously incurred for medical care
(described in Code Section 213(d)) or expenses that are
necessary to incur in order to obtain medical care (as
evidenced by a written estimate thereof) for the
Participant, the Participant's spouse, or the Participant's
dependents (as defined in Code Section 152);
-9-
<PAGE> 10
(2) purchase (excluding mortgage payments) of a
principal residence for the Participant;
(3) payment for tuition for the next twelve (12) months
of post-secondary education for the Participant or the
Participant's spouse, children or dependents (as defined in
Code Section 152);
(4) the need to prevent the eviction of the Participant
from his principal residence or foreclosure on the mortgage
of the Participant's principal residence; or
(5) payment for funeral expenses for the Participant's
spouse or the Participant's dependents (as defined in Code
Section 152).
A person shall be considered to be economically dependent on
the Participant if the Participant certifies that he reasonably expects
to be entitled to claim that person as a dependent for federal income
tax purposes for a calendar year coinciding with the Plan Year in which
the certification of hardship is made.
37. The first sentence of Section 7.5 is amended to read as follows:
From and after October 1, 1989, any Participant who is a "party in
interest" (as defined in Section 3(14) of ERISA) (hereinafter
"Borrower") may make application, in accordance with administrative
procedures established by the Committee, to borrow from his Pre-Tax
Contribution Account, his Rollover Account, or his Employer Matching
Contribution Account (to the extent that the Account contains Employer
matching Contributions) in the Trust Fund, and the Committee in its
sole discretion may permit such a loan.
38. Paragraph (f) of Section 7.5 is amended to read as follows:
(f) A request by a Borrower for a loan shall be made in
accordance with administrative procedures established by the Committee
and shall specify the amount of the loan. If a Borrower's request for a
loan is approved, the loan shall be made in a lump-sum payment of cash
to the Borrower. The cash for such payment shall be obtained by
redeeming proportionately as of the date of payment the Investment Fund
or Funds, or portions thereof, that are credited to the Pre-Tax
Contribution Account, Rollover Account, and Employer Matching
Contribution Account of such Borrower; provided, however, that,
effective October 1, 1997, no withdrawals shall be made from the Common
Stock Fund prior to the full depletion of all other Funds.
39. Paragraph (h) of Section 7.5 is amended to read as follows:
(h) Only one loan may be outstanding for a Borrower at any given
time.
-10-
<PAGE> 11
40. Section 8.1 is amended to read as follows:
8.1 Investment of Trust Funds:
(a) Investment Funds: Except as provided in Article VII with
respect to Plan loans and as provided below with respect to the ESOP
Fund, the Trust Fund shall be invested in separate Investment Funds
chosen and established by the Committee. The Committee may adjust the
number and types of Investment Funds to be established or discontinued
as it deems advisable. One such Investment Fund, however, shall be the
Common Stock Fund, which shall be invested and reinvested in the Common
Stock of the Company. The Trustee, the Committee, or a recordkeeper
designated by the Committee shall maintain records for each
Participant's After-Tax Contribution Account, Employer Matching
Contribution Account, Pre-Tax Contribution Account, and Rollover
Account, if any, that reflect the value of each Participant's share of
the Investment Funds.
(b) Investment Directions: The Participant shall have the right
to direct the Committee to instruct the Savings Trustee to invest his
Pre-Tax Contributions and contributions to his Rollover Account and
the earnings and accretions thereon in any of the Investment Funds
established by the Committee.
Each Participant shall elect an investment option at the time
he begins participating in the Plan. Through notice to the Committee
given pursuant to administrative procedures established by the
Committee, a Participant may change his instructions with respect to
the investment of his Pre-Tax Contributions, After-Tax Contributions,
Employer Matching Contributions, and Rollover Contributions to the
Trust Fund. A participant who desires to change his instructions in
this manner may direct that the funds in his Future Pre-Tax Accounts be
transferred (in no more than one percent (1%) increments) among the
Investment Funds.
All earnings realized to the Trust Fund (including, but not
limited to, dividends, capital gains, and interest) on an Investment
Fund that are not reflected in the value of a share in that Investment
Fund will be allocated to Participants' accounts. They will be
allocated to a Participant's account in the same proportion the
Participant's share of the Investment Fund (disregarding the earnings
to be allocated) bears to the total value of the Investment Fund
(disregarding the earnings to be allocated), both to be determined as
of the date the earnings are realized. Notwithstanding the foregoing,
the Committee may direct that dividends paid with respect to shares in
the ESOP Fund be distributed on an annual basis or more frequently in
order that the deduction under Code Section 404(k) be available to the
Company, in which event income that constitutes dividends on shares of
Company Stock in the ESOP Fund shall not be invested in Company Stock
but shall be temporarily invested in cash equivalents until
distribution to Participants. In making payments in respect to Exempt
Loans, the Trustee shall utilize income and ESOP Contributions as is
specified in Section 5.3 hereof; namely, that income shall be first
used to fund principal payments and ESOP
-11-
<PAGE> 12
Contributions shall be first used to fund interest payments. All
purchases of Company Stock shall be made at prices which, in the
judgment of the Trustee, do not exceed the fair market value of such
Company Stock. Pending such investment or application of cash, the ESOP
Trustee may retain cash uninvested without liability for interest if it
is prudent to do so, or may invest all or any part thereof in Treasury
Bills, commercial paper, and like holdings.
41. The first sentence in Section 8.2 is amended to read as follows:
Effective January 1, 1992, each qualified Participant (as defined
herein) may elect within ninety (90) days after the close of each Plan
Year in the qualified election period (as defined herein) to direct the
change of the investment of at least twenty-five percent (25%) of the
total number of shares of Company Stock allocated to the Participant's
ESOP Account at the time of such election.
42. The first sentence of paragraph (g) of Section 11.7 is amended to
read as follows:
In determining the present value of the cumulative accrued benefit or
the amount of the account of any employee, such present value or
account will include the amount in dollar value of the aggregate
distributions made to such employee under the applicable plan during
the five-year period ending on the Determination Date, unless already
reflected in the value of the accrued benefit or account balance as of
the date the determination is made.
43. The first sentence of paragraph (j) of Section 11.7 is amended to
read as follows:
"Valuation Date" means, for purposes of determining the present value
of an accrued benefit as of the Determination Date, the Determination
Date.
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<PAGE> 13
IN WITNESS WHEREOF, Central Louisiana Electric Company, Inc., has
caused these presents to be executed by its duly authorized officers in a number
of copies, all of which shall constitute one and the same instrument, which may
be sufficiently evidence by any executed copy hereof, this 1st day of October,
1997, but effective as of the dates specified herein.
CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
By /s/ CATHERINE C. POWELL
---------------------------------
ATTEST:
/s/ MICHAEL P. PRUDHOMME
- ----------------------------------
Secretary
[SEAL]
UMB BANK, N.A.
TRUSTEE
By /s/ MARK P. HERMAN
---------------------------------
Mark P. Herman, Sr. V.P.
-13-
<PAGE> 1
EXHIBIT 11
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
COMPUTATION OF NET INCOME PER COMMON SHARE
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
(In thousands, except share and per share amounts)
--------------------------------------------------
1997 1996 1995
-------------- ----------- -----------
<S> <C> <C> <C>
BASIC
Net income applicable to common stock $ 50,402 $ 50,061 $ 46,651
============ ============ ============
Weighted average number of shares of common
stock outstanding during the year 22,459,770 22,442,683 22,417,522
============ ============ ============
Basic net income per common share $ 2.24 $ 2.23 $ 2.08
============ ============ ============
DILUTED
Net income applicable to common stock $ 50,402 $ 50,061 $ 46,651
Adjustments to net income related to Employee
Stock Ownership Plan (ESOP) under the "if-converted" method:
Add loss of deduction from net income for actual
dividends paid on convertible preferred stock,
net of tax 1,456 1,462 1,474
Deduct additional cash contribution
required which is equal to dividends
on preferred stock less dividends
paid at the common dividend rate, net
of tax (107) (140) (176)
Add tax benefit associated with dividends
paid on allocated common shares 297 227 185
------------ ------------ ------------
Adjusted income applicable to common stock $ 52,048 $ 51,610 $ 48,134
============ ============ ============
Weighted average number of shares of common
stock outstanding during the year 22,459,770 22,442,683 22,417,522
Number of equivalent common shares
attributable to ESOP 1,397,532 1,405,205 1,416,360
Common stock under stock option grants 6,729 10,079 13,237
------------ ------------ ------------
Average shares 23,864,031 23,857,967 23,847,119
============ ============ ============
Diluted net income per common share $ 2.18 $ 2.16 $ 2.02
============ ============ ============
</TABLE>
<PAGE> 1
EXHIBIT 12
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
COMPUTATION OF EARNINGS TO
FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
FOR THE YEARS ENDED DECEMBER 31,
(In thousands, except ratios)
----------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Earnings from continuing operations $ 52,519 $ 52,135 $ 48,703 $ 45,043 $ 41,812
Income taxes 27,729 26,154 25,229 19,901 19,565
-------- -------- -------- -------- --------
Earnings from continuing operations
before income taxes $ 80,248 $ 78,289 $ 73,932 $ 64,944 $ 61,377
-------- -------- -------- -------- --------
Fixed charges:
Interest, long-term debt $ 23,676 $ 25,134 $ 24,516 $ 23,194 $ 22,089
Interest, other 3,873 2,359 3,482 2,542 2,750
Amortization of debt expense and
premium, net 1,206 1,107 1,234 1,223 1,402
Portion of rental expense
representative of interest
factor 487 445 457 707 485
-------- -------- -------- -------- --------
Total fixed charges $ 29,242 $ 29,045 $ 29,689 $ 27,666 $ 26,726
-------- -------- -------- -------- --------
Earnings from continuing operations
before income taxes and
fixed charges $109,490 $107,334 $103,621 $ 92,610 $ 88,103
======== ======== ======== ======== ========
Ratio of earnings to fixed charges 3.74x 3.70x 3.49x 3.35x 3.30x
======== ======== ======== ======== ========
Fixed charges from above $ 29,240 $ 29,045 $ 29,689 $ 27,666 $ 26,726
Preferred dividends 2,884 2,909 2,960 2,966 3,008
-------- -------- -------- -------- --------
Total fixed charges and preferred
stock dividends $ 32,124 $ 31,954 $ 32,649 $ 30,632 $ 29,734
======== ======== ======== ======== ========
Ratio of earnings to combined
fixed charges and preferred
stock dividends 3.41x 3.36x 3.17x 3.02x 2.96x
======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
Exhibit 13
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
For the years ended December 31,
-----------------------------------------------------------------------------
1997 1996 1995 1994 1993
------------- ------------- ------------- ------------- -------------
(In thousands, except per share amounts, ratios and operating statistics)
<S> <C> <C> <C> <C> <C>
FINANCIAL DATA
Statements of Income Data Operating
revenues(1)........................... $ 456,245 $ 437,121 $ 396,227 $ 381,482 $ 384,308
Net income............................ $ 52,519 $ 52,135 $ 48,703 $ 45,043 $ 41,812
Net income applicable to common
stock.............................. $ 50,402 $ 50,061 $ 46,651 $ 43,017 $ 39,827
Basic earnings per average common
share(2)........................... $ 2.24 $ 2.23 $ 2.08 $ 1.92 $ 1.78
Diluted earnings per average common
share(2)........................... $ 2.18 $ 2.16 $ 2.02 $ 1.86 $ 1.73
Cash dividends paid per common
share.............................. $ 1.57 $ 1.53 $ 1.49 $ 1.45 $ 1.41
Ratio of earnings to fixed charges...... 3.74X 3.70x 3.49x 3.35x 3.30x
Ratio of earnings to combined fixed
charges and preferred stock
dividends............................. 3.41X 3.36x 3.17x 3.02x 2.96x
Balance Sheet Data (at end of period)
Total assets.......................... $1,361,044 $1,321,771 $1,226,034 $1,178,191 $1,161,635
Long-term obligations and redeemable
preferred stock, net............... $ 372,017 $ 347,231 $ 367,432 $ 343,509 $ 358,329
OPERATING STATISTICS
Electric sales -- regular
system customers
(million kwh)
Residential........................... 2,838 2,723 2,763 2,532 2,470
Commercial............................ 1,393 1,338 1,265 1,180 1,109
Industrial............................ 2,467 2,369 2,227 2,030 2,005
Other retail.......................... 533 526 502 487 463
Sales for resale...................... 311 291 360 210 175
---------- ---------- ---------- ---------- ----------
Total sales to regular customers...... 7,542 7,247 7,117 6,439 6,222
Short-term energy sales to other
utilities............................. 157 330 68 174 266
---------- ---------- ---------- ---------- ----------
Total electric sales.................. 7,699 7,577 7,185 6,613 6,488
========== ========== ========== ========== ==========
System peak
(thousand kilowatts).................. 1,560 1,500 1,473 1,310 1,346
Electric customers...................... 238,061 224,703 220,923 217,568 212,559
</TABLE>
- ---------------
(1) Certain prior-period amounts have been reclassified to conform with the
presentation shown in the current year's financial statements. These
classifications had no effect on net income applicable to common stock or
common shareholders' equity.
(2) Earnings per average common share for prior periods have been restated to
reflect adoption of SFAS No. 128, "Earnings per Share."
1
<PAGE> 2
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
INDUSTRY DEVELOPMENTS
Forces driving increased competition in the electric utility industry
involve complex economic and legislative factors. These factors have resulted in
the introduction of federal and state legislation and other regulatory
initiatives that are likely to produce even greater competition at both the
wholesale and retail levels in the future. The Louisiana Public Service
Commission (LPSC) is investigating whether retail choice is in the best interest
of Louisiana electric utility customers. The Company and a number of parties,
including the other Louisiana electric utilities, certain power marketing
companies and various associations representing industry and consumers,
participated in electric industry restructuring testimony before the LPSC during
1997. Also during 1997, the Louisiana legislature deferred any action regarding
restructuring of the electric utility industry within the State. We expect the
debate relating to customer choice and other related issues to continue in
legislative and regulatory bodies in 1998. At this time, we cannot predict
whether any legislation or regulation will be enacted or adopted during 1998
and, if enacted or adopted, what form such legislation or regulation would take.
In general, Louisiana enjoys relatively low rates for electricity. Industry
restructuring presents the possibility that rates could move closer to the
national average, meaning possible higher prices for Louisiana's small
consumers. With this in mind, we favor a plan that would protect the rates of
small consumers and allow retail choice no later than the year 2000, primarily
for larger commercial and industrial class customers. In the meantime, we
recognize the need to resolve issues to create a level playing field for all
energy suppliers. The increasingly competitive environment presents
opportunities to compete for electric supply to new customers, as well as the
risk of losing existing customers. We believe the Company is a reliable,
low-cost provider of electricity and as such, is currently positioned to compete
effectively in a restructured electric marketplace.
JOINT VENTURE
To better position ourselves for increased competition, we formed a joint
venture with Covenant Energy Corporation (Covenant) on October 30, 1997. The
joint venture will market electricity and natural gas services, as well as
energy management services to commercial and industrial customers and utilities
throughout the southeastern United States. The joint venture will also engage in
energy asset development projects, such as cogeneration projects, natural gas
pipelines connecting to customers' plants and potential strategic asset
acquisitions in the southeastern United States. The newly formed venture, CLECO
ENERGY, L.L.C., is headquartered in Houston, Texas. Covenant President John T.
McDougal heads the venture. We own 51% of the newly formed venture through a
subsidiary and Covenant owns the remaining 49%.
RESULTS OF OPERATIONS
EARNINGS
1997 earnings (net income applicable to common stock) totaled $50.4
million, or $2.24 per share, an increase of $0.3 million, or $0.01 per share,
compared to 1996. Earnings increased because we sold more kilowatt-hours to our
customers, adding an additional $10.4 million in base revenues. Earnings were
negatively affected by expected increases in such nonfuel operating expenses as
depreciation and ad valorem taxes, as well as a $3 million annual base rate
reduction ordered by the LPSC.
1996 earnings increased $3.4 million, or $0.15 per share, compared to 1995.
The growth in earnings was primarily due to increased sales of electricity to
commercial and industrial customers, offset by an increase in nonfuel operating
expenses. 1995 earnings increased $3.6 million, or $0.16 per share, compared to
1994. Results for 1995 were affected by increased electricity sales caused by
warmer-than-normal weather, which were partially offset by higher operating
expenses.
2
<PAGE> 3
Earnings for past years are not necessarily indicative of future earnings
and results. Future earnings will be affected by weather conditions, business
development programs, the overall economy of the Company's service area, the
effect of an additional $2 million rate reduction beginning January 1, 1998,
legislative and other regulatory changes and increased competition.
REVENUES
Retail rates for residential, commercial and industrial customers and other
retail sales (about 95% of revenues) are regulated by the LPSC. Rates for
transmission and wholesale power sales are regulated by the Federal Energy
Regulatory Commission (FERC). Retail rates consist of a base rate and a fuel
rate. Base rates are designed to allow us to recover the cost of providing
service and a return (profit) on utility assets. Fuel rates fluctuate, allowing
us to recover, with no profit, the changing costs of purchased power and fuel
used to generate electricity. The following chart shows the amounts and changes
in base revenues and fuel cost recovery revenues for 1997 and 1996.
<TABLE>
<CAPTION>
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Base (nonfuel).................................... $278,412 3.9% $268,006 1.9%
Fuel cost recovery................................ 177,833 5.2% 169,115 26.9%
-------- ------- -------- -------
Total revenues.......................... $456,245 4.4% $437,121 10.3%
======== ======= ======== =======
</TABLE>
Base rates were reduced $3 million annually beginning November 1, 1996 by
the settlement of an earnings review conducted by the LPSC. The settlement calls
for an additional $2 million annual base rate reduction beginning January 1,
1998. For more information on the results of the LPSC earnings review, see
"Financial Condition -- Retail Rates" below. Most of the $19.1 million, or 4.4%
increase in 1997 operating revenues was due to an increase in base revenues from
an additional 4.1% growth in kilowatt-hour sales.
Fuel cost recovery revenues collected in 1997 increased $8.7 million due to
the lack of available low-cost power on the wholesale market or the lack of
available transmission capacity to transport energy to our electric system. The
lack of available purchased power increased the need for additional generation
by our natural gas units at a higher cost. Net income is not affected by changes
in the cost of fuel and purchased power because these cost fluctuations are
currently passed on to customers through fuel cost adjustments clauses. For
information on changes in the fuel adjustment clause, see "Financial
Condition -- Retail Rates" below.
Total operating revenues for 1996 were 10.3% higher compared to 1995. This
increase is primarily due to an increase in fuel cost recovery revenues,
resulting primarily from higher natural gas prices in effect during 1996. As the
cost of fuel increases, the amount of fuel cost recovery revenues we collect
from customers similarly increases. The 1.9% rise in base revenues was caused by
an increase in kilowatt-hour sales to commercial and industrial customers, who
are less affected by weather conditions than residential customers.
SALES
Weather influences the demand for electricity, especially among residential
customers. A hot summer or a cold winter will increase residential customer
demand for electricity. Cooler summers and warmer winters will reduce customer
demand. Demand for electricity by commercial and industrial customers is
primarily dependent upon the strength of the economy in the service territory
and the nation, and is less affected by weather. Sales to industrial customers
are also affected by the national economy and by the worldwide demand for wood
products, since our two largest
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<PAGE> 4
customers are producers of such products. The following chart compares the
kilowatt-hour sales by customer class for 1997 and 1996.
<TABLE>
<CAPTION>
1997 1996
------------------ ------------------
MILLION Percent Million Percent
KWH Change kwh Change
------- ------- ------- -------
<S> <C> <C> <C> <C>
Regular customers
Residential........................... 2,838 4.2% 2,723 (1.4)%
Commercial............................ 1,393 4.1% 1,338 5.8%
Industrial............................ 2,467 4.1% 2,369 6.4%
Other retail.......................... 533 1.3% 526 4.8%
Sales for resale...................... 311 6.9% 291 (19.2)%
----- ----- ----- -----
Total sales to regular customers........ 7,542 4.1% 7,247 1.8%
Short-term sales to other utilities..... 157 (52.4)% 330 385.3%
----- ----- ----- -----
Total electric sales.......... 7,699 1.6% 7,577 5.5%
===== ===== ===== =====
</TABLE>
The increase in sales to residential customers during 1997 resulted from a
cooler-than-normal fall season in 1997. A milder winter during the beginning of
1997 offset the warmer summer of 1997. Sales to residential customers were also
boosted by the addition of 7,700 mostly residential customers on September 30,
1997 through the acquisition of the business of Teche Electric Cooperative, Inc.
(Teche). Sales to commercial and industrial customers grew from 1996 as a result
of customer growth and increased consumption by our largest industrial customer.
During 1996, consumption by commercial and industrial customers was higher
than in 1995 due to customer growth and increased consumption by our largest
industrial customer. The summer weather in 1996 was milder than the summer
weather in 1995, resulting in a 1.4% decrease in residential sales.
During the last five years, sales growth to regular customers averaged 4.6%
per year and, based on current information, is expected to range from 3% to 4%
per year during the next five years. The levels of future sales will depend upon
weather conditions, customer conservation efforts, our retail marketing and
business development programs, and the overall economy of the service area.
Issues facing the electric utility industry that could affect sales include
deregulation, retail wheeling, legislative and regulatory changes, retention of
large industrial customers, franchises and access to transmission systems.
In 1995, we leased the England Industrial Airpark distribution system from
the industrial development authority for a 20-year period. This facility
includes a new commercial airport, industrial park, golf course and residential
village. These are all portions of the former England Air Force Base near
Alexandria, which we served prior to its closure several years ago.
In 1995, we began providing approximately 13 megawatts of wholesale power
service to the city of St. Martinville under a five-year contract subject to the
jurisdiction of the FERC. This contract was challenged in 1993 by the previous
supplier, Louisiana Energy and Power Authority (LEPA), as well as the city of
Lafayette and the American Public Power Association, with assertions of
preferential, discriminatory and predatory pricing. An initial decision of the
FERC's presiding administrative law judge in February 1995 rejected LEPA's
arguments. Under FERC procedures, LEPA filed a brief requesting the FERC to
revise the initial decision, and this matter is still pending. The Company has
opposed LEPA's brief and management believes that the initial decision will be
upheld.
In February 1995, we agreed to purchase Teche for a price, including the
assumption or other discharge of Teche's liabilities, of about $22.4 million.
The members of Teche overwhelmingly approved the sale at their annual meeting in
March 1995. One of the conditions necessary to the closing of the Teche
acquisition was an interim power purchase agreement with Cajun Electric Power
Cooperative, Inc. (Cajun), Teche's former wholesale power supplier. Cajun has
been
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<PAGE> 5
involved in bankruptcy proceedings since 1995. An interim agreement, acceptable
to Cajun's bankruptcy trustee and the Rural Utilities Service, was reached in
September 1997. We consummated the purchase of Teche on September 30, 1997.
In 1996, we signed a contract to serve a new industrial port on the Red
River at Natchitoches. This port is a development resulting from a federal
project which has made the Red River navigable from where it joins with the
Mississippi River to near Shreveport. The Red River runs through our service
territory in central and western Louisiana and provides a water transportation
connection to the world via the Mississippi River and the Gulf of Mexico.
FUEL AND PURCHASED POWER
Changes in fuel and purchased power expenses reflect fluctuations in
generation mix, fuel costs, availability of economy power and deferral of
expenses for recovery from customers through fuel adjustment clauses in
subsequent months. The following table shows the amount and changes in fuel and
purchased power expenses for 1997 and 1996.
<TABLE>
<CAPTION>
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Fuel used for electric generation........ $136,009 17.6% $115,642 6.8%
Power purchased.......................... 44,590 (19.8)% 55,609 103.2%
-------- ----- -------- -----
Total fuel expenses............ $180,599 5.4% $171,251 26.2%
======== ===== ======== =====
</TABLE>
Fuel and purchased power costs increased $9.3 million in 1997. Fuel costs
used for electric generation increased over 1996 primarily as a result of the
lack of available low-cost power on the wholesale market or the lack of
available transmission capacity to transport energy to our electric system which
increased the need for additional generation by our natural gas units at a
higher fuel cost. Consequently, 1997 purchased power costs decreased compared to
1996.
The increase in 1996 in the cost of fuel used for electric generation is
attributable primarily to the higher cost of natural gas in 1996 compared to
1995. The increase in purchased power in 1996 resulted from the increased
availability of low-cost power (generally from solid fuel generation) on the
wholesale market, primarily due to the substantial increases in natural gas
prices.
Coal and lignite are obtained under long-term contracts. Natural gas is
purchased under short-term contracts on the spot market when prices are
advantageous. Power is purchased from other utilities when the purchase price is
less than the cost to generate and transmission capacity is available to
transport the energy to our system. During 1997, 24% of our energy requirements
were met with purchased power, compared to 33% in 1996.
We and the joint owner of one of our electric generating units jointly
filed suit in 1997 against a joint venture and its partners who mine lignite for
the generating unit. The joint venture has filed counterclaims. The
counterclaims caused us and the joint owner to file another suit against the
joint venture's parent company. Management believes the counterclaims, if
successful, would not have a material adverse effect on our financial position
or results of operations. Normal day-to-day operations continue at the mining
facility and the jointly-owned electric generating unit.
During 1996, we constructed natural gas pipelines at three of our power
stations where natural gas is used as a primary fuel. These pipelines increase
our access to natural gas markets and lower-cost gas supplies. The pipelines are
owned and operated by a subsidiary of the Company. Also during 1996, we
terminated contracts with our main transporter and supplier of natural gas and
replaced them with a base supply contract for approximately one-third of our
natural gas requirements. The new natural gas contracts and access to the gas
markets afforded by the pipelines are helping to maintain the competitiveness of
our generating units.
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<PAGE> 6
The coal for one of our jointly-owned electric generating units is
transported under a long-term transportation contract with a railroad. The
railroad is experiencing operating problems, which began in 1997 and resulted in
reduced volumes delivered to the unit. Coal inventory at the unit is currently
below our desired minimum level. Based on the railroad's anticipated delivery
schedule of future coal shipments, management anticipates restoration of the
coal inventory at the unit to desired levels by July 1998.
NONFUEL OPERATING EXPENSES AND INCOME TAXES
Changes in nonfuel operating expenses (excluding restructuring charges) for
1997 and 1996 were as follows:
<TABLE>
<CAPTION>
1997 1996
-------------------- --------------------
IN Percent In Percent
THOUSANDS Change Thousands Change
--------- ------- --------- -------
<S> <C> <C> <C> <C>
Other operation.......................... $ (152) (0.2)% $(2,994) (4.4)%
Maintenance.............................. $ (203) (0.9)% $ 873 3.9%
Depreciation............................. $2,449 5.6% $ 2,277 5.5%
Other taxes.............................. $3,827 12.9% $ 532 1.8%
Income taxes............................. $1,575 6.0% $ 925 3.7%
------ ---- ------- ----
Total.......................... $7,496 4.0% $ 1,613 0.9%
====== ==== ======= ====
</TABLE>
Total 1997 nonfuel operating expenses, excluding restructuring charges,
increased 4.0% over 1996. For more information concerning a $1.9 million
restructuring charge incurred in 1997, see "Restructuring Charge" below.
Depreciation expense increased primarily due to a full year of depreciation on
property additions associated with the Energy Control Center, and planned
additions to generation, transmission and distribution facilities. Taxes other
than income taxes increased primarily due to the expiration of the property tax
exemption discussed below.
In 1996, total nonfuel operating expenses increased 0.9% compared to 1995.
The increase was primarily due to higher depreciation expense and federal and
state income taxes which were offset in part by a decrease in costs to operate
our electric system. Depreciation expense increased primarily due to property
additions associated with the Energy Control Center and transmission and
distribution facilities. The increase in federal and state income taxes resulted
from an increase in pretax income. Operating costs decreased as a result of
reduced co-op acquisition expenses during 1996, and a higher employee incentive
expense incurred in 1995. Maintenance expenses increased as a result of
additional upkeep to the water plant facilities at the Coughlin Power Station.
In 1997, a ten-year property tax exemption expired on the Dolet Hills Power
Station. Taxes other than income taxes increased primarily due to our share of
the increased property taxes on this generating station.
A number of parishes have attempted in recent years to impose franchise
fees on retail revenues earned within the unincorporated areas we serve. If the
parishes are ultimately successful, taxes other than income taxes could increase
substantially in future years.
RESTRUCTURING CHARGE
During 1997, we reorganized our electric production staff. The primary
objective of this reorganization was to create a centralized power production
maintenance workforce. Other initiatives included improving power production
operations and providing better service to customers. As a result, approximately
30 employee positions were eliminated, resulting in a charge to earnings of
$1,891,000 ($1,248,000 on an after-tax basis), consisting mainly of voluntary
severance programs offered to eligible employees.
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<PAGE> 7
OTHER INCOME AND INTEREST EXPENSE
"Other income (expenses), net" increased $0.9 million mainly due to
earnings from our nonregulated activities.
In 1996, "other income (expenses), net" increased $0.2 million as a result
of lower charitable donations and other miscellaneous expenses compared to 1995.
Interest expense for 1997 increased $0.6 million, as compared to 1996. This
increase was due to higher average outstanding balances of commercial paper and
medium-term notes during 1997 at interest rates similar to 1996, which was
partially offset by a decrease in interest on first mortgage bonds because of
the redemption in 1996 of $50 million Series Y first mortgage bonds.
Interest expense decreased $0.2 million in 1996, as compared to 1995, due
in part to lower interest rates on short-term debt and variable-rate pollution
control bonds. During 1996, $50 million of 9 5/8% first mortgage bonds were
redeemed with proceeds from $45 million of medium-term notes issued at a
weighted average interest rate of 6.37%.
ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION (AFUDC)
AFUDC represents the estimated cost of financing construction
work-in-progress and is not a current source of cash. A return on and recovery
of AFUDC is permitted by regulatory bodies in setting rates charged for utility
services. AFUDC for 1997 decreased as a result of lower balances of eligible
construction work-in-progress. AFUDC for 1996 decreased as a result of lower
average construction work-in-progress balances compared to 1995. AFUDC accounted
for 0.9% of earnings in 1997, compared to 1.5% in 1996 and 4.5% in 1995.
EARNINGS PER SHARE
Earnings per average common share have been computed using the weighted
average number of shares of common stock outstanding during the year. Earnings
per average common share have been restated for the years 1997, 1996, and 1995
to reflect adoption of SFAS No. 128, "Earnings per Share."
FINANCIAL CONDITION
- ----------------------------
LIQUIDITY AND CAPITAL RESOURCES
Financing for construction requirements and operational needs is dependent
upon the cost and availability of external funds through capital markets and
from financial institutions. Access to funds is dependent upon factors such as
general economic conditions, regulation and the Company's credit rating.
From 1990 through 1996, we participated in a program where up to $35
million of our receivables were sold on an ongoing basis. The amount of
receivables that could have been sold any time depended upon seasonal
fluctuations in the amount of eligible receivables. In December 1996, sales of
accounts receivable were reduced to zero and the program was terminated in early
1997. To replace this short-term liquidity program, our committed bank borrowing
capacity was increased by $25 million in 1997.
The Company has an effective shelf registration statement and all
regulatory approvals necessary to issue up to $140 million of medium-term notes.
At December 31, 1997 and 1996, there was $34.2 million and $65.2 million,
respectively, of short-term debt outstanding in the form of commercial paper
borrowings. Short-term debt decreased as a result of the net increase in
medium-term notes outstanding in 1997. Currently, we have a $100 million
revolving credit facility, which is scheduled to continue through June 2000, and
a $25 million revolving credit facility, which is scheduled to expire in March
1998. We expect to extend
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<PAGE> 8
the term of the $25 million facility for another year prior to its scheduled
expiration date. Both credit facilities support the issuance of commercial
paper. Uncommitted lines of credit with banks totaling $20 million are available
to meet short-term working capital needs. Additionally, at December 31, 1997,
one of our nonregulated consolidated subsidiaries held $12.7 million of cash and
marketable securities.
CASH GENERATION AND CASH REQUIREMENTS
During 1997, cash flows from our operating activities generated $117.8
million as shown in the Consolidated Statements of Cash Flows. Net cash provided
by operating activities resulted from net income, adjusted for noncash charges
to income, and changes in working capital. Net cash used in investing activities
is related to additions to utility plant, including the purchase of Teche's
assets, and changes in utility and nonutility investments. Net cash used in
financing activities resulted principally from the payment of dividends to
shareholders and the changes in short-term and long-term financing activities.
In recent years, our construction program has consisted primarily of
enhancements to the transmission and distribution systems. Additions to utility
plant for 1997 as shown in the Consolidated Statements of Cash Flows include the
$22.4 million acquisition of the former business and property of Teche. In 1996,
we completed $10 million in additions to our Energy Control Center. Utility
expenditures, excluding AFUDC, totaled $54.1 million in 1997 and $60 million in
1996.
Construction expenditures, excluding AFUDC, for 1998 are estimated to be
$54.9 million and for the five-year period ending 2002 are expected to total
$253 million. More than half of the planned construction in the five-year period
will support line extensions and substation upgrades to accommodate new business
and load growth. Some investment will be made to rehabilitate older
transmission, distribution and generation assets. We will also continue to
invest in technology to allow us to operate more efficiently.
All of the construction requirements were funded internally in 1997 as
compared to 96% in 1996 and 93% in 1995. Substantially all of the construction
requirements for 1998 and for the five-year period ended 2002 are expected to be
funded internally.
Other capital requirements in 1996 and 1995 were funded by the issuance of
debt.
Scheduled maturities of debt and preferred stock will total about $15.3
million for 1998 and approximately $121.6 million for the five-year period
ending 2002. In 1991, we began a common stock repurchase program, and as part of
that program, up to $23 million of common stock may be repurchased in the
future. No shares of common stock were repurchased in 1997 or 1996.
The Company has committed to provide credit support up to $10 million for
working capital and electricity or natural gas commodity positions for CLECO
ENERGY, L.L.C. Commitments for asset development projects will be made as they
occur up to $5 million per year for the next five years.
RETAIL RATES
Retail rates regulated by the LPSC account for 95% of our 1997 revenues.
Fuel costs and monthly fuel adjustment billing factors are subject to audit by
the LPSC. In the past, we have sought increases in base rates to reflect the
cost of service related to plant facility additions and increases in operating
costs. If we were to request an increase in our rates and adequate rate relief
were not granted on a timely basis, our ability to attract capital at reasonable
costs to finance our operations and capital improvements might be impaired.
The LPSC elected in 1993 to review the earnings of all electric, gas, water
and telecommunications utilities regulated by it to determine whether the
returns on equity of these companies may be higher than returns that might be
awarded in the current economic environment. In 1996, the LPSC approved a
settlement of our earnings review, providing our customers with lower
electricity rates.
8
<PAGE> 9
The first rate decrease of $3 million annually was effective November 1, 1996,
with a second decrease of an additional $2 million annually effective January 1,
1998. The terms of this settlement will be effective for a five-year period.
During the five-year period, which began November 1, 1996, a rate
stabilization plan is in place. This plan allows the Company to retain all
earnings equating to a regulatory return on equity up to and including 12.25% on
its regulated utility operations. Any earnings which result in a return on
equity over 12.25%, up to and including 13%, will be shared equally between the
Company and our customers, which effectively allows us the opportunity to
realize a regulatory rate of return of up to 12.625%. Any earnings above 13%
will be refunded fully to customers.
During the five-year period 1997-2001, our revenues and return on equity
will be reviewed each year by the LPSC. If the Company is found to be achieving
a regulatory return on equity in any given year which requires a refund to
customers, the refund will be made in the form of billing credits during the
months of July, August and September following the evaluation period.
During the five-year rate stabilization period, we will have the right to
apply for a rate increase if a significant event affecting our earnings would
justify it, such as regulatory or economic changes, major hurricane damage or
other unforeseen circumstances. During the period, we will also be able to
propose for LPSC consideration any revenue-neutral rate design changes we feel
appropriate, such as revenue redistribution among customer classes which may be
warranted. During the period, the LPSC may amend or modify any of the
settlement's terms should the LPSC determine changes are warranted by the public
interest.
In November 1997, the LPSC issued an order in a generic docket which
promulgated new standards for the monthly Fuel Cost Adjustment (FCA) rate
filings of electric companies under its jurisdiction. The order adopted new
rules and procedures for the monthly FCA computation and changes in reporting of
fuel and purchased power costs to be implemented in 1998 after final LPSC
approval. Although the order narrows the types of costs that can be included in
the FCA, the changes are expected to have no effect upon our financial position
or results of operations, as costs no longer includable in the FCA will be
granted as an increase in base rates under the provisions of the order.
INFLATION AND FUEL COSTS
The Company is a capital-intensive electric utility. As such, we are
affected by inflation since depreciation, which is based on the historical cost
of assets, will in all likelihood not fully reflect the cost of replacing
assets. Although the cost of fuel used for electric generation is a major
component of total costs, we are not currently exposed to the effects of market
fluctuations in fuel prices since fuel costs are currently recovered from
customers through fuel adjustment clauses.
YEAR 2000
We are currently conducting an inventory and evaluation of our computers
and computer programs to see how they will be affected by the "year 2000" issue.
The issue arises in some computer systems because there is a two-digit
representation of the calendar year which is a carryover from earlier
generations of computers when data storage costs were at a premium. In this
convention, the year 1999 would be represented by "99" and the year 2000 by
"00". Computer systems using a two-digit year may improperly calculate due
dates, lead times for orders, billing calculations for late payments and
interest computations.
Our operating systems programs and major application programs for
accounting, billing, cash management, energy control and materials management
are licensed from outside software vendors who provide periodic updates and
enhancements to their computer software. We have received and have a schedule
for installing modifications from most of these vendors, converting them to a
four-digit date, or otherwise resolving the year 2000 problem. Our other vendors
are scheduled to provide program modifications in time for us to install them by
the end of 1998. In addition, there are more than 1,100 personal computers in
use by our employees, a number of
9
<PAGE> 10
computer programs unique to a single or a small group of employees, and a number
of analog devices in our communications and power station systems. We have been
conducting an inventory of the computer devices and programs used in personal
computers and analyzing whether they will need year 2000 modification and will
be in compliance by the year 2000.
Management anticipates the remaining costs of year 2000 compliance of its
computer devices and programs will not be significant because of the nature of
our business; our operations primarily rely upon the delivery of boiler fuels,
electrical materials and supplies, the wholesale market for electricity and its
transmission, the financial markets and the banking system. To the extent that
any of these markets are seriously affected or disrupted by year 2000 issues,
our operations could be adversely affected.
ENVIRONMENTAL MATTERS
The Company is subject to federal, state and local laws and regulations
governing the protection of the environment. Violations of these laws and
regulations may result in substantial fines and penalties. We have obtained all
material environmental permits necessary for our operations and believe we are
in substantial compliance with these permits, as well as all applicable
environmental laws and regulations. We anticipate that existing environmental
rules will not affect operations significantly, but some capital improvements
may have to be made in response to new environmental programs expected in the
next few years.
Implementation of Phase I of the Clean Air Act will not require us to
reduce sulfur emissions at our solid-fuel generating units, which either burn
low-sulfur coal or utilize pollution control equipment. Installation of
continuous emission monitoring equipment on our generating units was completed
in 1996 at a cost of approximately $3 million. Although Phase II of the
legislation, effective in 2000, involves more stringent limits on emissions,
these requirements should not significantly affect the operation of our
generating units. However, some capital investment may be necessary in order to
comply with Phase II requirements. Capital expenditures for environmental
matters were $0.4 million in 1997 and are estimated to be $0.6 million for 1998.
REGULATORY MATTERS
In 1996, the FERC issued rules requiring open access to utilities
transmission systems. The open access provisions require FERC-regulated electric
utilities to offer third parties access to transmission under comparable terms
and conditions as the utilities' use of their own systems. Providing unbundled
transmission services to firm-requirements customers may have significant
financial consequences to the utility industry. Providing open access for
non-firm sales may have significant effects on utility operations. Currently, we
have three wholesale full-requirements customers representing about 0.9% of our
total kilowatt-hour sales to regular customers.
Federal and state regulators and legislators are studying potential effects
of deregulating the vertically integrated utility systems and providing retail
customers a choice of supplier. At this time, it is not possible to predict
when, if, or to what extent, retail customers will be able to choose their
electric service suppliers. The regulatory requirement to serve customers and
industry standards for reliability of electric supply have resulted in the
construction of facilities sufficient to meet peak load conditions with a margin
for reserve.
With customer choice, above market costs associated with utility services
specifically dedicated to, or used by, departing customers (stranded costs)
would have to be paid by the departing customers, absorbed by remaining and new
customers or written off by the Company.
The Company has recorded regulatory assets and liabilities, primarily for
the effects of income taxes, as a result of past rate actions of our regulators,
pursuant to Statement of Financial Accounting Standards No. 71, "Accounting for
the Effects of Certain Types of Regulation" (SFAS 71). The effects of potential
deregulation of the industry or possible future changes in the method of rate
regulation of the Company could require the Company to discontinue the
application of SFAS 71, pursuant to Statement of Financial Accounting Standards
No. 101, "Regulated Enterprises -- Accounting for the Discontinuation of
Application of FASB Statement No. 71"
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<PAGE> 11
(SFAS 101). At December 31, 1997, the Company had recorded $52.8 million of
regulatory assets, net of regulatory liabilities, because of the regulatory
requirement to flow through the tax benefits of accelerated deductions to
current customers and an implied regulatory compact that future customers would
pay when the Company paid the additional taxes. These differences occur over the
lives of relatively long-lived assets, up to 30 years or more. Under the current
regulatory and competitive environment, the Company believes that these
regulatory assets are fully recoverable. However, if in the future, as a result
of regulatory changes or increased competition, the Company's ability to recover
these regulatory assets would not be probable, then to the extent that these
regulatory assets were determined not to be recoverable, the Company would be
required to write off or write down these assets.
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
(SFAS 121), establishes accounting standards for determining if long-lived
assets are impaired, and when and how losses, if any, should be recognized. The
Company believes that the net cash flows that will result from the operation of
its assets are sufficient to cover the carrying value of the assets.
The Emerging Issues Task Force (EITF) assists the Financial Accounting
Standards Board (FASB) in identifying emerging issues affecting financial
reporting. In 1997, the EITF reached a consensus in Issue No. 97-4:
"Deregulation of the Pricing of Electricity -- Issues Related to the Application
of SFAS No. 71 and No. 101." EITF 97-4 specified that SFAS No. 71 should be
discontinued at a date no later than when the details of a transition plan
toward the deregulation of electric rates for all or a portion of the entity
subject to such plan are known. However, other factors could cause the
discontinuation of SFAS No. 71 before that date. Additionally, EITF 97-4
establishes that regulatory assets to be recovered through cash flows derived
from another portion of the entity which continues to apply SFAS No. 71 should
not be written off, but rather, should continue to be considered regulatory
assets of the separable portion which will continue to apply SFAS No. 71.
NEW ACCOUNTING STANDARDS
Periodically, the FASB issues Statements of Financial Accounting Standards
(SFAS). These standards reflect accounting, reporting and disclosure
requirements the Company should follow in the accumulation of financial data and
in the presentation of financial statements. The FASB, a nongovernmental
organization, is the primary source of generally accepted accounting principles
within the United States.
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income" effective for fiscal years beginning after December 15, 1997. Adoption
of this statement will affect only financial statement presentation and will not
affect our financial position or results of operations.
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information" effective for financial statements for
periods beginning after December 15, 1997. Adoption of this statement will
affect only financial statement disclosure and will not affect our financial
position or results of operations. This Statement need not be applied to interim
financial statements in the initial year of its application, but comparative
information for interim periods in the initial year of application is to be
reported in financial statements for interim periods in the second year of
application.
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<PAGE> 12
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Annual Report to Shareholders includes "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. All statements
other than statements of historical fact included in this Report, including,
without limitation, the statements under "Management's Discussion and Analysis
of Results of Operations and Financial Condition -- Industry Developments,"
"-- Results of Operations," "-- Financial Condition -- Liquidity and Capital
Resources," "-- Financial Condition -- Regulatory Matters" and Note K to the
Consolidated Financial Statements contain forward-looking statements. Located
elsewhere in this Report are forward-looking statements regarding sales growth,
capital expenditures, the settlement of our earnings review approved by the LPSC
in October 1996, our shelf registration statement, the effect of certain recent
FERC regulations, future legislative and regulatory changes affecting electric
utilities, and other matters. Although we believe the expectations reflected in
such forward-looking statements are reasonable, such forward-looking statements
are based on numerous assumptions (some of which may prove to be incorrect) and
are subject to risks and uncertainties which could cause the actual results to
differ materially from our expectations. Forward-looking statements have been
and will be made in written documents and oral presentations by management. Such
statements are based on management's beliefs as well as assumptions made by and
information currently available to management. When used in our documents or
oral presentations, the words "anticipate," "estimate," "expect," "objective,"
"projection," "forecast," "goal" and similar expressions are intended to
identify forward-looking statements. In addition to any assumptions and other
factors referred to specifically in connection with such forward-looking
statements, factors that could cause our actual results to differ materially
from those contemplated in any forward-looking statements include, among others,
the following:
Factors affecting utility operations such as unusual weather
conditions; catastrophic weather-related damage; unscheduled generation
outages; unusual maintenance or repairs; unanticipated changes to fuel
costs, gas supply costs, or availability constraints due to higher demand,
shortages, transportation problems or other developments; environmental
incidents; or electric transmission or gas pipeline system constraints;
Increased competition in the electric environment, including effects
of: industry restructuring, transmission system operation or
administration, retail wheeling or cogeneration;
Regulatory factors such as unanticipated changes in rate-setting
policies or procedures; recovery of investments made under traditional
regulation; and the frequency and timing of rate increases;
Financial or regulatory accounting principles or policies imposed by
the FASB, the Securities and Exchange Commission, FERC, LPSC, or similar
entities with regulatory or accounting oversight;
Economic conditions, including inflation rates and monetary
fluctuations;
Changing market conditions and a variety of other factors associated
with physical energy and financial trading activities, including, but not
limited to, price, basis, credit, liquidity, volatility, capacity,
transmission, interest rate and warranty risks;
Availability or cost of capital resulting from changes in the Company,
interest rates, and securities ratings or market perceptions of the
electric utility industry and energy-related industries;
Employee workforce factors, including changes in key executives;
Legal and regulatory delays and other obstacles associated with
mergers, acquisitions or investments in joint ventures;
12
<PAGE> 13
Cost and other effects of legal and administrative proceedings,
settlements, investigations, claims and other matters; and
Changes in federal, state or local legislature requirements, such as
changes in tax laws or rates or environmental law and regulations.
The Company undertakes no obligation to update or revise any
forward-looking statements, whether as a result of changes in actual results,
changes in assumptions or other factors affecting such statements.
13
<PAGE> 14
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
For the Years Ended December 31
------------------------------------------
1997 1996 1995
------------ ------------ ------------
(In thousands, except share and per share
amounts)
<S> <C> <C> <C>
OPERATING REVENUES.................................... $456,245 $437,121 $396,227
Operating expenses
Fuel used for electric generation................... 136,009 115,642 108,322
Power purchased..................................... 44,590 55,609 27,367
Other operation..................................... 64,618 64,770 67,764
Restructuring charges............................... 1,891
Maintenance......................................... 23,286 23,489 22,616
Depreciation........................................ 45,890 43,441 41,164
Taxes other than income taxes....................... 33,422 29,595 29,063
Federal and state income taxes...................... 27,729 26,154 25,229
---------- ---------- ----------
Total operating expenses.................... 377,435 358,700 321,525
---------- ---------- ----------
OPERATING INCOME...................................... 78,810 78,421 74,702
Interest income....................................... 427 256 219
Allowance for other funds used during construction.... 620 1,134 1,912
Other income (expenses), net.......................... 1,248 333 74
---------- ---------- ----------
INCOME BEFORE INTEREST CHARGES........................ 81,105 80,144 76,907
---------- ---------- ----------
Interest charges
Interest on debt and other.......................... 27,549 27,492 27,998
Allowance for borrowed funds used during
construction..................................... (169) (590) (1,028)
Amortization of debt discount, premium and expense,
net.............................................. 1,206 1,107 1,234
---------- ---------- ----------
Total interest charges...................... 28,586 28,009 28,204
---------- ---------- ----------
NET INCOME............................................ 52,519 52,135 48,703
Preferred dividend requirements, net.................. 2,117 2,074 2,052
---------- ---------- ----------
NET INCOME APPLICABLE TO COMMON STOCK................. $ 50,402 $ 50,061 $ 46,651
========== ========== ==========
AVERAGE SHARES OF COMMON STOCK OUTSTANDING
Basic............................................... 22,459,770 22,442,683 22,417,522
========== ========== ==========
Diluted............................................. 23,864,031 23,857,967 23,847,119
========== ========== ==========
EARNINGS PER AVERAGE SHARE
Basic............................................... $2.24 $2.23 $2.08
========== ========== ==========
Diluted............................................. $2.18 $2.16 $2.02
========== ========== ==========
CASH DIVIDENDS PAID PER SHARE OF COMMON STOCK......... $1.57 $1.53 $1.49
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
14
<PAGE> 15
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
At December 31
------------------------
1997 1996
---------- ----------
(In thousands)
<S> <C> <C>
ASSETS
Utility plant (Notes A and B)
Property, plant and equipment............................. $1,506,949 $1,425,547
Accumulated depreciation.................................. (518,664) (480,486)
---------- ----------
Net property, plant and equipment......................... 988,285 945,061
Construction work-in-progress............................. 37,277 49,075
---------- ----------
Total utility plant, net............................ 1,025,562 994,136
---------- ----------
Investments and other assets (Note D)....................... 3,479 8,488
---------- ----------
Current assets
Cash and cash equivalents (Note A)........................ 18,015 20,307
Accounts receivable, net (Note C)
Customer accounts receivable............................ 28,822 23,145
Other accounts receivable............................... 18,601 20,767
Notes receivable.......................................... 930
Unbilled revenues......................................... 11,090 11,193
Fuel inventory, at average cost........................... 8,648 9,366
Material and supplies inventory, at average cost.......... 14,413 17,029
Other current assets...................................... 1,894 2,505
---------- ----------
Total current assets................................ 102,413 104,312
---------- ----------
Prepayments................................................. 8,331 8,683
---------- ----------
Regulatory assets -- deferred taxes (Note J)................ 115,285 103,839
---------- ----------
Other deferred charges...................................... 29,418 28,082
---------- ----------
Accumulated deferred federal and state income taxes (Note
J)........................................................ 76,556 74,231
---------- ----------
TOTAL ASSETS........................................ $1,361,044 $1,321,771
========== ==========
CAPITALIZATION AND LIABILITIES
Common shareholders' equity
Common stock, $2 par value, authorized 50,000,000 shares,
issued 22,762,754 and 22,760,154 shares at December 31,
1997 and 1996, respectively (Note F).................... $ 45,525 $ 45,520
Premium on capital stock.................................. 113,763 113,702
Retained earnings......................................... 255,549 240,414
Treasury stock, at cost, 299,842 and 307,577 shares at
December 31, 1997 and 1996, respectively................ (6,086) (6,242)
---------- ----------
Total common shareholders' equity................... 408,751 393,394
---------- ----------
Preferred stock (Note H)
Not subject to mandatory redemption....................... 30,102 30,280
Subject to mandatory redemption........................... 6,120 6,372
Deferred compensation related to preferred stock held by
ESOP...................................................... (18,766) (20,751)
Long-term debt, net (Note E)................................ 365,897 340,859
---------- ----------
Total capitalization................................ 792,104 750,154
---------- ----------
Current liabilities
Short-term debt (Note E).................................. 34,219 65,161
Long-term debt due within one year (Note E)............... 15,000 15,000
Accounts payable.......................................... 53,365 50,022
Customer deposits......................................... 20,172 19,761
Taxes accrued (Note J).................................... 12,211 5,806
Interest accrued.......................................... 7,681 7,521
Accumulated deferred fuel................................. 2,965 2,168
Other current liabilities................................. 5,102 3,252
---------- ----------
Total current liabilities........................... 150,715 168,691
---------- ----------
Deferred credits
Accumulated deferred federal and state income taxes
(Note J)................................................ 296,123 281,684
Accumulated deferred investment tax credits (Note J)...... 29,574 31,364
Regulatory liabilities -- deferred taxes (Note J)......... 62,468 60,058
Other deferred credits.................................... 30,060 29,820
---------- ----------
Total deferred credits.............................. 418,225 402,926
---------- ----------
Commitments and contingencies (Notes E, F, H, I, J and K)
TOTAL CAPITALIZATION AND LIABILITIES................ $1,361,044 $1,321,771
========== ==========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
15
<PAGE> 16
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the Years Ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income................................................ $ 52,519 $ 52,135 $ 48,703
Adjustments to reconcile net income to net cash provided
by operating activities
Depreciation and amortization......................... 47,719 44,548 42,398
Allowance for funds used during construction.......... (789) (1,724) (2,940)
Amortization of investment tax credits................ (1,790) (1,809) (1,814)
Deferred income taxes................................. 2,908 3,818 2,854
Deferred fuel costs................................... 797 (1,483) (2,463)
Restructuring charge.................................. 1,285
Loss on disposition of utility plant, net............. (224) (20) (270)
Changes in assets and liabilities
Accounts receivable, net........................... (4,441) (26,837) (5,928)
Unbilled revenues.................................. 103 (8,095) (2,525)
Fuel, material and supplies inventories............ 3,334 (1,877) 611
Accounts payable................................... 2,058 (1,065) 7,621
Customer deposits.................................. 411 36 212
Taxes accrued...................................... 6,405 3,303 (759)
Interest accrued................................... 160 (1,388) 611
Other, net............................................ 7,321 1,251 1,343
-------- -------- --------
Net cash provided by operating activities.......... 117,776 60,793 87,654
-------- -------- --------
INVESTING ACTIVITIES
Additions to utility plant................................ (77,525) (64,425) (57,839)
Allowance for funds used during construction.............. 789 1,724 2,940
Sale of utility plant..................................... 417 482 546
Purchase of investments................................... (222) (420) (2,618)
Sale of investments....................................... 1 807 14,278
-------- -------- --------
Net cash used in investing activities.............. (76,540) (61,832) (42,693)
-------- -------- --------
FINANCING ACTIVITIES
Issuance of common stock.................................. 66 288 379
Repurchase of common stock................................ (16) (16)
Redemption of preferred stock............................. (252) (238) (310)
Issuance of long-term debt................................ 40,000 45,000 25,000
Retirement of long-term debt.............................. (15,000) (50,000) (15,481)
Increase (decrease) in short-term debt, net............... (30,942) 42,099 (5,915)
Dividends paid on common and preferred stock, net......... (37,384) (36,408) (35,453)
-------- -------- --------
Net cash provided by (used in) financing
activities....................................... (43,528) 725 (31,780)
-------- -------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS........ (2,292) (314) 13,181
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR.............. 20,307 20,621 7,440
-------- -------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR.................... $ 18,015 $ 20,307 $ 20,621
======== ======== ========
Supplementary cash flow information
Interest paid (net of amount capitalized)................. $ 28,770 $ 29,881 $ 27,744
======== ======== ========
Income taxes paid......................................... $ 23,752 $ 20,351 $ 24,357
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
16
<PAGE> 17
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN
COMMON SHAREHOLDERS' EQUITY
<TABLE>
<CAPTION>
For the Years Ended December 31, 1995, 1996 and 1997
-------------------------------------------------------------------
Common Stock Premium Treasury Stock
--------------------- on Capital Retained ----------------
Shares Amount Stock Earnings Shares Cost
---------- ------- ------------ -------- ------- ------
(In thousands, except share and per share amounts)
<S> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1995............ 22,720,074 $45,440 $113,070 $211,198 329,433 $6,681
Redemptions of preferred stock...... 39
Incentive stock options exercised... 25,030 50 329
Issuance of treasury stock.......... 6 (10,987) (222)
Dividend requirements, preferred
stock, net........................ (2,052)
Cash dividends paid, common stock,
$1.49 per share................... (33,401)
Change in unrealized holding loss on
available-for-sale securities,
net............................... 240
Net income.......................... 48,703
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1995.......... 22,745,104 45,490 113,444 224,688 318,446 6,459
---------- ------- -------- -------- ------- ------
Redemptions of preferred stock...... 31
Incentive stock options exercised... 15,050 30 220
Issuance of treasury stock.......... 7 (11,484) (233)
Incentive shares forfeited.......... 615 16
Dividend requirements, preferred
stock, net........................ (2,073)
Cash dividends paid, common stock,
$1.53 per share................... (34,336)
Net income.......................... 52,135
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1996.......... 22,760,154 45,520 113,702 240,414 307,577 6,242
---------- ------- -------- -------- ------- ------
Redemptions of preferred stock...... 18
Incentive stock options exercised... 2,600 5 38
Issuance of treasury stock.......... 5 (8,528) (172)
Incentive shares forfeited.......... 793 16
Dividend requirements, preferred
stock, net........................ (2,118)
Cash dividends paid, common stock,
$1.57 per share................... (35,266)
Net income.......................... 52,519
---------- ------- -------- -------- ------- ------
BALANCE, DECEMBER 31, 1997.......... 22,762,754 $45,525 $113,763 $255,549 299,842 $6,086
========== ======= ======== ======== ======= ======
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
17
<PAGE> 18
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRESENTATION AND REGULATION
Central Louisiana Electric Company, Inc. (the Company) provides electric
service to a diversified base of residential, commercial and industrial
customers in 23 parishes of Louisiana. The Company maintains its accounts in
accordance with the Uniform System of Accounts prescribed for electric utilities
by the Federal Energy Regulatory Commission (FERC), as adopted by the Louisiana
Public Service Commission (LPSC). The Company's retail rates for residential,
commercial and industrial customers and other retail sales are regulated by the
LPSC, and its rates for transmission services and wholesale power sales are
regulated by the FERC.
The consolidated financial statements include the accounts of the Company
and all subsidiaries in which the Company holds at least a majority interest.
Intercompany balances and transactions are eliminated in consolidation.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
RECLASSIFICATION
Certain reclassifications have been made to the 1996 and 1995 consolidated
financial statements to conform to the presentation used in the 1997
consolidated financial statements. These reclassifications had no effect on net
income applicable to common stock or total common shareholders' equity.
UTILITY PLANT AND DEPRECIATION
Utility plant is stated at the original cost of construction, which
includes certain materials, labor, payroll taxes and benefits, administrative
and general costs, and the estimated cost of funds used during construction. The
cost of repairs and minor replacements is charged as incurred to the appropriate
operating expense and clearing accounts. The cost of improvements is
capitalized. Upon retirement or disposition, the recorded cost of depreciable
plant and the cost of removal, net of salvage value, are charged to accumulated
depreciation.
The provision for depreciation is computed using the straight-line method
at rates which will amortize the unrecovered cost of depreciable property over
its estimated useful life. Annual depreciation provisions expressed as a
percentage of average depreciable property were 3.27% for 1997, 3.21% for 1996
and 3.19% for 1995.
CASH EQUIVALENTS
The Company considers highly liquid, marketable securities and other
similar instruments with original maturity dates of three months or less at the
time of purchase to be cash equivalents.
INCOME TAXES
Deferred income taxes are provided at the current enacted income tax rate
on all temporary differences between tax and book bases of assets and
liabilities. The Company recognizes regulatory assets and liabilities for the
tax effect of temporary differences, which, to the extent past ratemaking
practices are continued by regulators, will be realized over the accounting
lives of the related properties.
18
<PAGE> 19
INVESTMENT TAX CREDITS
Investment tax credits which were deferred for financial statement purposes
are amortized to income over the estimated service lives of the properties which
gave rise to the credits.
DEBT EXPENSE, PREMIUM AND DISCOUNT
Expense, premium and discount applicable to debt securities are amortized
to income ratably over the lives of the related issues. Expense and call premium
related to refinanced debt are amortized over the remaining life of the original
issue.
REVENUES AND FUEL COSTS
Revenues from sales of electricity are recognized based upon the amount of
energy delivered. The cost of fuel is currently recovered from customers through
fuel adjustment clauses, based upon fuel costs incurred in prior months. These
adjustments are subject to audit and final determination by regulators.
ALLOWANCE FOR FUNDS USED DURING CONSTRUCTION (AFUDC)
The capitalization of AFUDC is a utility accounting practice prescribed by
the FERC and the LPSC. AFUDC represents the estimated cost of financing
construction work-in-progress. AFUDC does not represent a current source of
cash, but under regulatory practices, a return on and recovery of AFUDC is
permitted in setting rates charged for utility services. The composite AFUDC
rate, including borrowed and other funds on a combined basis, for 1997 was
13.97% on a pre-tax basis (8.59% net of tax), 13.33% on a pre-tax basis (8.20%
net of tax) for 1996, and 15.10% on a pre-tax basis (9.29% net of tax) for 1995.
DERIVATIVES
From time to time, the Company or its subsidiaries may limit exposure to
interest rate risk or electricity or generator boiler-fuel market price risk by
using hedging transactions. In each case, the transactions reflect underlying
indebtedness or commodity requirements. No transactions are entered into for
speculative purposes. The Company did not engage in any interest rate hedges in
1997 and had no significant amounts of natural gas futures transactions
outstanding at December 31, 1997.
RECENT ACCOUNTING STANDARDS
Statements of Financial Accounting Standards No. 130, "Reporting
Comprehensive Income," and No. 131, "Disclosure about Segments of an Enterprise
and Related Information," are required to be implemented during the Company's
fiscal year ending December 31, 1998. These pronouncements are not expected to
have a significant effect on the Company's consolidated financial condition and
results of operations.
EARNINGS PER AVERAGE COMMON SHARE
Earnings per average common share have been computed using the weighted
average number of shares of common stock outstanding during the year. Earnings
per average common share have been restated for the years 1997, 1996 and 1995 to
reflect the Company's adoption of SFAS No. 128, "Earnings per Share." The
following table is a reconciliation of the components in the calculation of
basic and diluted earnings per share.
19
<PAGE> 20
<TABLE>
<CAPTION>
For the year ended December 31
(In thousands, except per share amounts)
1997 1996
------------------------------------ ---------------------------
Per-
INCOME SHARES share Income Shares
(NUMERATOR) (DENOMINATOR) Amount (Numerator) (Denominator)
----------- ------------- ------ ----------- -------------
<S> <C> <C> <C> <C> <C>
Net income............ $52,519 $52,135
Less: preferred
dividend
requirements, net.... (2,117) (2,074)
------- -------
BASIC EPS
Income available for
common
shareholders......... $50,402 22,460 $2.24 $50,061 22,443
=====
EFFECT OF DILUTIVE
SECURITIES
Stock option grants... 7 10
Convertible ESOP
preferred stock...... 1,646 1,397 1,549 1,405
------- ------ ------- ------
DILUTED EPS
Income available to
common shareholders +
assumed
conversions.......... $52,048 23,864 $2.18 $51,610 23,858
======= ====== ===== ======= ======
<CAPTION>
For the year ended December 31
(In thousands, except per share amounts)
1996 1995
------ ------------------------------------
Per- Per-
share Income Shares share
Amount (Numerator) (Denominator) Amount
------ ----------- ------------- ------
<S> <C> <C> <C> <C>
Net income............ $48,703
Less: preferred
dividend
requirements, net.... (2,052)
-------
BASIC EPS
Income available for
common
shareholders......... $2.23 $46,651 22,418 $2.08
===== =====
EFFECT OF DILUTIVE
SECURITIES
Stock option grants... 13
Convertible ESOP
preferred stock...... 1,483 1,416
------- ------
DILUTED EPS
Income available to
common shareholders +
assumed
conversions.......... $2.16 $48,134 23,847 $2.02
===== ======= ====== =====
</TABLE>
NOTE B -- JOINTLY OWNED GENERATING UNITS
Two electric generating units operated by the Company are jointly owned
with other utilities. The Company's proportionate share of operation and
maintenance expenses associated with these two units is reflected in the
financial statements.
<TABLE>
<CAPTION>
At December 31, 1997
-------------------------
Rodemacher Dolet Hills
Unit #2 Unit #1
---------- -----------
(Dollar amounts in
thousands)
<S> <C> <C>
Percentage of ownership..................................... 30% 50%
Utility plant in service.................................... $82,251 $272,618
Accumulated depreciation.................................... $39,155 $ 95,312
Unit capability (thousand kilowatts)........................ 523.0 650.0
Share of capability (thousand kilowatts).................... 156.9 325.0
</TABLE>
NOTE C -- RECEIVABLES
During 1996, the Company participated in a program in which it sold an
ownership interest in certain types of accounts receivable and unbilled
revenues. A maximum of $35 million of receivables could be sold at any time and
new receivables were sold as previously sold receivables were collected. The
Company discontinued selling receivables in late 1996 and terminated its
participation in the program in early 1997.
<TABLE>
<CAPTION>
For the year ended
December 31
------------------
1997 1996
------- -------
(In thousands)
<S> <C> <C>
Receivables sold but not collected (at
year-end)............................. $ 0 $ 0
Average amount of receivables sold...... $ 0 $33,706
Costs charged to operating expense...... $ 0 $ 1,911
Receivables subject to repurchase (at
year-end)............................. $ 0 $ 0
Accumulated provision for uncollectible
accounts (at year-end)................ $ 684 $ 681
</TABLE>
20
<PAGE> 21
NOTE D -- FAIR VALUE OF FINANCIAL INSTRUMENTS
The amounts reflected in the financial statements at December 31, 1997 and
1996 for cash and cash equivalents, accounts receivable, accounts payable and
short-term debt approximate fair value because of their short-term nature. The
fair value of investments at December 31, 1997 and 1996 is estimated based on
quoted market prices for these or similar investments. The fair value of the
Company's long-term debt and nonconvertible preferred stock is estimated based
upon the quoted market price for the same or similar issues or by a discounted
present value analysis of future cash flows using current rates obtainable by
the Company for debt and preferred stock with similar maturities. The fair value
of convertible preferred stock is estimated assuming its conversion into common
stock at the market price per common share at December 31, 1997 and 1996, with
proceeds from the sale of the common stock used to repay the principal balance
of the Company's loan to the ESOP.
<TABLE>
<CAPTION>
At December 31
---------------------------------------------
1997 1996
--------------------- ---------------------
CARRYING Estimated Carrying Estimated
VALUE Fair Value Value Fair Value
-------- ---------- -------- ----------
(In thousands)
<S> <C> <C> <C> <C>
Investments..................................... $ 807 $ 807 $ 585 $ 585
Long-term debt.................................. $381,260 $395,183 $356,260 $364,784
Preferred stock:
Not subject to mandatory redemption........... $ 11,336 $ 24,248 $ 9,529 $ 15,889
Subject to mandatory redemption............... $ 6,120 $ 5,058 $ 6,372 $ 5,490
</TABLE>
NOTE E -- DEBT
The Company has revolving credit facilities totaling $125 million. A $100
million facility, which is scheduled to continue to June 15, 2000, and a $25
million facility, which is scheduled to expire on March 19, 1998, provide for
uncollateralized borrowings at prevailing interest rates, and the $100 million
facility provides for borrowings at interest rates established by competitive
bid. Commitment fees are based upon the Company's lowest secured debt ratings
and are currently 0.10% on the $100 million facility and 0.05% on the $25
million facility. Compensating balances are not maintained in connection with
either revolving credit facility. In addition, various uncommitted borrowing
arrangements with banks total $20 million. The banks are not obligated to lend
under uncommitted arrangements, and any borrowings are made at negotiated
interest rates and are uncollateralized. No fees are paid on any of the
uncommitted arrangements, nor are compensating balances required. The weighted
average interest rate on short-term debt was 5.97% at December 31, 1997 and
5.56% at December 31, 1996.
21
<PAGE> 22
Total indebtedness for the two-year period ended December 31, 1997 was as
follows:
<TABLE>
<CAPTION>
At December 31
-------------------
1997 1996
-------- --------
(In thousands)
<S> <C> <C>
Commercial paper, net....................................... $ 34,219 $ 65,161
======== ========
Total short-term debt..................................... $ 34,219 $ 65,161
======== ========
First mortgage bonds Series X, 9 1/2%, due 2005............. $ 60,000 $ 60,000
Pollution control revenue bonds, variable rate, due 2018.... 61,260 61,260
Medium-term notes
9.10%, due 1997........................................... 5,000
9.15%, due 1997........................................... 10,000
7.85%, due 2000........................................... 25,000 25,000
7.55%, due 2004, callable at 100%, 2002................... 15,000 15,000
7.50%, due 2004, callable at 100%, 2002................... 10,000 10,000
7.00%, due 2003........................................... 10,000 10,000
6.90%, due 1998........................................... 15,000 15,000
5.90%, due 1999........................................... 10,000 10,000
6.55%, due 2003........................................... 15,000 15,000
6.33%, due 2002........................................... 25,000 25,000
5.78%, due 2001........................................... 10,000 10,000
6.20%, due 2006........................................... 15,000 15,000
6.42%, due 2001........................................... 15,000 15,000
6.95%, due 2006........................................... 10,000 10,000
6.53%, due 2007........................................... 10,000 10,000
6.32%, due 2006........................................... 15,000 15,000
6.28%, due 2008, putable at 100%, 1999.................... 20,000 20,000
7.50%, due 2007........................................... 15,000
7.00%, due 2007........................................... 25,000
-------- --------
Total long-term debt.............................. $381,260 $356,260
Amount due within one year.................................. (15,000) (15,000)
Unamortized premium and discount, net....................... (363) (401)
-------- --------
Total long-term debt, net.............................. $365,897 $340,859
======== ========
</TABLE>
<TABLE>
<CAPTION>
1998 1999 2000 2001 2002 Thereafter
------- ------- ------- ------- ------- ----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Amounts payable under long-
term debt agreements........ $15,000 $30,000 $25,000 $25,000 $25,000 $261,260
======= ======= ======= ======= ======= ========
</TABLE>
NOTE F -- COMMON STOCK
In association with incentive compensation plans in effect during the
three-year period ended December 31, 1997, certain officers and key employees
were awarded shares of restricted common stock. The cost of the restricted stock
awards, as measured by the market value of the common stock at the time of the
grant, is recorded as compensation expense during the periods in which the
restrictions lapse. Had the Company accounted for the value of these awards
after 1994 using an estimate of their "fair value," including the effects of
historical volatility of the market price, rather than their "intrinsic value,"
additional compensation expense of $57,512, $104,272 and $42,154 would have been
recorded for the years 1997, 1996 and 1995, respectively.
The Company makes no charge to expense with respect to the granting of
options. At December 31, 1997, all options were exercisable. The number of
shares of restricted stock previously granted for which restrictions had not
lapsed totaled 50,946 shares.
22
<PAGE> 23
Changes in incentive shares for the three-year period ended December 31,
1997 were as follows:
<TABLE>
<CAPTION>
Incentive Shares
----------------------------------------------
Option Price Unexercised Available for
per Share Option Shares Future Grants
------------ ------------- -------------
<S> <C> <C> <C>
Balance, January 1, 1995............ 59,230 757,431
------- -------
Options exercised................... $14.75 (18,230)
$16.78 (6,800)
Restricted stock granted............ (11,186)
------- -------
Balance, December 31, 1995.......... 34,200 746,245
------- -------
Options exercised................... $14.75 (1,250)
$16.78 (13,800)
Options lapsed...................... $14.75 (750)
Restricted stock granted............ (12,751)
Restricted stock forfeited.......... 615
Incentive stock awarded............. (2,258)
------- -------
Balance, December 31, 1996.......... 18,400 731,851
------ ------- -------
Options exercised................... $16.78 (2,600)
Restricted stock granted............ (20,904)
Restricted stock forfeited.......... 793
Incentive stock awarded............. (3,701)
------- -------
BALANCE, DECEMBER 31, 1997.......... 15,800 708,039
======= =======
</TABLE>
The Company's charter and various debt agreements to which the Company is a
party contain covenants which restrict the amount of retained earnings that may
be distributed as dividends to common shareholders. The most restrictive
covenant requires that common shareholders' equity be not less than 35% of total
capitalization, including short-term debt. At December 31, 1997, approximately
$114.3 million of retained earnings was not restricted.
NOTE G -- SUPPLEMENTARY PROFIT AND LOSS INFORMATION
<TABLE>
<CAPTION>
For the years ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
<S> <C> <C> <C>
Operating revenue derived from one customer................. $36,260 $33,359 $28,695
======= ======= =======
Other taxes included in the consolidated income
statements................................................ $33,422 $29,595 $29,063
Other taxes capitalized to plant............................ 1,325 1,049 1,010
------- ------- -------
Total other taxes........................................... $34,747 $30,644 $30,073
======= ======= =======
Other taxes consist of:
Parish and municipal property............................. $21,436 $16,302 $15,868
State and municipal franchise............................. 10,204 10,434 10,072
Other..................................................... 3,107 3,908 4,133
------- ------- -------
Total other taxes........................................... $34,747 $30,644 $30,073
======= ======= =======
</TABLE>
NOTE H -- PREFERRED STOCK
In connection with the establishment of the ESOP, the Company sold 300,000
shares of 8.125% convertible preferred stock to the ESOP. Each share of
preferred stock is convertible into 4.8 shares of common stock. The amount of
total capitalization reflected in the consolidated financial statements has been
reduced by an amount of deferred compensation expense related to the shares of
convertible preferred stock which have not yet been allocated to ESOP
participants. The amount
23
<PAGE> 24
shown in the consolidated financial statements for preferred dividend
requirements in 1997, 1996 and 1995 has been reduced by $587,000, $658,000 and
$716,000, respectively, to reflect the benefit of the income tax deduction for
dividend requirements on unallocated shares held by the ESOP.
Upon involuntary liquidation, preferred shareholders are entitled to
receive par value for shares held before any distribution is made to common
shareholders. Upon voluntary liquidation, preferred shareholders are entitled to
receive the redemption price per share applicable at the time such liquidation
occurs plus any accrued dividends.
Information about the components of preferred stock capitalization is as
follows:
<TABLE>
<CAPTION>
Balance Balance BALANCE BALANCE
Jan. 1, Dec. 31, DEC. 31, DEC. 31,
1995 Change 1995 Change 1996 CHANGE 1997
--------- ------- --------- ------- --------- ------- ---------
(In thousands, except share amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
CUMULATIVE PREFERRED STOCK, $100 par
value
NOT SUBJECT TO MANDATORY REDEMPTION
4.50%............................... $ 1,029 $ 1,029 $ 1,029 $ 1,029
Convertible, Series of 1991,
variable rate..................... 29,719 $ (229) 29,490 $ (239) 29,251 $ (178) 29,073
--------- ------- --------- ------- --------- ------- ---------
$ 30,748 $ (229) $ 30,519 $ (239) $ 30,280 $ (178) $ 30,102
========= ======= ========= ======= ========= ======= =========
SUBJECT TO MANDATORY REDEMPTION
4.50%, Series of 1955............... $ 440 $ (40) $ 400 $ (40) $ 360 $ (40) $ 320
4.65%, Series of 1964............... 3,360 (140) 3,220 (140) 3,080 (140) 2,940
4.75%, Series of 1965............... 3,120 (130) 2,990 (58) 2,932 (72) 2,860
--------- ------- --------- ------- --------- ------- ---------
$ 6,920 $ (310) $ 6,610 $ (238) $ 6,372 $ (252) $ 6,120
========= ======= ========= ======= ========= ======= =========
Deferred compensation related to
convertible preferred stock held by
the ESOP............................ $ (24,404) $ 1,809 $ (22,595) $ 1,844 $ (20,751) $ 1,985 $ (18,766)
========= ======= ========= ======= ========= ======= =========
CUMULATIVE PREFERRED STOCK,
$100 par value
Number of Shares
Authorized.......................... 1,416,800 (2,700) 1,414,100 (1,975) 1,412,125 (2,125) 1,410,000
Issued and Outstanding.............. 376,676 (5,389) 371,287 (4,768) 366,519 (4,301) 362,218
========= ======= ========= ======= ========= ======= =========
CUMULATIVE PREFERRED STOCK,
$25 par value
Number of Shares Authorized (None
outstanding)........................ 3,000,000 3,000,000 3,000,000 3,000,000
========= ========= ========= =========
</TABLE>
Preferred stock, other than the convertible preferred stock held by the
ESOP, is redeemable at the Company's option, subject to 30 days' prior written
notice to holders. Preferred stock subject to mandatory redemption is redeemable
annually through sinking funds or purchase funds at prices of not more than $100
per share until all shares have been redeemed. The convertible preferred stock
is redeemable at any time at the Company's option. If the Company were to elect
to redeem the convertible preferred shares, shareholders may elect to receive
the optional redemption price or
24
<PAGE> 25
convert the preferred shares into common stock. The redemption provisions for
the various series of preferred stock are shown in the following table.
<TABLE>
<CAPTION>
Optional Redemption Mandatory Redemption
------------------- ----------------------------
Price Number of Price
Series per Share Shares Annually per Share
------ --------- --------------- ---------
<S> <C> <C> <C>
4.50%................................ $101
4.50%, Series of 1955................ $102 400 $100
4.65%, Series of 1964................ $102 1,400* $100
4.75%, Series of 1965................ $100 1,300* $100
Convertible, Series of 1991
Through March 31, 1998............. $103.25
Thereafter......................... $102.4375 to $100
</TABLE>
* The Company is required to offer holders of the Series of 1964 the opportunity
to redeem 1,400 shares each year and holders of the Series of 1965 the
opportunity to redeem 1,300 shares each year. Only shares actually tendered,
if any, are required to be redeemed.
NOTE I -- PENSION PLAN AND EMPLOYEE BENEFITS
Substantially all employees are covered by a noncontributory, defined
benefit pension plan. Benefits under the plan reflect an employee's years of
service, age at retirement and highest total average compensation for any
consecutive five calendar years during the last ten years of employment with the
Company. The Company's policy is to fund contributions to the employee pension
plan based upon actuarial computations utilizing the projected unit credit
method, subject to the Internal Revenue Service's full funding limitation. No
contributions to the pension plan were required during the three-year period
ended December 31, 1997.
<TABLE>
<CAPTION>
For the years ended December 31
---------------------------------
1997 1996 1995
--------- -------- --------
(In thousands)
<S> <C> <C> <C>
Service costs for benefits earned during the
period........................................... $ 2,984 $ 3,010 $ 2,498
Interest costs on projected benefit obligation..... 7,288 6,768 6,542
Actual gain on assets.............................. (10,290) (9,572) (8,920)
Net amortization and deferral...................... (970) (1,037) (1,037)
-------- ------- -------
Net pension benefit cost........................... $ (988) $ (831) $ (917)
======== ======= =======
Actuarial assumptions
Weighted average discount rate................... 7.00% 7.50% 7.00%
Rate of increase in future compensation.......... 5.00% 5.00% 5.00%
Rate of return on plan assets.................... 9.50% 9.50% 9.50%
</TABLE>
Employee pension plan assets are invested in the Company's common stock,
other publicly traded domestic common stocks, U.S. government, federal agency
and corporate obligations, an international equity fund, commercial real estate
funds and pooled temporary investments.
25
<PAGE> 26
The employee pension plan's funded status as determined by the actuary at
December 31, 1997 and 1996 is presented in the following table.
<TABLE>
<CAPTION>
1997 1996
--------- --------
(In thousands)
<S> <C> <C>
Actuarial present value of benefit obligation
Vested benefits........................................... $ (91,000) $(77,769)
Nonvested benefits........................................ (7,927) (3,648)
--------- --------
Accumulated benefit obligation............................ (98,927) (81,417)
Effect of projected future compensation levels............ (24,155) (16,307)
--------- --------
Projected benefit obligation for service rendered to date... (123,082) (97,724)
Plan assets at fair market value............................ 163,574 138,672
--------- --------
Plan assets in excess of projected benefit obligation....... 40,492 40,948
Unamortized transition asset................................ (7,943) (9,261)
Unrecognized net gain....................................... (26,101) (26,226)
--------- --------
Prepaid pension asset....................................... $ 6,448 $ 5,461
========= ========
</TABLE>
Effective January 1, 1998, the Company changed the method of calculating
fair market value of assets to reflect the difference between actual and
projected appreciation for the current year ratably over five years. Also, on
January 1, 1998, the Company increased the crediting rates for each year of
service but limited the maximum number of years of service credited to 35.
Substantially all employees are eligible to participate in a savings and
investment plan (401(k) Plan). The Company makes matching contributions to
401(k) Plan participants by allocating shares of convertible preferred stock
held by the ESOP. Compensation expense related to the 401(k) Plan is based upon
the value of shares of preferred stock allocated to ESOP participants and the
amount of interest incurred by the ESOP, less dividends on unallocated shares
held by the ESOP. At December 31, 1997 and 1996, the ESOP had allocated to
employees 109,668 and 90,905 shares, respectively.
The table below contains information about the 401(k) Plan and the ESOP:
<TABLE>
<CAPTION>
For the years ended December 31
--------------------------------
1997 1996 1995
-------- -------- --------
(In thousands)
<S> <C> <C> <C>
401(k) Plan expense.................................... $1,453 $1,490 $1,542
------ ------ ------
Dividend requirements to ESOP on convertible preferred
stock................................................ $2,367 $2,378 $2,396
------ ------ ------
Interest incurred by ESOP on its indebtedness.......... $1,604 $1,746 $1,905
------ ------ ------
Company contributions to ESOP.......................... $1,235 $1,239 $1,071
------ ------ ------
</TABLE>
The Company's retirees and their dependents are eligible to receive health,
dental and life insurance benefits. The Company recognizes the expected cost of
these benefits during the periods in which the benefits are earned.
26
<PAGE> 27
The components of net postretirement benefit cost for 1997, 1996 and 1995
were as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------ ------ ------
(In thousands)
<S> <C> <C> <C>
Service costs for benefits earned...................... $ 601 $ 596 $ 639
Interest costs......................................... 1,034 934 1,066
Amortization of transition obligation.................. 513 513 513
Amortization of net loss............................... (82)
------ ------ ------
Net postretirement benefit cost........................ $2,066 $2,043 $2,218
====== ====== ======
</TABLE>
The financial status of the postretirement benefit plan at December 31,
1997 and 1996, as determined by the actuary, is presented in the following
table.
<TABLE>
<CAPTION>
1997 1996
------- -------
(In thousands)
<S> <C> <C>
Accumulated benefit obligation
Retirees.................................................. $ 8,807 $ 8,169
Fully eligible participants............................... 3,411 2,581
Other active participants................................. 3,161 2,591
------- -------
Total accumulated benefit obligation........................ 15,379 13,341
Unamortized transition obligation........................... (7,700) (8,213)
Unrecognized gain........................................... 1,676 3,005
------- -------
Accrued unfunded postretirement benefit liability........... $ 9,355 $ 8,133
======= =======
</TABLE>
The assumed health care cost trend rate used to measure the expected cost
of benefits was 9.5% in 1997, declining to 5.5% by 2008 and remaining at 5.5%
thereafter. The initial health care cost trend rate was reduced from 10% in 1996
to 9.5% in 1997 and resulted in an unrecognized gain. If the health care cost
trend rate assumptions were increased by 1%, the accumulated benefit obligation
would be $15.7 million at December 31, 1997, and the aggregate of the service
and interest cost components of the net periodic cost of health care benefits
would be $1.7 million annually. The weighted average assumed discount rate used
to measure the accumulated benefit obligation in 1997 was changed from 7.5% to
7.25% and resulted in a minimal unrecognized gain. The weighted average assumed
discount rate used to measure the accumulated benefit obligation in 1996 was
changed from 7% to 7.5% and, together with a decrease in per capita claims cost,
resulted in an unrecognized gain.
27
<PAGE> 28
NOTE J -- INCOME TAX EXPENSE
Federal income tax expense is less than the amount computed by applying the
statutory federal rate to book income before tax as follows:
<TABLE>
<CAPTION>
For the years ended December 31
---------------------------------------------------
1997 1996 1995
--------------- --------------- ---------------
AMOUNT % Amount % Amount %
------- ----- ------- ----- ------- -----
(In thousands, except for %)
<S> <C> <C> <C> <C> <C> <C>
Book income before tax................ $80,248 100.0 $78,289 100.0 $73,932 100.0
Tax at statutory rate on book income
before tax.......................... $28,087 35.0 $27,401 35.0 $25,876 35.0
Increase (decrease):
Tax effect of AFUDC................. (276) (0.3) (185) (0.2) (1,029) (1.4)
Amortization of investment tax
credits.......................... (1,790) (2.2) (1,809) (2.3) (1,814) (2.5)
Tax effect of prior-year tax
benefits not deferred............ 978 1.2 921 1.1 900 1.2
Other, net.......................... (2,645) (3.3) (3,296) (4.2) (1,435) (1.9)
------- ----- ------- ----- ------- -----
Total federal income tax expense...... 24,354 30.4 23,032 29.4 22,498 30.4
------- ----- ------- ----- ------- -----
Current state income tax expense...... 3,375 4.2 3,122 4.0 2,731 3.7
------- ----- ------- ----- ------- -----
Total federal and state income tax
expense............................. $27,729 34.6 $26,154 33.4 $25,229 34.1
======= ===== ======= ===== ======= =====
</TABLE>
Information about current and deferred income tax expense is as follows:
<TABLE>
<CAPTION>
1997 1996 1995
------- ------- -------
(In thousands)
<S> <C> <C> <C>
Current federal income tax expense.................. $23,236 $21,023 $21,458
Deferred federal income tax expense................. 2,908 3,818 2,854
Amortization of accumulated deferred investment tax
credits........................................... (1,790) (1,809) (1,814)
------- ------- -------
Total federal income tax expense.................... 24,354 23,032 22,498
Current state income tax expense.................... 3,375 3,122 2,731
------- ------- -------
Total federal and state income tax expense.......... $27,729 $26,154 $25,229
======= ======= =======
Deferred federal income tax expense attributable to:
Depreciation...................................... $ 2,733 $ 4,834 $ 3,746
Storm damages..................................... (332) 70 (15)
Asset basis differences........................... (1,707) 425 (1,213)
Employee benefits................................. 321 (504) (558)
Fuel costs........................................ 790 (481) 890
Reacquired debt................................... 1,037 (238) (288)
Other............................................. 66 (288) 292
------- ------- -------
Total deferred federal income tax expense......... $ 2,908 $ 3,818 $ 2,854
======= ======= =======
</TABLE>
28
<PAGE> 29
The balance of accumulated deferred federal and state income tax assets and
liabilities at December 31, 1997 and 1996 was comprised of the tax effect of the
following:
<TABLE>
<CAPTION>
1997 1996
-------------------- --------------------
ASSET Liability Asset Liability
------- --------- ------- ---------
(In thousands)
<S> <C> <C> <C> <C>
Depreciation and property basis
differences......................... $ 6,978 $132,491 $ 6,851 $129,710
Allowance for funds used during
construction........................ 40,608 41,564
Investment tax credits................ 18,498 19,617
FASB 109 adjustments.................. 42,614 112,562 38,897 101,287
Postretirement benefits other than
pension............................. 3,266 3,007
Other................................. 5,200 10,462 5,859 9,123
------- -------- ------- --------
Accumulated deferred federal and state
income taxes........................ $76,556 $296,123 $74,231 $281,684
======= ======== ======= ========
</TABLE>
Regulatory assets recorded for deferred taxes at December 31, 1997 and 1996
were $115.3 million and $103.8 million, respectively. Regulatory liabilities
recorded for deferred taxes at December 31, 1997 and 1996 were $62.5 million and
$60.1 million, respectively. Regulatory assets and liabilities will be realized
over the accounting lives of the related properties to the extent past
ratemaking practices are continued by regulators.
NOTE K -- COMMITMENTS AND CONTINGENCIES
Construction expenditures for 1998 are estimated to be $54.9 million,
excluding AFUDC, and for the five-year period ending 2002 are expected to total
$253 million, excluding AFUDC. Scheduled maturities of debt and preferred stock
will total approximately $15.3 million for 1998 and approximately $121.6 million
for the five-year period ending 2002.
The Company has entered into various long-term contracts for the
procurement of coal and lignite to fuel certain of its generating stations.
These contracts contain provisions for price changes, minimum purchase levels
and other financial commitments. The Company purchases, as an additional fuel
source for generation, natural gas under short-term contracts on the spot
market.
The Company and another utility filed suit against a joint venture and its
partners who mine lignite for one of the Company's jointly-owned electric
generating units. The joint venture has filed counterclaims. The counterclaims
resulted in the filing of another suit by the Company and the other utility
against the joint venture's parent company. Management believes the
counterclaims, if successful, would not have a material adverse effect on the
Company's financial position or results of operations. Normal day-to-day
operations continue at the mining facility and the Company's electric generating
unit.
The coal for one of the Company's jointly-owned electric generating units
is transported under a long-term transportation contract with a railroad. The
railroad is overcoming operating problems, which began in 1997 and resulted in
reduced volumes delivered to the unit. Coal inventory at the unit is currently
below the Company's desired minimum level. Based on the railroad's anticipated
delivery schedule of future coal shipments, management anticipates restoration
of the coal inventory at the unit to desired levels by July 1998.
The Company has accrued for liabilities to third parties, environmental
claims, employee medical benefits, storm damages and deductibles under insurance
policies which it maintains on major properties, primarily generating stations
and transmission substations. Consistent with regulatory treatment, annual
charges to operating expense to provide a reserve for future storm
29
<PAGE> 30
damages are based upon the average amount of noncapital, uninsured storm damages
experienced by the Company during the previous five years.
The Company has committed to provide credit support up to $10 million for
working capital and electricity or natural gas commodity positions for CLECO
ENERGY, L.L.C. Commitments for asset development projects will be made as they
occur up to $5 million per year for the next five years.
The Company has recorded regulatory assets and liabilities, primarily for
the effects of income taxes, as a result of past rate actions of its regulators,
pursuant to Statement of Financial Accounting Standards No. 71, "Accounting for
the Effects of Certain Types of Regulation" (SFAS 71). The effects of potential
deregulation of the industry or possible future changes in the method of rate
regulation of the Company could require the Company to discontinue the
application of SFAS 71, pursuant to Statement of Financial Accounting Standards
No. 101, "Regulated Enterprises -- Accounting for the Discontinuation of
Application of FASB Statement No. 71" (SFAS 101). At December 31, 1997, the
Company recorded $52.8 million of regulatory assets, net of regulatory
liabilities, because of the regulatory requirement to flow through the tax
benefits of accelerated deductions to current customers and an implied
regulatory compact that future customers would pay when the Company paid the
additional taxes. These differences occur over the lives of relatively
long-lived assets, up to 30 years or more. Under the current regulatory and
competitive environment, the Company believes that these regulatory assets are
fully recoverable. However, if in the future, as a result of regulatory changes
or increased competition, its ability to recover these regulatory assets would
not be probable, then to the extent that such regulatory assets were determined
not to be recoverable, it would be required to write off or write down such
assets.
Statement of Financial Accounting Standards No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed Of"
(SFAS 121), establishes accounting standards for determining if long-lived
assets are impaired, and when and how losses, if any, should be recognized. The
Company believes that the net cash flows that will result from the operation of
its assets are sufficient to cover the carrying value of the assets.
The Emerging Issues Task Force (EITF) assists the Financial Accounting
Standards Board (FASB) in identifying emerging issues affecting financial
reporting. In 1997, the EITF reached a consensus in Issue No. 97-4:
"Deregulation of the Pricing of Electricity -- Issues Related to the Application
of SFAS No. 71 and No. 101." EITF 97-4 specified that SFAS No. 71 should be
discontinued at a date no later than when the details of a transition plan
toward the deregulation of electric rates for all or a portion of the entity
subject to such plan are known. However, other factors could cause the
discontinuation of SFAS No. 71 before that date. Additionally, EITF 97-4
establishes that regulatory assets to be recovered through cash flows derived
from another portion of the entity which continues to apply SFAS No. 71 should
not be written off, but rather, should continue to be considered regulatory
assets of the separable portion which will continue to apply SFAS No. 71.
30
<PAGE> 31
NOTE L -- MISCELLANEOUS FINANCIAL INFORMATION (UNAUDITED)
Quarterly information for 1997 and 1996 is shown in the following table.
<TABLE>
<CAPTION>
1997
----------------------------------------------------
1ST 2ND 3RD 4TH
QUARTER QUARTER QUARTER QUARTER
------- -------- -------- --------
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Operating revenues......................... $97,668 $105,324 $138,099 $115,154
Operating income........................... $14,798 $ 18,459 $ 28,624 $ 16,929
Net income applicable to common stock...... $ 7,002 $ 10,744 $ 22,360 $ 10,296
Basic earnings per average common
share(2)................................. $ 0.31 $ 0.48 $ 1.00 $ 0.45
Diluted earnings per average common
share(2)................................. $ 0.31 $ 0.47 $ 0.95 $ 0.45
Dividends paid per common share............ $ 0.385 $ 0.395 $ 0.395 $ 0.395
Market price per share
High..................................... $ 28 $ 28 1/8 $ 28 7/16 $ 33 1/8
Low...................................... $ 26 $ 24 3/4 $ 25 13/16 $ 25 9/16
</TABLE>
<TABLE>
<CAPTION>
1996
----------------------------------------------------
1st 2nd 3rd 4th
Quarter Quarter Quarter Quarter
------- -------- -------- -------
(In thousands, except per share amounts)
<S> <C> <C> <C> <C>
Operating revenues(1)....................... $99,042 $113,303 $130,477 $94,299
Operating income............................ $16,747 $ 21,566 $ 27,190 $12,918
Net income applicable to common stock....... $ 9,516 $ 14,026 $ 20,379 $ 6,140
Basic earnings per average common share(2).. $ 0.42 $ 0.63 $ 0.91 $ 0.27
Diluted earnings per average common
share(2).................................. $ 0.41 $ 0.61 $ 0.87 $ 0.27
Dividends paid per common share............. $ 0.375 $ 0.385 $ 0.385 $ 0.385
Market price per share
High...................................... $ 27 3/4 $ 27 3/8 $ 27 1/4 $ 29 1/4
Low....................................... $ 25 3/8 $ 25 1/8 $ 25 3/8 $ 26 1/8
</TABLE>
- ---------------
(1) Certain prior-period amounts have been reclassified to conform with the
presentation shown in the current year's financial statements. These
classifications had no effect on net income applicable to common stock or
common shareholders' equity.
(2) Earnings per average common share have been restated to reflect the
Company's adoption of SFAS No. 128, "Earnings per Share."
The Company's common stock is listed for trading on the New York and
Pacific stock exchanges under the ticker symbol "CNL." The Company's preferred
stock is not listed on any stock exchange. On December 31, 1997, the Company had
11,088 common and 174 preferred shareholders, as determined from the records of
the transfer agent.
On January 23, 1998, the Company's Board of Directors declared a quarterly
dividend of 39 1/2 cents per share, payable February 15, 1998, to common
shareholders of record on February 2, 1998. Preferred dividends were also
declared, payable March 1, 1998, to preferred shareholders of record on February
15, 1998.
31
<PAGE> 32
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of
Central Louisiana Electric Company, Inc.
We have audited the accompanying consolidated balance sheets of Central
Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and the
related consolidated statements of income, cash flows and changes in common
shareholders' equity for each of the three years in the period ended December
31, 1997. These consolidated financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based upon our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Central Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and
the consolidated results of its operations and its cash flows for each of the
three years in the period ended December 31, 1997, in conformity with generally
accepted accounting principles.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
January 27, 1998
32
<PAGE> 1
EXHIBIT 23
[COOPERS & LYBRAND L.L.P. LOGO] CERTIFIED PUBLIC ACCOUNTANTS
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements of
Central Louisiana Electric Company, Inc. on Form S-8 (Registration Nos. 2-79671,
33-10169, 33-38362 and 33-44663) and Form S-3 (Nos. 33-24895, 33-62950 and
333-02895) of our reports dated January 27,1998, on our audits of the
consolidated financial statements and financial statement schedule of Central
Louisiana Electric Company, Inc. as of December 31, 1997 and 1996, and for the
years ended December 31, 1997, 1996 and 1995, which reports are included or
incorporated by reference in this Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
March 27, 1998
<PAGE> 1
EXHIBIT 24
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ Sherian G. Cadoria
----------------------------------------
Sherian G. Cadoria
<PAGE> 2
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ Richard B.Crowell
----------------------------------------
Richard B. Crowell
<PAGE> 3
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ J. Patrick Garrett
----------------------------------------
J. Patrick Garrett
<PAGE> 4
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ F. Ben James, Jr.
----------------------------------------
F. Ben James, Jr.
<PAGE> 5
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ Hugh J. Kelly
----------------------------------------
Hugh J. Kelly
<PAGE> 6
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ A. DeLoach Martin, Jr.
----------------------------------------
A. DeLoach Martin, Jr.
<PAGE> 7
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 28th day of January, 1998.
/s/ Robert T. Ratcliff
----------------------------------------
Robert T. Ratcliff
<PAGE> 8
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ Edward M. Simmons
----------------------------------------
Edward M. Simmons
<PAGE> 9
CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
POWER OF ATTORNEY
WHEREAS, Central Louisiana Electric Company, Inc., a Louisiana
corporation (the "Company"), intends to file with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Act"), an Annual Report on Form 10-K (the "Form 10-K") for the
Company's fiscal year ended December 31, 1997, with any and all amendments
thereto as may be necessary or appropriate, together with any and all exhibits
and other documents having relation to the Form 10-K;
NOW, THEREFORE, the undersigned, in the capacity of a director
or officer or both a director and officer of the Company, as the case may be,
does hereby appoint Gregory L. Nesbitt and Thomas J. Howlin, and each of them
severally, his true and lawful attorney(s)-in-fact and agent(s) with power to
act without the other, with full power of substitution and resubstitution, to
execute in his name, place and stead, in any and all capacities, the Form 10-K
and any and all amendments thereto and any and all instruments necessary or
incidental in connection therewith, to file the same with the Commission and to
appear before the Commission in connection with any matter relating thereto.
Each of said attorneys-in-fact and agents shall have full power and authority to
do and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying, approving and confirming
the acts that said attorneys-in-fact and agents and each of them, or their or
his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney as of the 23rd day of January, 1998.
/s/ William H. Walker, Jr.
----------------------------------------
William H. Walker, Jr.
<TABLE> <S> <C>
<ARTICLE> OPUR1
<LEGEND>
This schedule contains summary financial information extracted form the
Company's financial statements and is qualified in its intirety by reference to
such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,025,562
<OTHER-PROPERTY-AND-INVEST> 3,479
<TOTAL-CURRENT-ASSETS> 102,413
<TOTAL-DEFERRED-CHARGES> 221,259
<OTHER-ASSETS> 8,331
<TOTAL-ASSETS> 1,361,044
<COMMON> 45,525
<CAPITAL-SURPLUS-PAID-IN> 107,677
<RETAINED-EARNINGS> 255,549
<TOTAL-COMMON-STOCKHOLDERS-EQ> 408,751
6,120
11,336
<LONG-TERM-DEBT-NET> 120,897
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 245,000
<COMMERCIAL-PAPER-OBLIGATIONS> 34,219
<LONG-TERM-DEBT-CURRENT-PORT> 15,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 519,721
<TOT-CAPITALIZATION-AND-LIAB> 1,361,044
<GROSS-OPERATING-REVENUE> 456,245
<INCOME-TAX-EXPENSE> 27,729
<OTHER-OPERATING-EXPENSES> 349,706
<TOTAL-OPERATING-EXPENSES> 377,435
<OPERATING-INCOME-LOSS> 78,810
<OTHER-INCOME-NET> 2,295
<INCOME-BEFORE-INTEREST-EXPEN> 81,105
<TOTAL-INTEREST-EXPENSE> 28,586
<NET-INCOME> 52,519
2,117
<EARNINGS-AVAILABLE-FOR-COMM> 50,402
<COMMON-STOCK-DIVIDENDS> 35,266
<TOTAL-INTEREST-ON-BONDS> 9,100
<CASH-FLOW-OPERATIONS> 117,776
<EPS-PRIMARY> 2.24
<EPS-DILUTED> 2.18
</TABLE>
