UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
CERTIFICATE PURSUANT
Gulf States Utilities Company TO RULE 24
File No. 70-8375
Public Utility Holding Company
Act of 1935
This is to certify, pursuant to Rule 24 under the
Public Utility Holding Company Act of 1935, as amended, that
certain of the transactions proposed by Gulf States
Utilities Company ("GSU") in the Application-Declaration on
Form U-1 in the above file, as amended, have been carried
out in accordance with the terms and conditions of, and for
the purposes represented by, the Application-Declaration and
pursuant to the order of the Securities and Exchange
Commission ("Commission") with respect thereto dated
November 18, 1994 (Release No. 35-26161).
On December 20, 1994, GSU entered into a Refunding
Agreement, dated as of December 1, 1994, with the Parish of
West Feliciana, State of Louisiana ("Parish"), pursuant to
which the Parish issued and sold $102,000,000 principal
amount of its 8% Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project) Series 1994.
Attached hereto and incorporated herein by
reference are the following documents:
B-1(a) Conformed copy of Letter
of Representation dated
December 13, 1994, between
GSU and Morgan Stanley &
Co. Incorporated, as
representative of the
underwriters.
B-2(a) Conformed copy of Bond
Purchase Agreement dated
December 13, 1994, between
the Parish and Morgan
Stanley & Co.
Incorporated, as
representative of the
underwriters.
B-8(a) Conformed copy of Trust
Indenture between the
Parish and the First
National Bank of Commerce,
as Trustee.
B-12(a) Conformed copy of
Refunding Agreement.
F-1(a) Post-effective opinion of
Lawrence M. Hamric, Esq.,
General Attorney,
Corporate and Securities
of Entergy Services, Inc.
F-2(a) Post-effective opinion of
Reid & Priest.
IN WITNESS WHEREOF, Gulf States Utilities Company
has caused this certificate to be executed this 30th day of
December, 1994.
Gulf States Utilities Company
By: /s/ Lee W. Randall
Lee W. Randall
Vice President, Chief Accounting
Officer and Assistant Secretary
EXHIBIT B-1(a)
LETTER OF REPRESENTATION
December 13, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December 13, 1994, with the Parish of
West Feliciana, State of Louisiana
Parish of West Feliciana, State of
Louisiana
The Police Jury House
9795 Royal Street
St. Francisville, Louisiana 70775
Re: Parish of West Feliciana, State of
Louisiana Pollution Control Revenue Refunding
Bonds (Gulf States Utilities Company Project)
Series 1994
Ladies and Gentlemen:
This letter is being delivered by the undersigned Gulf
States Utilities Company (the "Company") in order to induce
Morgan Stanley & Co. Incorporated and the Underwriters listed in
Schedule I to the Bond Purchase Agreement hereinafter referred to
(collectively the "Underwriters"), and the Parish of West
Feliciana, State of Louisiana (the "Issuer") to enter into a Bond
Purchase Agreement, dated December 13, 1994 (the "Bond Purchase
Agreement"), copies of the proposed form of which have been
delivered to us, providing for the purchase and public
distribution of $102,000,000 principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 bearing interest at the rate of 8%
per annum (the "Bonds"). The Bonds are to be issued under a
Trust Indenture, dated as of December 1, 1994, between the Issuer
and First National Bank of Commerce, New Orleans, Louisiana, as
Trustee (the "Indenture"), for the purpose of refunding, prior to
maturity, the Issuer's outstanding $102,000,000 aggregate
principal amount of Pollution Control Revenue Bonds (Gulf States
Utilities Company Project) Series 1984A, Series 1984B, Series
1984C and Series 1984D (collectively, the "Prior Bonds") (which
were issued to provide funds for the cost of acquiring, improving
and equipping a project that consists of the undivided interest
of the Company in certain water pollution control and sewage
disposal facilities (the "Facilities") at River Bend Unit 1, a
940 megawatt boiling water nuclear electric generating plant,
located within the Parish of West Feliciana, State of Louisiana),
pursuant to the Refunding Agreement, dated as of December 1,
1994, between the Issuer and the Company ("Refunding Agreement"),
whereby the Company has agreed to make payments to the Trustee in
an amount sufficient to pay the principal of, premium, if any,
and interest on the Bonds.
1. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with the Issuer and
the several Underwriters that:
2.
(a) (i) The descriptions and information contained in
the official statement, dated the date hereof, including
Appendix A thereto and the documents incorporated by
reference therein, relating to the Bonds and the Company
(the "Official Statement"), including without limitation
information relating to the Company's participation in the
transactions contemplated by the Indenture and the Refunding
Agreement, do not at the date hereof, (ii) as the Official
Statement may then be amended or supplemented, such
descriptions and information at the time of the Closing (as
defined in the Bond Purchase Agreement) will not, and (iii)
the descriptions and information contained in the
preliminary official statement, dated December 6, 1994,
including Appendix A thereto and the documents incorporated
by reference therein, relating to the Bonds and the Company
(the "Preliminary Official Statement"), as of its date did
not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are or were made, not misleading; provided,
however, that none of the representations and warranties in
this paragraph (a) shall apply to those parts of the
Official Statement and Preliminary Official Statement
captioned "The Issuer", "The 1994 Bonds-Book-Entry System"
and "Tax Matters" or Appendix B, respectively, or to
statements in or omissions from the Official Statement or
the Preliminary Official Statement made in reliance upon and
in conformity with written information furnished to the
Company by the Underwriters through Morgan Stanley & Co.
Incorporated expressly for use therein. The Company deems
the Preliminary Official Statement final as of its date for
purposes of Rule 15c2-12(b)(1) of the Securities Act of
1934, as amended (the "Exchange Act"), except for the
information not required to be included in a preliminary
official statement as set forth in such rule. The Company
hereby consents to the use of the Official Statement in
connection with the sale and distribution of the Bonds by
the Underwriters and confirms that it has similarly
consented to the use of the Preliminary Official Statement
for such purpose prior to the availability of the Official
Statement. The financial statements included or
incorporated by reference in the Official Statement and in
the Preliminary Official Statement present fairly the
financial condition of the Company at the times and the
results of its operations for the periods indicated and such
financial statements have been prepared in conformity with
generally accepted accounting principles applied, except as
may be noted therein, on a consistent basis throughout the
periods covered by all of such statements. Since
December 31, 1993, there has been no material adverse change
in the financial condition, results of operations or general
affairs of the Company other than as set forth in or
contemplated by the Official Statement, as amended or
supplemented.
(b) The Company is a corporation duly organized and
validly existing in good standing under the laws of the
State of Texas; has the corporate power and authority to own
or lease and operate the properties now owned or leased by
it and to carry on its business as now being carried on by
it as described in Appendix A to the Official Statement; and
neither the character of properties owned or leased by it
nor the nature of the business transacted by it make the
licensing or qualification of the Company as a foreign
corporation necessary in any other state or jurisdiction.
(c) The execution and delivery of the Refunding
Agreement and this Letter of Representation and the
consummation of the transactions contemplated therein and
the fulfillment of the terms thereof will not result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is now,
or at the time of the Closing will be, a party, or by which
it is bound, or the Restated Articles of Incorporation, as
amended, or By-Laws, as amended, of the Company, or any
order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over the Company or its property.
(d) The Company has full corporate power and authority
to authorize, execute and deliver the Refunding Agreement on
the terms and conditions set forth therein and this Letter
of Representation on the terms and conditions set forth
herein and in the Bond Purchase Agreement, and has taken all
corporate action necessary therefor; all necessary
authorizations, approvals, consents or other orders of any
governmental authority or agency have been, or will be prior
to the time of the Closing, obtained for such authorization,
execution and delivery by the Company; and, when executed
and delivered in accordance with the Bond Purchase
Agreement, the Refunding Agreement and this Letter of
Representation (assuming they are valid and legally binding
obligations of the other parties thereto) will constitute
valid and legally binding obligations of the Company
enforceable against the Company in accordance with their
respective terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, or other
laws affecting creditors' rights generally and by general
equitable principles, and except as rights to indemnity
under this Letter of Representation may be limited by
principles of public policy.
(e) Subsequent to the respective dates as of which
information is given in the Official Statement or any
amendments or supplements thereto and prior to the time of
the Closing, and except as set forth in or contemplated by
the Official Statement or any amendments or supplements
thereto, (i) the Company has not incurred nor will it have
incurred any liabilities or obligations, direct or
contingent, or entered into any transaction, not in the
ordinary course of business, and (ii) there has not been and
will not have been any material adverse change in the
business, property or financial condition of the Company.
(f) Except as set forth in or contemplated by the
Official Statement, as amended or supplemented, there is not
pending any action, suit or other proceeding to which the
Company is a party or of which any property of the Company
is the subject, by or before any court or other governmental
body, that would, if adversely determined, result in any
material adverse change in the business, property or
financial condition of the Company, or have a material
adverse effect on the transactions contemplated by the Bond
Purchase Agreement and the Official Statement or on the
validity or enforceability of the Bonds, the Indenture, the
Refunding Agreement or this Letter of Representation; and no
such proceeding is known by the undersigned representative
of the Company, after inquiry, to be threatened or
contemplated.
(g) The information supplied by the Company to Foley &
Judell with respect to the Facilities is true, correct and
complete in all material respects for the purposes for which
it was supplied.
(h) The representations and warranties of the Company
in Section 2.2 of the Refunding Agreement are true and
correct in all material respects.
2. Covenants by the Company. In further consideration of
the agreements by the Issuer and the Underwriters contained
herein and in the Bond Purchase Agreement, the Company covenants
as follows:
(a) At its expense, it will cause to be prepared and,
upon the approval of and authorization by the Issuer,
furnished to the Underwriters as many copies of the Official
Statement (as amended or supplemented from time to time, but
excluding any documents incorporated by reference therein)
as the Underwriters may reasonably request for the public
offering of the Bonds. At its expense, it will cause to be
prepared and furnished to each of the Underwriters one copy
of each of the documents incorporated by reference in the
Official Statement, as it may be amended or supplemented,
and as many additional copies of such documents incorporated
by reference as shall be requested of the Underwriters by
prospective purchasers of the Bonds.
(b) As soon as the Company is advised thereof, it will
advise the Representative of the institution by the
Securities and Exchange Commission or any other governmental
or regulatory authority of any proceeding affecting the use
of the Official Statement or the marketing of the Bonds or
of the initiation, or threat of initiation, of any
proceedings for such purpose.
(c) It will not amend or supplement the Official
Statement without giving prior notice to the Representative
and to its counsel, Winthrop, Stimson, Putnam & Roberts, and
will not effect any amendment or supplement to which said
counsel shall reasonably object in writing.
(d) During the period beginning the date hereof and
ending 25 days after the end of the underwriting period as
defined in Rule 15c2-12(e)(2) of the Exchange Act, if any
event relating to or affecting the Company or of which the
Company shall be advised in writing by Morgan Stanley & Co.
Incorporated shall occur which, in the Company's opinion,
should be set forth in a supplement to or in an amendment of
the Official Statement in order to make the Official
Statement not misleading in the light of the circumstances
existing when it is delivered to a purchaser, the Company
will either (i) prepare and furnish to the Underwriters at
the Company's expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Official Statement or (ii) make an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which
will, in either case, supplement or amend the Official
Statement so that as supplemented or amended it will not
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances when
the Official Statement is delivered to a purchaser, not
misleading; provided, that should such event relate solely
to activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and
furnishing any such amendment or supplement; and provided
further, that the expenses of complying with this subsection
shall be borne by the Company until the expiration of nine
months from the date hereof, and such expenses shall be
borne by the Underwriters thereafter.
(e) Upon the request of Morgan Stanley & Co.
Incorporated, to cooperate in arranging for qualification of
the Bonds by the Underwriters or on their behalf for offer
and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representative may reasonably
designate, such qualification to be carried out under the
supervision of counsel for the Underwriters, provided,
however, that in satisfying the requirements of this
subsection (e), the Company shall not be required to (i)
qualify as a foreign corporation or dealer in securities,
(ii) consent generally to service of process in any
jurisdiction, or (iii) comply with any other requirements
reasonably deemed by it to be unduly burdensome.
(f) The Company will not take or omit to take any
action that will in any way cause or result in the use or
application of the proceeds from the sale of the Bonds in a
manner other than as provided in the Indenture and the
Refunding Agreement.
(g) Subject to the terms and conditions of the Bond
Purchase Agreement, the Company agrees to pay (i) the
expenses contemplated to be paid by it pursuant to the
proviso to the first paragraph of Section 6 thereof (unless
the sale of the Bonds shall have been prevented by the
Underwriters' breach, in which case the Underwriters shall
pay all such expenses), and (ii) if the Bonds are not issued
or if the proceeds of the Bonds are unavailable or
insufficient for the purpose, all of the expenses described
in the second paragraph of said Section 6 (except that if
the Bonds are not issued due to a termination of the Bond
Purchase Agreement pursuant to the penultimate sentence of
Section 7 thereof, the Company shall not be required to
reimburse the Underwriters for expenses (including fees and
disbursements of counsel) incurred in connection with the
qualification of the Bonds under "Blue Sky" laws and
eligibility for investment).
(h) The Company, subject to the terms and conditions
of the Refunding Agreement and the Bond Purchase Agreement,
will consummate the transactions on its part contemplated by
the Refunding Agreement, the Bond Purchase Agreement and the
Official Statement.
(i) The Company will furnish or cause to be furnished
to the Underwriters copies of the Indenture, the Refunding
Agreement and all amendments and supplements to such
documents, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(j) As soon as practicable after the Closing (as
defined in the Bond Purchase Agreement), the Company will
make all recordings, registrations and filings necessary, if
any, to perfect and preserve the rights created under the
Refunding Agreement.
3. Indemnification
(a) The Company hereby agrees to indemnify and hold
harmless the Issuer and each of the Underwriters, and any
member, officer, official or employee of any of the Issuer
or the Underwriters and each person, if any, who controls
any of the Underwriters within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), or the
Exchange Act (the "Related Persons") against any and all
losses, claims, damages or liabilities, joint or several,
whatsoever caused by any untrue statement or misleading
statement or alleged untrue statement or alleged misleading
statement of a material fact contained in the Official
Statement, the Preliminary Official Statement or any
amendment or supplement thereto or caused by any omission or
alleged omission from the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto of any material fact necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not misleading;
and to reimburse such party or parties for any legal or
other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage or
liability (or any action in respect thereof), such
reimbursement to occur at reasonable intervals but not more
frequently than monthly; provided, that the Company will not
be liable in any such case to the Issuer or any of its
members, officers, officials or employees to the extent such
losses, claims, damages, liabilities or expenses are caused
by any statements made in the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto, in reliance upon information provided by
the Issuer in the section therein headed "The Issuer"; and
provided, further, that the Company will not be liable in
any such case to the Underwriters and the Related Persons to
the extent such losses, claims, damages, liabilities or
expenses are caused by any such untrue or misleading
statement or omission or alleged untrue or misleading
statement or omission made in reliance upon and in
conformity with written information furnished to the Issuer
or the Company by or through Morgan Stanley & Co.
Incorporated expressly for use therein. This indemnity
agreement will be in addition to any liability that the
Company may otherwise have. No indemnity by the Company to
the Underwriters and the Related Persons hereunder shall
apply in respect of any Preliminary Official Statement or
Official Statement furnished by an Underwriter to a person
to whom any of the Bonds are sold, insofar as such indemnity
relates to any untrue or misleading statement or omission
made in such Preliminary Official Statement or Official
Statement but eliminated or remedied prior to the
consummation of such sale in the Official Statement or any
amendment or supplement thereto, respectively, unless a copy
of the Official Statement (excluding documents incorporated
by reference therein) (in the case of such a statement or
omission made in the Preliminary Official Statement) or such
amendment or supplement (excluding documents incorporated by
reference in the Official Statement) (in the case of such a
statement or omission made in the Official Statement) is
furnished by such Underwriter to such person prior to the
consummation of such sale.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, any director, officer or employee of
the Company, and each person who controls the Company within
the meaning of the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities
whatsoever caused by any untrue statement or misleading
statement or alleged untrue statement or alleged misleading
statement of a material fact contained in the Official
Statement, the Preliminary Official Statement or any
amendment or supplement thereto or caused by any omission or
alleged omission from the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto of any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading in each case to the extent, but only to
the extent, that such untrue or misleading statement or
omission or alleged untrue or misleading statement or
omission was made in reliance upon and in conformity with
written information furnished to the Issuer or the Company
by or through Morgan Stanley & Co. Incorporated expressly
for use therein; and to reimburse such party or parties for
any legal or other expenses reasonably incurred in
connection with investigating or defending any such loss,
claim, damage or liability (or any action in respect
thereof), such reimbursement to occur at reasonable
intervals but not more frequently than monthly. This
indemnity agreement will be in addition to any liability
which each Underwriter may otherwise have.
(c) Each indemnified party will, promptly after the
receipt of notice of the commencement of any action against
such indemnified party in respect of which indemnity
hereunder may be sought, notify the indemnifying parties in
writing of the commencement thereof, but the failure of such
indemnified party so to notify the indemnifying parties of
any such action shall not relieve the indemnifying party or
parties from any liability which it or they may have to such
indemnified party otherwise than under this Letter of
Representation. In case any such action shall be brought
against any indemnified party and such indemnified party
shall notify the indemnifying party or parties of the
commencement thereof, the indemnifying party or parties may,
except as otherwise provided in the next succeeding
sentence, participate therein or assume (in conjunction with
any other indemnifying party) the defense thereof, with
counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party or parties), and
after notice from the indemnifying party or parties to such
indemnified party of an election so to assume the defense
thereof, the indemnifying party or parties will not be
liable to such indemnified party under this indemnity
agreement for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right
to employ separate counsel in any such action in which the
defense has been assumed by the indemnifying party and
participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has
been specifically authorized by the indemnifying party or
(ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party
and the indemnifying party and such indemnified party shall
have been advised by such counsel that a conflict of
interest between the indemnifying party and such indemnified
party may arise (and the indemnifying party's counsel shall
have concurred with such advice) and for this reason it is
not desirable for the same counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for
such indemnified party and all persons related thereto (plus
any local counsel retained by such indemnified party in its
reasonable judgment), which firm (or firms), in the case of
the Underwriters and Related Persons being the indemnified
party, shall be designated in writing by Morgan Stanley &
Co. Incorporated and in the case of the Issuer and persons
related thereto being the indemnified party shall be
designated in writing by the Issuer). The indemnifying
party or parties shall not be liable for any settlement of
any such action effected without its or their consent, but
if settled with the consent of the indemnifying party or
parties or if there be a final judgment for the plaintiff in
any such action, the indemnifying party or parties agree to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement
or judgment.
(d) As between the Company and the Underwriters, if
the indemnification provided for in this Section 3 is
unavailable to an indemnified party under subsections (a),
(b) or (c) hereof in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying
party in lieu of indemnifying such indemnified party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Bonds or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
principal amount of Bonds purchased hereunder bears to the
total compensation received by the Underwriters, as set
forth in the Bond Purchase Agreement. The relative fault of
the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 3(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of
the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable to an
indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3(d), in no
case shall any Underwriter be required to contribute any
amount in excess of the amount by which the total price at
which the Bonds were purchased by it exceeds the amount of
any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
in this Section 3(d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
4. Survival of Representations and Obligations. (a) The
representations and warranties and other agreements of the
Company contained in this Letter of Representation shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or the persons controlling the
Company and (ii) acceptance of and payment for the Bonds and (b)
the indemnity and contribution agreements contained in Section 3
shall remain operative and in full force and effect regardless of
any termination of this Letter of Representation.
5. Successors. This Letter of Representation has been
and is made solely for the benefit of the Issuer, the
Underwriters and the Company and, to the extent expressly
provided herein, for the benefit of the other persons referred to
in Section 3 hereof, and their respective successors and assigns,
and no other persons shall acquire or have any right under or by
virtue of this Letter of Representation. The term "successor"
shall not include any purchaser, as such purchaser, of any Bonds
from the Underwriters.
6. Applicable Law. Except for matters specifically
relating to the rights, duties and obligations of the Issuer
hereunder, which shall be governed by Louisiana law, this Letter
of Representation shall be a New York contract and its validity
and interpretation shall be governed by the law of the State of
New York.
7. Notices. Any notice or other communication to be given
to the Company under this Letter of Representation may be given
by mailing or delivering the same in writing to: Gulf States
Utilities Company, 639 Loyola Avenue, New Orleans, Louisiana,
70113 Attention: Treasurer. Any notice or other communications
to be given to the Underwriters under this Letter of
Representation may be given by mailing or delivering the same in
writing to Morgan Stanley & Co. Incorporated, 1221 Avenue of the
Americas, 5th Floor, New York, New York 10020, Attention: Public
Finance Department, and any notice or other communication to be
given to the Issuer under this Letter of Representation may be
given by mailing or delivering the same in writing to Parish of
West Feliciana, State of Louisiana, The Police Jury House, 9795
Royal Street, St. Francisville, Louisiana, 70775. The Company,
the Issuer or the Underwriters may, by notice given hereunder,
designate any further or different address to which subsequent
notices or other communications shall be sent.
8. Counterparts; Severability. This Letter of
Representation may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall
constitute one and the same agreement. Should any part of this
Letter of Representation for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Letter of Representation had been executed with
the invalid portion thereof eliminated.
Kindly indicate your agreement as Issuer and as
Representative of the several Underwriters to the foregoing by
signing and returning to us the enclosed duplicate of this Letter
of Representation, whereupon it will become a binding agreement.
Very truly yours,
GULF STATES UTILITIES COMPANY
By /s/ Lee W. Randall
Name: Lee W. Randall
Title: Vice President-Chief Accounting Officer
Accepted as of the date
first above written:
Morgan Stanley & Co. Incorporated
On behalf of ourselves and
as Representative of the other
Underwriters named in Schedule
I to the Bond Purchase Agreement,
dated December 13, 1994, with the
Parish of West Feliciana, State of Louisiana
MORGAN STANLEY & CO. INCORPORATED
By /s/ Francis J. Sweeney
Name: Francis J. Sweeney
Title: Vice President
PARISH OF WEST FELICIANA, STATE OF
LOUISIANA
By /s/ John Cobb
President, West Feliciana Parish Police Jury
Exhibit B-2(a)
PARISH OF WEST FELICIANA, STATE OF LOUISIANA
$102,000,000
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project) Series 1994
BOND PURCHASE AGREEMENT
<PAGE>
December 13, 1994
PARISH OF WEST FELICIANA, STATE OF LOUISIANA
THE POLICE JURY HOUSE
9795 ROYAL STREET
ST. FRANCISVILLE, LOUISIANA 70775
Ladies and Gentlemen:
Morgan Stanley & Co. Incorporated, as representative
(the "Representative") of the several underwriters listed on
Schedule I hereto (collectively with ourselves, the
"Underwriters"), hereby offers to enter into this Bond Purchase
Agreement with you (the "Issuer") for the purchase by the
Underwriters, severally and not jointly, and the sale by the
Issuer of $102,000,000 aggregate principal amount of Pollution
Control Revenue Refunding Bonds (Gulf States Utilities Company
Project) Series 1994 bearing interest at the rate of 8% per annum
(the "Bonds"). This offer is made subject to your acceptance
hereof prior to 5:00 P.M., New York City Time, on December 13,
1994, and upon such acceptance this Bond Purchase Agreement shall
be in full force and effect in accordance with the terms hereof
and shall be binding upon both the Issuer and the Underwriters.
1. Upon the terms and conditions herein set forth, each of
the several Underwriters named in Schedule I hereto agrees,
severally and not jointly, to purchase from the Issuer the
principal amount of the Bonds set forth opposite such
Underwriter's name in Schedule I hereto and the Issuer hereby
agrees to sell to the Underwriters the Bonds at a purchase price
of 100% of the principal amount thereof, plus accrued interest on
the Bonds at the rate set forth on the cover of the Official
Statement hereinafter mentioned from December 1, 1994 to the date
of the Closing referred to in Section 3 hereof.
The Bonds shall be as described in, and shall be issued
and secured under, a Trust Indenture dated as of December 1, 1994
(the "Indenture") between the Issuer and First National Bank of
Commerce, New Orleans, Louisiana, as Trustee (the "Trustee"). In
consideration of the issuance of the Bonds by the Issuer, Gulf
States Utilities Company (the "Company") shall agree to make
payments to the Trustee in an amount sufficient to pay the
principal of, premium, if any, and interest on the Bonds pursuant
to a Refunding Agreement dated as of December 1, 1994 (the
"Refunding Agreement") between the Issuer and the Company.
2. As soon as practicable following your acceptance hereof
(but in no event later than seven business days after the date
hereof), you will deliver to us, pursuant to Rule 15c2-12(b)(3)
promulgated by the Securities and Exchange Commission (the "SEC")
under the Securities Exchange Act of 1934 (the "Exchange Act"),
as Representative, an executed copy of the official statement,
dated the date hereof, relating to the Bonds (such official
statement, including the appendices thereto and the documents
incorporated therein by reference, is herein called the "Official
Statement"), to be used by the Underwriters in connection with
the sale and distribution of the Bonds. For the purposes of this
Bond Purchase Agreement, all documents filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date of the Official Statement and incorporated by
reference in the Official Statement shall be deemed to be a
supplement to the Official Statement.
3. At 10:00 A.M., New York City Time, on December 20, 1994,
or at such other time or on such earlier or later date as you and
we, as Representative, mutually agree upon (the "Closing"), you
will deliver or cause to be delivered to the Underwriters the
Bonds in the form hereinafter provided, duly executed and
authenticated, together with the other documents hereinafter
mentioned; and the Underwriters will accept such delivery and pay
the purchase price thereof by certified or official bank check or
checks, or by wire transfer, payable to the order of the Trustee
for the account of the Issuer in immediately available funds,
subject to the terms and conditions set forth herein.
Concurrently with payment of the purchase price and delivery of
the Bonds, the Company will pay to the Representative, for the
respective accounts of the Underwriters, by check payable in, or
wire transfer of, immediately available funds, an amount equal to
.874% of the aggregate principal amount of the Bonds as
compensation for their purchasing and making a public offering of
the Bonds. Payment for the Bonds and of the Underwriters'
compensation shall be made at the office of Foley & Judell, New
Orleans, Louisiana (or at such other place as you and we, as
Representative, mutually agree upon), upon delivery to the
Underwriters of the Bonds in book-entry form through the
facilities of The Depository Trust Company in New York, New York
("DTC"). The certificates for the Bonds shall be in the form of
one or more typewritten bonds in fully registered form, in the
aggregate principal amount of the Bonds, and registered in the
name of Cede & Co., as nominee of DTC. A certificate or
certificates representing the Bonds will be delivered to DTC on
the last business day preceding the Closing.
4. You represent, warrant and agree with us as follows:
(a) The Issuer is a political subdivision of the State
of Louisiana. The Issuer is authorized by the provisions of
Chapter 14-A of Title 39 of the Louisiana Revised Statutes of
1950, as amended (La.R.S. 39:1444-1456)(the "Act"), and
resolutions duly adopted on behalf of the Issuer by its Police
Jury, which is its governing body, to issue the Bonds for the
purpose of refunding, prior to maturity, the Issuer's outstanding
$102,000,000 aggregate principal amount of Pollution Control
Revenue Bonds (Gulf States Utilities Company Project) Series
1984A, Series 1984B, Series 1984C and Series 1984D (collectively,
the "Prior Bonds") and to pledge and assign to the Trustee under
the Indenture the payments and other security to be received from
the Company pursuant to the Refunding Agreement.
(b) The Issuer has complied with all provisions of the
Constitution of the State of Louisiana and of the Act and has
full power and authority to consummate all transactions
contemplated by this Bond Purchase Agreement, the Bonds, the
Indenture, the Refunding Agreement and any and all other
agreements relating thereto.
(c) The Issuer has ratified and confirmed the use
prior to the date hereof of a preliminary official statement,
dated December 6, 1994, "deemed final" as of such date, based
upon a representation of the Company, by the Issuer within the
meaning of Rule 15c2-12(b)(1) promulgated by the SEC under the
Exchange Act, in connection with the offering of the Bonds (such
preliminary official statement, including the appendices thereto
and the documents incorporated therein by reference, is herein
called the "Preliminary Official Statement").
(d) Insofar as it relates to the Issuer, the Official
Statement is and at the Closing, as it may then be amended or
supplemented, will be, and the Preliminary Official Statement as
of its date was, accurate in all material respects in light of
the purposes for which its use is or was authorized; and insofar
as it relates to the Issuer, the Official Statement does not and,
as it may then be amended or supplemented, will not at such
Closing, and the Preliminary Official Statement as of its date of
issue did not, include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under
which they are or were made, not misleading, except that the
foregoing does not apply to statements in or omissions from the
Official Statement or the Preliminary Official Statement based
upon written information furnished to the Issuer by the
Underwriters specifically for use therein.
(e) The Issuer has duly authorized all necessary
action to be taken by it for:
(i) the issuance and sale of the Bonds upon the terms
set forth herein and in the Official Statement;
(ii) the approval of the Official Statement and the
signing of the Official Statement by the President of the
Police Jury of the Issuer;
(iii) the refunding of the Prior Bonds; and
(iv) the execution, delivery and due performance of
this Bond Purchase Agreement, the Indenture, the Bonds, the
Refunding Agreement and any and all such other agreements
and documents as may be required to be executed, delivered
and received by the Issuer in order to carry out, give
effect to and consummate the transactions contemplated by
this Bond Purchase Agreement and by the Official Statement;
and no consent, approval, authorization or other action by any
other governmental or regulatory authority (other than any
approvals under the securities or "Blue Sky" laws of any
jurisdiction) is or will be required for the taking of such
actions by the Issuer.
(f) Executed counterparts of the Indenture and the
Refunding Agreement will be delivered to the Representative by
the Issuer at the Closing. The Bonds, when issued, delivered and
paid for as in this Bond Purchase Agreement and the Indenture
provided, will have been duly authorized and issued and will
constitute valid and binding limited obligations of the Issuer
enforceable (except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other laws affecting enforcement of creditors' rights and by
general equitable principles) in accordance with, and entitled to
the benefits and security of, the Indenture. The Bonds
(including premium thereon, if any) and the interest thereon do
not constitute an indebtedness or pledge of the general credit of
the Issuer within the meaning of any Louisiana constitutional or
statutory provision and do not constitute an obligation of or
charge against the taxing powers of the Issuer. The Bonds are
limited obligations of the Issuer and do not grant to the holders
thereof any right to have the Issuer levy any taxes for the
payment of principal of, premium, if any, and interest on the
Bonds, such principal, premium and interest being payable solely
out of the monies to be received by the Issuer from the payments
to be made by the Company pursuant to the Refunding Agreement,
all as more specifically set forth in the Indenture.
(g) The Issuer will apply the proceeds from the sale
of the Bonds as specified in the Indenture and in the Refunding
Agreement. So long as any of the Bonds remain outstanding, and
except as may be authorized by the Indenture, the Issuer will not
issue or sell any bonds or obligations, other than the Bonds sold
hereby, the principal of or premium, if any, or interest on which
will be payable from the payments to be made by the Company
pursuant to the Refunding Agreement.
(h) There is no action, suit, proceeding, inquiry or
investigation at law or in equity or before or by any court,
public board or body pending or, to the knowledge of the Issuer,
threatened against or affecting the Issuer (or, to the best
knowledge of the Issuer, any basis therefor) wherein an
unfavorable decision, ruling or finding would adversely affect:
(i) the transactions contemplated by this Bond
Purchase Agreement or by the Indenture, the Refunding
Agreement or the Official Statement, or
(ii) the validity of the Bonds, the Indenture, the
Refunding Agreement, this Bond Purchase Agreement or any
agreement or instrument to which the Issuer is a party and
which is used or contemplated for use in the consummation of
the transactions contemplated hereby or by the Official
Statement.
(i) The execution and delivery of the Official
Statement, this Bond Purchase Agreement, the Bonds, the
Indenture, the Refunding Agreement and the other agreements
contemplated hereby and by the Official Statement, compliance
with the provisions thereof and the other agreements contemplated
hereby and consummation of the transactions contemplated therein,
will not conflict with or constitute on the part of the Issuer a
breach of or a default under any existing law, court or
administrative regulation, decree or order or any agreement,
indenture, mortgage, lease or other instrument to which the
Issuer is a party or is subject or by which it or any of its
property is or may be bound.
(j) Any certificate signed by an authorized officer of
the Issuer delivered to the Underwriters shall be deemed a
representation and warranty by the Issuer to each of the
Underwriters as to the statements made therein.
(k) The Issuer will take or cause to be taken such
other action as may be required on its part to consummate the
transactions contemplated by this Bond Purchase Agreement.
It is understood that the representations, warranties
and agreements of the Issuer contained in this Section 4 and
elsewhere in this Bond Purchase Agreement shall not create any
general obligation or liability of the Issuer and that any
obligation or liability of the Issuer hereunder or under the
Refunding Agreement or the Indenture is payable solely out of the
monies to be received by the Issuer from the payments to be made
by the Company pursuant to the Refunding Agreement.
5. The Underwriters have entered into this Bond Purchase
Agreement in reliance upon the representations and warranties of
the Issuer herein and the performance by the Issuer of its
obligations hereunder, both as of the date hereof and as of the
time of the Closing. The Underwriters' obligations under this
Bond Purchase Agreement are and shall be subject to the accuracy
on such dates of such representations and warranties and the
representations and warranties of the Company contained in the
Letter of Representation of even date herewith from the Company
to the Underwriters, the form of which is attached hereto as
Exhibit F (the "Letter of Representation"), to the performance by
the Issuer of its obligations hereunder and by the Company of its
obligations under the Letter of Representation and to the
following further conditions:
(a) At the time of the Closing, the Indenture and the
Refunding Agreement shall be in full force and effect and
shall not have been amended, modified or supplemented except
as may have been agreed to in writing by the Representative,
and by the Company and the Issuer, and the Issuer shall have
duly adopted and there shall be in full force and effect
such resolutions of the Issuer as in the opinion of Foley &
Judell ("Bond Counsel") shall be necessary in connection
with the transactions contemplated hereby;
(b) The marketability of the Bonds shall not (in the
reasonable opinion of the Representative) have been
materially and adversely affected by reason of the fact that
between the date hereof and the time of the Closing:
(i) legislation (including amendments to
existing laws) shall have been introduced in or enacted
by the Congress of the United States of America, or
recommended to the Congress for passage by the
President of the United States, or favorably reported
for passage to either house of the Congress by any
Committee of such house to which such legislation has
been referred for consideration, or
(ii) a decision shall have been rendered by a
court established under Article III of the Constitution
of the United States of America or the United States
Tax Court, or
(iii) an order, ruling, regulation or other
release shall have been officially made or proposed by
the Treasury Department of the United States or the
Internal Revenue Service or other governmental agency,
in each such case with the purpose or effect, directly or
indirectly, of imposing Federal income taxation upon
receipts, revenues or other income of the general character
expected to be derived by the Issuer under the Refunding
Agreement or by any similar body under any similar
arrangement or upon interest received on obligations of the
general character of the Bonds to a greater extent than
would be so under the Code as of the date hereof, or
(iv) (A) there shall have occurred any
general suspension of trading in securities on the New
York Stock Exchange, or (B) there shall have been
established by the New York Stock Exchange or by the
SEC or by any federal or state agency or by the
decision of any court minimum or maximum ranges for
prices for such trading (excluding existing "circuit
breaker" provisions in effect under New York Stock
Exchange rules on the date hereof), or (C) there shall
have been established a general banking moratorium in
New York by Federal or New York State authorities, or
(v) any other event shall have occurred
which results in the imposition of Federal income
taxation upon revenues or other income of the general
character to be derived by the Issuer under the
Refunding Agreement or by any similar body under any
similar arrangement or the imposition of federal income
taxation upon interest received on obligations of the
general character of the Bonds to a greater extent than
would be so under the Code as of the date hereof, or
(vi) legislation shall have been introduced
in or enacted in the State of Louisiana or any
political subdivision thereof which results in the
imposition of Louisiana taxes upon any amounts
receivable by the Issuer from the Company pursuant to
the Refunding Agreement;
(c) Between the date hereof and the time of the
Closing, no legislation with an effective date on or prior
to the Closing shall have been introduced in, and no
legislation shall have been enacted by, the House of
Representatives or the Senate of the Congress of the United
States of America, and no decision by a court of the United
States of America shall have been rendered, and no stop
order, ruling, regulation or official statement by or on
behalf of the SEC or other governmental agency having
jurisdiction of the subject matter shall have been issued,
made or proposed, to the effect that the issuance, offering
or sale of the Bonds as contemplated hereby or by the
Official Statement, or of obligations of the general
character of the Bonds, is in violation or would be in
violation, unless registered or otherwise qualified or
approved, of any provision of the Securities Act of 1933,
the Exchange Act, or the Trust Indenture Act of 1939, in
each case as amended and as then in effect (except to the
extent such registration, qualification or approval has
occurred);
(d) Between the date hereof and the time of the
Closing, no legislation, ordinance, rule or regulation shall
be enacted by any governmental body, department or agency in
the State of Louisiana or Texas, and no decision by any
court of competent jurisdiction within the State of
Louisiana or Texas shall have been rendered, with the
purpose or effect of prohibiting the issuance, offering or
sale of the Bonds as contemplated hereby and by the Official
Statement or the execution or performance of this Bond
Purchase Agreement, the Indenture or the Refunding Agreement
in accordance with their respective terms;
(e) Between the date hereof and the time of the
Closing, there shall not have occurred any outbreak or
escalation of hostilities or any calamity or crisis that, in
the reasonable judgment of the Representative, makes it
impracticable to market the Bonds;
(f) Between the date hereof and the time of the
Closing, no amendment or supplement to the Official
Statement shall have been prepared and furnished by the
Issuer or the Company the subject matter of which, in the
reasonable judgment of the Representative, materially
impairs the marketability of the Bonds;
(g) Between the date hereof and the time of the
Closing, neither Moody's Investors Service, Inc. ("Moody's)
nor Standard & Poor's Ratings Group ("S&P") shall have (i)
lowered its rating of the Bonds in any respect from its
rating of the Bonds announced to the Company on or prior to
the date hereof or (ii) placed such rating on Moody's
"Corporate Watchlist" or given any notice of "Credit Watch"
status by S&P with respect to such rating (or have given any
similar successor designation signifying that such rating is
under review for potential downgrading);
(h) Between the date hereof and the time of the
Closing, no event (excluding any event described in an
amendment or supplement to the Official Statement) shall
have occurred with respect to or otherwise affecting the
Company, or Entergy Corporation and its various direct and
indirect subsidiaries (the "Entergy System") taken as a
whole as it affects the Company, which in the reasonable
opinion of the Representative materially impairs the
investment quality of the Bonds;
(i) Between the date hereof and the time of the
Closing, any proposed changes to the Indenture and the
Refunding Agreement shall have been forthwith communicated
to the Representative and any such changes that are material
shall have been satisfactory to the Representative and its
counsel and such counsel will, at the request of the
Company, confirm such satisfaction in writing;
(j) At or prior to the time of the Closing, the
Representative shall have received the following documents:
(i) the unqualified approving opinion, dated
the date of Closing, of Bond Counsel substantially in
the form attached hereto and marked Exhibit A and with
sufficient copies for the Underwriters (which opinion
shall be attached to the certificate or certificates
representing the Bonds delivered to DTC and which form
of opinion shall also be attached to the Official
Statement as Appendix B);
(ii) a supplementary opinion of Bond Counsel
substantially in the form attached hereto and marked
Exhibit B and dated the date of Closing;
(iii) a certificate or certificates, dated the
date of Closing, signed by an appropriate official of
the Issuer and in form and substance satisfactory to
Bond Counsel to the effect that to the best of his
knowledge after reasonable investigation, the Issuer
has duly performed all of its obligations to be
performed at or prior to the Closing and each of the
representations and warranties of the Issuer contained
herein is true and correct as of the Closing. In such
certificate or in a separate certificate, such official
shall further set forth with particularity facts,
estimates and circumstances of a character sufficient
to enable Bond Counsel to render the opinion specified
in paragraph (7) of Exhibit B hereto, and shall be
otherwise in form and substance satisfactory to Bond
Counsel;
(iv) a letter or letters from the Company's
independent certified public accountants, dated as of
the date of the Closing, in form and substance
satisfactory to the Representative and, to the extent
permitted by Statement on Auditing Standards No. 72
issued by the American Institute of Certified Public
Accountants, Inc., covering such matters as the
Underwriters may reasonably request;
(v) evidence satisfactory to the
Underwriters that the Letter of Representation has been
duly authorized, executed and delivered, has not been
amended, modified or rescinded and is in full force and
effect as of the time of the Closing, together with a
certificate, dated the date of the Closing, signed by a
principal financial or accounting officer of the
Company in which such officer states that, to the best
of his or her knowledge after reasonable investigation,
the representations and warranties of the Company in
the Letter of Representation are true and correct in
all material respects and that the Company has complied
with all agreements, and satisfied all conditions on
its part herein and therein set forth, to be performed
or satisfied at or prior to the time of the Closing;
(vi) opinions of Laurence M. Hamric, Esq. and
Reid & Priest, each as counsel to the Company, dated
the date of Closing, substantially in the forms annexed
hereto as Exhibits C and D, respectively;
(vii) an opinion of Winthrop, Stimson, Putnam
& Roberts, counsel for the Underwriters, dated the date
of Closing, substantially in the form annexed hereto as
Exhibit E;
(viii) an opinion of Hal Ware, Esq., District
Attorney of the Parish of West Feliciana, Louisiana, in
form and substance satisfactory to the Underwriters;
(ix) evidence that the Bonds have received
ratings of Baa3 or better from Moody's and BBB- or
better from S&P; and
(x) such additional certificates, opinions or
documents as the Underwriters reasonably request to
evidence the due satisfaction at or prior to the time
of the Closing of all conditions then to be satisfied
in connection with the transactions contemplated
hereby; and
(k) There shall have been issued and, at the time of
the Closing, there shall be in full force and effect an
appropriate order or orders of the SEC under the Public
Utility Holding Company Act of 1935, as amended (the
"Holding Company Act"), authorizing the participation of the
Company in the issuance and sale of the Bonds on the terms
set forth in or contemplated by this Bond Purchase Agreement
and the Official Statement.
In rendering their opinions referred to above, Reid &
Priest, Winthrop, Stimson, Putnam & Roberts, Laurence M. Hamric,
Esq. and Foley & Judell may rely, in rendering their opinions,
respectively, on opinions of other counsel, to the extent stated
in the forms of opinion attached hereto.
If the Issuer and the Company shall be unable to
satisfy the conditions to the obligations of the Underwriters
contained in this Bond Purchase Agreement, the Underwriters may,
in their sole discretion, waive such condition or terminate this
Bond Purchase Agreement, and if this Bond Purchase Agreement
terminates, or if the obligations of the Underwriters shall be
terminated for any other reason permitted by this Bond Purchase
Agreement, then neither the Underwriters nor the Issuer shall
have any further obligations hereunder, except as otherwise
provided in Section 6.
6. The Issuer and the Company shall be under no obligation to
pay any, and the Underwriters agree to pay all, expenses incurred
by the Underwriters in connection with the public offering and
sale of the Bonds, including, without limitation, the expenses in
connection with the procurement by the Underwriters of
immediately available funds for the payment of the purchase price
of the Bonds as required by Section 3 of this Bond Purchase
Agreement and the fees and expenses of Underwriters' counsel;
provided, however, that, if the Bonds are not sold and delivered
by the Issuer to the Underwriters because of (i) the failure of
the Issuer or the Company to perform its obligations hereunder or
under any other instrument executed in connection with the
transactions contemplated hereby, or (ii) except as provided in
the next sentence, the non-fulfillment of any of the conditions
set forth in Section 5, the Company shall pay all reasonable and
necessary expenses and costs incurred by the Underwriters
(including legal fees and disbursements, but excluding any claim
for anticipated profits from the purchase and resale of the
Bonds) up to a maximum amount of $50,000. For purposes only of
this Section 6, the occurrence of an event described in paragraph
(b), (c), (d), (e) or (g) of Section 5 (but, in respect of
paragraph (g), only if, in the opinion of the Representative, a
rating downgrade was due to an event other than an event relating
primarily to the properties, business or financial condition of
the Company or the Entergy System) shall not constitute such a
non-fulfillment of a condition set forth in Section 5.
Except as otherwise provided in Section 2(g) of the
Letter of Representation, the Underwriters shall be under no
obligation to pay any, and the Issuer shall pay (or cause to be
paid) solely from the proceeds of the sale of the Bonds all,
charges, fees and costs incurred in connection with or incident
to the performance of the Issuer's obligations in connection with
the proposed issuance and sale of the Bonds and the fulfillment
of the conditions imposed hereunder, including but not limited to
the cost of printing, engraving and delivering the Bonds, the
preparation of the Indenture, the Refunding Agreement and related
documents, the printing of this Bond Purchase Agreement, the
Letter of Representation, the Blue Sky Survey, the Preliminary
Official Statement and the Official Statement in reasonable
quantities, the fees and expenses of Bond Counsel and counsel for
the Issuer, reimbursement of the Underwriters for any expenses
(including fees and disbursements of counsel) incurred in
connection with the qualification of the Bonds for sale and the
determination of the eligibility of the Bonds for investment
under the laws of such jurisdictions as the Representative
designates, and any fees incurred in obtaining ratings of the
Bonds. The reimbursement of the Underwriters for expenses
(including fees of counsel) incurred in connection with the
qualification of the Bonds under "Blue Sky" laws will not exceed
$5,000.
7. If at the time of the Closing any Underwriter or
Underwriters shall fail to purchase the principal amount of Bonds
to be purchased by it in accordance with the terms hereof, and
the aggregate principal amount of Bonds which such defaulting
Underwriter or Underwriters so fail to purchase does not exceed
20% of the aggregate principal amount of the Bonds, the remaining
Underwriters shall be obligated severally in proportion to their
respective commitments hereunder to purchase the Bonds that such
defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters shall so fail to
purchase Bonds and the aggregate principal amount of Bonds with
respect to which such failure or failures occur is more than 20%
of the aggregate principal amount of the Bonds, the remaining
Underwriters shall have the right, but shall not be obligated, to
take up and pay for (in such proportions as may be agreed upon
among them) the Bonds that the defaulting Underwriter or
Underwriters agreed but failed to purchase. In the event that
such remaining Underwriters do not on or before the date of
delivery of the Bonds so agree, they shall have the privilege
within 24 hours after such date of substituting another
underwriter or underwriters satisfactory to the Issuer and the
Company who will agree to take up and pay for such Bonds on the
postponed date of delivery. If the remaining Underwriters shall
not have so agreed to take up and pay for such Bonds and shall
not have so substituted another underwriter or underwriters upon
termination of such 24-hour period, the Issuer, at the direction
of the Company, during a further 24-hour period may find another
underwriter or underwriters, satisfactory to the Representative
and the Company, to purchase such Bonds. In the event of the
agreement by the remaining Underwriters to take up and pay for
such Bonds, or the substitution of another underwriter or
underwriters, as aforesaid, (i) the Representative or the Issuer
shall have the right to fix as a postponed date of the Closing a
date not later than four full business days after the date
specified in Section 3, and (ii) the respective principal amounts
of Bonds to be purchased by the remaining Underwriters or
substituted underwriter or underwriters shall be taken as the
basis of their respective underwriting obligations for all
purposes of this Bond Purchase Agreement. Before any such
postponed Closing, any changes that in the reasonable opinion of
the Issuer, the Company and the Representative may be necessary
in the Official Statement or in any other documents or
arrangements by reason of such withdrawal or default of any
Underwriter shall be effected. In case the remaining
Underwriters shall not have agreed to take up and pay for said
Bonds, and another underwriter or underwriters shall not have
been substituted as aforesaid, then this Bond Purchase Agreement
shall terminate. In the event of any such termination, the
Issuer shall not be under any liability to any Underwriter nor
shall any nondefaulting Underwriter be under any liability to the
Issuer or the Company; and all costs and expenses that were to be
paid or reimbursed pursuant to Section 6 hereof shall be paid or
reimbursed by the Company or the Underwriters, as the case may
be, in accordance with the provisions of Section 2(g) of the
Letter of Representation; provided, however, that nothing herein
shall be deemed to bar any claim the Company may have with
respect to such costs and expenses against any defaulting
underwriter or underwriters.
8. Any notice or other communication to be given to the
Issuer under this Bond Purchase Agreement may be given by
delivery of the same at its address set forth above and any
notice or other communication to be given to the Underwriters may
be given by delivery of the same to Morgan Stanley & Co.
Incorporated, 1221 Avenue of the Americas, 5th Floor, New York,
New York 10020, Attention: Public Finance Department.
9. This Bond Purchase Agreement is made solely for the
benefit of the Issuer, the Company and the Underwriters
(including the successors or assigns of any Underwriter) and no
other person shall acquire or have any right hereunder or by
virtue hereof. All representations, warranties and agreements by
the Issuer in this Bond Purchase Agreement will remain operative
and in full force and effect regardless of any investigation made
by or on behalf of the Underwriters and shall survive the
delivery of and payment for the Bonds. This Bond Purchase
Agreement supersedes all prior agreements between the parties
hereto. It is expressly agreed that this is an offer of outright
purchase of the Bonds on our part and your acceptance hereof
shall constitute an agreement of outright sale of the Bonds on
your part, and no relationship of principal and agent is
contemplated or created, expressly or by implication. The terms
"successors" and "assigns" shall not include any purchaser, as
such purchaser, of any Bonds from the Underwriters.
10. Except for matters specifically relating to the rights,
duties and obligations of the Issuer hereunder, which shall be
governed by Louisiana law, this Bond Purchase Agreement shall be
a New York contract and its validity and interpretation shall be
governed by the law of the State of New York.
11. This Bond Purchase Agreement may be executed in several
counterparts each of which shall be regarded as original and all
of which shall constitute one and the same document.
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO.
HOWARD, WEIL, LABOUISSE, FRIEDRICHS INCORPORATED
J.C. BRADFORD & CO.
SCHARFF & JONES
Division of Morgan Keegan & Company, Inc.
STEPHENS INC.
By: MORGAN STANLEY & CO. INCORPORATED
By /s/ Francis J. Sweeney
Name: Francis J. Sweeney
Title: Vice President
Accepted as of the date
first above written:
PARISH OF WEST FELICIANA, STATE OF LOUISIANA
By: /s/ John Cobb
President, West Feliciana Parish Police Jury
(Seal)
ATTEST:
/s/ Sheila L. Smith
Secretary, West Feliciana Parish Police Jury
<PAGE>
SCHEDULE I
Principal
Underwriter Amount
Morgan Stanley & Co. Incorporated. $40,800,000
Goldman, Sachs & Co. $20,400,000
Howard, Weil, Labouisse, Friedrichs Incorporated $10,200,000
J.C. Bradford & Co. $10,200,000
Scharff & Jones
Division of Morgan Keegan & Company, Inc. $10,200,000
Stephens Inc. $10,200,000
Total . . . . . . . . . . . . . . . . . . . $102,000,000
<PAGE>
EXHIBIT A
[LETTERHEAD OF FOLEY & JUDELL]
Honorable West Feliciana Parish Police Jury
St. Francisville, Louisiana
December __, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the
Underwriters named in the Bond
Purchase Agreement, dated December __, 1994
$102,000,000
PARISH OF WEST FELICIANA, STATE OF LOUISIANA
POLLUTION CONTROL REVENUE REFUNDING BONDS
(GULF STATES UTILITIES COMPANY PROJECT)
SERIES 1994
We have acted as bond counsel to the Parish of West
Feliciana, State of Louisiana (the "Issuer"), a political
subdivision of the State of Louisiana (the "State"), created and
existing pursuant to the laws of the State, in connection with
the issuance by the Issuer of the captioned bonds (the "Bonds")
pursuant to Chapter 14-A of Title 39 of the Louisiana Revised
Statutes of 1950, as amended (La.R.S. 39:1444-1456) (the "Act").
The Bonds have been issued by the Issuer pursuant to
the Act and other constitutional and statutory authority and a
Trust Indenture dated as of December 1, 1994 (the "Indenture"),
between the Issuer and First National Bank of Commerce, in the
City of New Orleans, Louisiana, as trustee (the "Trustee").
Capitalized terms used herein which are not otherwise defined
have the meanings given them in the Indenture.
The Bonds are issuable as fully registered bonds, are
dated, bear interest until paid at the rate per annum, mature in
the principal amount and on the date, and are subject to
redemption all as set forth in the Indenture and in the Bonds.
The Bonds are issued under and are secured as to
principal, redemption premium, if any, and interest by the
Indenture, which provides a description of the nature and extent
of the security for the Bonds, a statement of the terms and
conditions under which the Bonds are issued and secured, the
rights, duties and obligations of the Issuer, the rights, duties
and immunities of the Trustee and the rights of the owners of the
Bonds.
The Bonds are issued for the purpose of refunding,
prior to maturity, the Issuer's outstanding $102,000,000
aggregate principal amount of Pollution Control Revenue Bonds
(Gulf States Utilities Company Project) Series 1984A, Series
1984B, Series 1984C and Series 1984D (collectively, the "Prior
Bonds") (which were issued to provide funds for the cost of
acquiring, improving and equipping a project which consists of
the undivided interest of Gulf States Utilities Company, a Texas
corporation (the "Company"), in certain water pollution control
and sewage disposal facilities (the "Facilities") at River Bend
Unit 1, a 940 megawatt boiling water nuclear electric generating
plant, located within the Parish of West Feliciana, State of
Louisiana), pursuant to the Refunding Agreement, dated as of
December 1, 1994, between the Issuer and the Company the
("Refunding Agreement"), whereby the Company has agreed to make
payments to the Trustee in an amount sufficient to pay the
principal of, premium, if any, and interest on the Bonds.
We have examined (i) the Constitution and statutes of
the State, including the Act; (ii) a certified transcript of the
proceedings of the Issuer authorizing the issuance of the Bonds;
(iii) the Indenture, the Refunding Agreement and the Tax
Certificate of the Company dated the date hereof (the "Tax
Certificate"); and (iv) such other documents, instruments and
papers as we have deemed relevant to the issuance of the Bonds
and necessary for the purpose of this opinion.
On the basis of the foregoing examinations, we are of
the opinion, as of the date hereof and under existing law, that:
1. The Issuer is a validly existing political
subdivision of the State and has the power and authority to
enter into the Refunding Agreement and the Indenture and to
issue and sell the Bonds.
2. The Bonds are valid and binding special and limited
obligations of the Issuer secured by and entitled to the
benefits of the Indenture and are payable solely from the
Revenues and other amounts pledged and assigned under the
Indenture.
3. The Refunding Agreement and the Indenture have been
duly authorized, executed and delivered by the Issuer and
constitute valid and binding obligations of the Issuer,
enforceable upon the Issuer, and all rights and interests of
the Issuer under the Refunding Agreement have been validly
assigned to the Trustee under the Indenture, with the
exception of certain rights of the Issuer relating to
exculpation, indemnification and payment of expenses.
4. The Bonds and interest thereon do not constitute an
indebtedness or pledge of the general credit of the Issuer
within the meaning of any State constitutional or statutory
provision and will not constitute an obligation or a charge
against the taxing powers of the Issuer.
5. Interest on the Bonds is excluded from gross income
of the owners thereof for federal income tax purposes,
except that such exclusion does not apply with respect to
interest on any Bond for any period during which it is held
by a person who is a "substantial user" of the Facilities or
a "related person" within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code") and interest
on the Bonds is not an item of tax preference for purposes
of the federal alternative minimum tax on individuals and
corporations except that interest on the Bonds will be
included in a corporate taxpayer's "adjusted current
earnings" for purposes of computing its federal alternative
minimum income tax and its Superfund "environmental tax"
liability.
6. Under the Act, the Bonds and the income therefrom
are exempt from all taxation by the State or any political
subdivision thereof.
In rendering the opinions expressed in paragraph 5
above, we have relied on representations of the Issuer and the
Company with respect to matters within the knowledge of the
Issuer and the Company which we have not independently verified,
and have assumed continuing compliance with the covenants in the
Tax Certificate, the Indenture and the Refunding Agreement
pertaining to those sections of the Code which affect the
exclusion from gross income of interest on the Bonds for federal
income tax purposes. In the event that such representations are
determined to be inaccurate or the Issuer or the Company fails to
comply with the foregoing covenants, interest on the Bonds could
be includable in gross income for federal income tax purposes
from the date of their original delivery, regardless of the date
on which the event causing such inclusion occurs.
It is to be understood that the rights of the owners of
the Bonds and the enforceability of the Bonds, the Indenture, the
Refunding Agreement and the other documents enumerated above may
be subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting
creditors' rights heretofore or hereafter enacted to the extent
constitutionally applicable, and that their enforcement may also
be subject to the exercise of the sovereign police powers of the
State or its governmental bodies and the exercise of judicial
discretion in appropriate cases.
In rendering this opinion, we have relied upon the
opinion of even date herewith of Laurence M. Hamric, Esq. and
Reid & Priest, each as counsel to the Company, with respect to
(i) the due organization of the Company, (ii) the good standing
of the Company in the State of Texas and the State, (iii) the
corporate power of the Company to enter into, and the due
authorization, execution and delivery by the Company of, the
Refunding Agreement and the valid and binding effect thereof on
the Company, and (iv) matters which might be disclosed as a
result of an examination of the indentures, mortgages, deeds of
trust and other agreements or instruments to which the Company is
a party or by which it or its properties are bound. We have also
relied on the opinion of counsel to the Trustee with respect to
the corporate power of the Trustee to enter into and the due
authorization, execution and delivery by the Trustee of the
Indenture and the binding effect thereof on the Trustee.
For the purposes of this opinion, our services as bond
counsel have not extended beyond the examinations and expressions
of the conclusions referred to above. We have not examined the
title of any party to the Facilities and therefore express no
opinion thereon. Except as stated above, no opinion is expressed
as to any federal or state tax consequences resulting from the
ownership of, receipt of interest on, or disposition of the
Bonds.
Respectfully submitted,
FOLEY & JUDELL
<PAGE>
EXHIBIT B
[LETTERHEAD OF FOLEY & JUDELL]
December __ , 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December __, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
In connection with the several purchases by a group of
Underwriters of $102,000,000 aggregate principal amount of the
Parish of West Feliciana, State of Louisiana Pollution Control
Revenue Refunding Bonds (Gulf States Utilities Company Project)
Series 1994, bearing interest at the rate of % per annum (the
"Bonds"), pursuant to a Bond Purchase Agreement dated December
__, 1994 (the "Bond Purchase Agreement"), we, as Bond Counsel
therein named, have examined such documents, records and
certificates and have reviewed such questions of law as we have
deemed necessary or appropriate for the purposes of this opinion
and, upon the basis of such examination and review, we advise you
that, we are of the opinion, as of the date hereof and under
existing law, that:
12. The Bonds, the Indenture and the Refunding Agreement
conform as to form and tenor with the terms and provisions
thereof summarized in the Official Statement.
13. The information in the Official Statement with respect
to legal matters relative to the Issuer, the Bonds, the
Indenture, the Refunding Agreement and any legislation or
resolutions under which the Bonds are being issued or which
relate to the exclusion from gross income of interest on the
Bonds for federal income tax purposes, including, without
limitation, under the heading "Tax Matters", is correct and does
not omit any statement which, in our opinion, should be included
or referred to therein.
14. The Refunding Agreement, the Indenture and the Bond
Purchase Agreement have each been duly authorized, executed and
delivered by the Issuer.
15. The Bonds constitute exempted securities within the
meaning of Section 3(a)(2) of the Securities Act of 1933, as
amended, and Section 304(a)(4) of the Trust Indenture Act of
1939, as amended, and accordingly it is not necessary in
connection with the public offering and sale of the Bonds to
register the Bonds under said Securities Act or to qualify the
Indenture under said Trust Indenture Act.
16. No authorization, approval, consent or other order of
or filing with any governmental authority or agency other than
the Issuer, the Louisiana State Bond Commission and the Louisiana
Secretary of Economic Development is required for the valid
authorization, execution, issuance, sale or delivery of the Bonds
by the Issuer or the valid authorization, execution or delivery
of the Indenture, the Refunding Agreement and the Bond Purchase
Agreement by the Issuer, provided, however, that no opinion is
expressed herein with respect to compliance with the "blue sky"
or securities laws of any state.
17. No recording, registration or filing of the Indenture
and the Refunding Agreement or any financing statement or other
instrument by the Issuer is necessary in Louisiana or Texas for
the validity or enforceability thereof against the Issuer except
such as have been made.
18. The facts, estimates and circumstances set forth in the
certificates delivered pursuant to Section 5(j)(iii) of the Bond
Purchase Agreement are sufficiently so set forth to specify the
criteria which are necessary under Section 148 of the Internal
Revenue Code of 1986, as amended, and the applicable regulations
thereunder, to support the conclusion that the Bonds are not
"arbitrage bonds" within the meaning of said Section of said
Code, and no matters have come to our attention which make
unreasonable or incorrect the representations made in such
certificates.
19. All rights of the Issuer under the Refunding Agreement
have been validly assigned to the Trustee under the Indenture,
with the exception of certain rights of the Issuer relating to
notices, exculpation, indemnification, payment of fees and
reimbursement of expenses as more specifically described in the
Indenture.
It is to be understood that the enforceability of the
Refunding Agreement, the Indenture and the Bond Purchase
Agreement may be subject to bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors'
rights heretofore or hereafter enacted to the extent
constitutionally applicable and that their enforcement may be
subject to the exercise of judicial discretion in appropriate
cases.
Terms used and not otherwise defined herein have the
meanings assigned thereto in the Bond Purchase Agreement.
Respectfully submitted,
FOLEY & JUDELL
<PAGE>
EXHIBIT C
[LETTERHEAD OF LAURENCE M. HAMRIC, ESQ.]
December __, 1994
Honorable West Feliciana Parish Police Jury
St. Francisville, Louisiana
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December __, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
I, together with Reid & Priest, of New York, New York,
have acted as counsel to Gulf States Utilities Company (the
"Company") in connection with the issuance and sale by the Parish
of West Feliciana, State of Louisiana (the "Issuer"), of
$102,000,000 aggregate principal amount of its Pollution Control
Revenue Refunding Bonds (Gulf States Utilities Company Project)
Series 1994, bearing interest at the rate of % per annum (the
"Bonds") to the several Underwriters, under a bond purchase
agreement, dated December __, 1994 (the "Bond Purchase
Agreement"), between said Issuer and the several Underwriters
named in Schedule I thereto. This opinion is rendered to you at
the request of the Company.
In my capacity as such counsel, I have either
participated in the preparation of or have examined originals, or
copies duly certified or otherwise authenticated to my
satisfaction, of and am familiar with: (a) the Company's
Restated Articles of Incorporation, as amended (the "Charter"),
and By-Laws, as amended (the "By-Laws"); (b) the Trust Indenture,
dated as of December 1, 1994 (the "Indenture"), between the
Issuer and First National Bank of Commerce, as trustee (the
"Trustee"); (c) the Refunding Agreement, dated as of December 1,
1994, between the Issuer and the Company (the "Refunding
Agreement"), which, among other things, provides, in
consideration of the issuance of the Bonds by the Issuer, for the
making by the Company of certain payments to the Trustee, for the
account of the Issuer, in an amount sufficient to pay the
principal of, premium, if any, and interest on the Bonds; (d) the
Letter of Representation, dated December __, 1994 (the "Letter of
Representation"), among the Company, the Issuer and the several
Underwriters; and (e) the proceedings before the Securities and
Exchange Commission (the "Commission") under the Public Utility
Holding Company Act of 1935, as amended (the "'35 Act"), relating
to the proposed transaction. I have also examined such records
of the Company, certificates of public officials and officers of
the Company, and other documents, instruments and agreements, and
have satisfied myself as to such other matters, as I have deemed
necessary for the purpose of rendering the opinions set forth
herein. I have also participated in the preparation of, or have
examined and am familiar with, the official statement, dated
December __, 1994, including Appendix A thereto and the documents
incorporated by reference therein, relating to the Bonds (the
"Official Statement"). I have not examined the Bonds, except a
specimen thereof, and have relied upon a certificate of the
Trustee, as to the execution and authentication thereof.
In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me
as originals, the legal capacity of natural persons and the
conformity with the originals of all documents submitted to me as
copies. In making my examination of documents and instruments
executed or to be executed by persons other than the Company, I
have assumed that each such other person had the requisite power
and authority to enter into and perform fully its obligations
thereunder, the due authorization by each such other person for
the execution, delivery and performance thereof by such person,
and the due execution and delivery by or on behalf of such person
of each such document and instrument. In the case of any such
other person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below, that
each such other person is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which such
other person was created, and is duly qualified and in good
standing in each other jurisdiction where the failure to be so
qualified could reasonably be expected to have a material effect
upon the ability of such other person to execute, deliver and/or
perform such other person's obligations under any such document
or instrument. I have further assumed that each document,
instrument, agreement, record and certificate reviewed by me for
purposes of rendering the opinions expressed below has not been
amended by oral agreement, conduct or course of dealing of the
parties thereto, although I have no knowledge of any facts or
circumstances that could give rise to such amendment.
As to questions of fact material to the opinions
expressed herein, I have relied upon certificates and
representations of officers of the Company (including but not
limited to those contained in the Bond Purchase Agreement, the
Refunding Agreement, the Letter of Representation and
certificates delivered at the closing of the sale of the Bonds)
and appropriate public officials without independent verification
of such matters except as otherwise described herein.
Whenever my opinions herein with respect to the
existence or absence of facts are stated to be to my knowledge or
awareness, it is intended to signify that no information has come
to my attention or the attention of any other attorneys acting
for or on behalf of the Company or any of its affiliates that
have participated in the negotiation of the transactions
contemplated by the Bond Purchase Agreement, the Indenture and
the Refunding Agreement, the preparation of the Official
Statement or in the preparation of this opinion letter that would
give me, or them, actual knowledge that would contradict such
opinions. However, except to the extent necessary in order to
give the opinions hereinafter expressed, neither I nor they have
undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to
knowledge of the existence or absence of such facts should be
assumed.
On the basis of the foregoing, having regard for such
legal considerations as I have deemed relevant, and subject to
the other limitations and qualifications set forth below in this
letter, I am of the opinion that:
20. The Company is a corporation duly organized and validly
existing under the laws of the State of Texas, has all corporate
power and authority necessary to conduct its business as the same
is described in the Official Statement, is duly qualified to
conduct such business in the States of Texas and Louisiana, and
has adequate, valid and subsisting franchises, licenses and
permits for the conduct of such business in such States, such
States being the only jurisdictions in which the conduct of its
business requires qualification.
21. The Company has full power and authority to execute the
Refunding Agreement and the Letter of Representation; and the
Refunding Agreement and the Letter of Representation have been
duly authorized, executed and delivered and are valid and legally
binding obligations of the Company enforceable in accordance with
their respective terms.
22. An appropriate order has been issued by the Commission
under the '35 Act authorizing the execution and delivery by the
Company of the Refunding Agreement and the Letter of
Representation and such order, to the best of my knowledge,
remains in effect; such order is acceptable to the Company and is
sufficient for the execution and delivery by the Company of the
Refunding Agreement and the Letter of Representation, and no
other approval or consent of any other governmental body (other
than in connection or compliance with the provisions of the
securities or "Blue Sky" laws of any jurisdiction, including
Texas and Louisiana, as to which I express no opinion) is legally
required for the execution, delivery and performance by the
Company of the Refunding Agreement and the Letter of
Representation.
23. The offer and sale of the Bonds do not require
registration of the Bonds under the Securities Act of 1933, as
amended, and the Indenture is not required to be qualified under
the Trust Indenture Act of 1939, as amended.
24. The statements contained in the Official Statement under
the headings "The 1994 Bonds," "The Refunding Agreement" and "The
Indenture", insofar as such statements summarize the provisions
of the documents referred to therein, accurately and fairly
present the information purported to be shown.
25. Neither the execution and delivery by the Company of the
Refunding Agreement and the Letter of Representation, nor the
consummation by the Company of the transactions therein
contemplated, nor the fulfillment by the Company of the terms,
conditions and provisions thereof:
(A) conflicts with, violates or results in a breach of
any law, administrative regulation or court decree known to
me, after having made due inquiry with respect thereto,
applicable to the Company;
(B) conflicts with, or results in the breach of, any
of the terms, conditions or provisions of the Charter or By-
Laws of the Company;
(C) conflicts with or results in the breach of any of
the terms, conditions or provisions of any mortgage,
indenture, agreement or instrument known to me, after having
made due inquiry with respect thereto, to which the Company
is a party or by which any of its properties or assets is
bound, or constitutes a default thereunder; or
(D) will result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties or
assets of the Company pursuant to the terms of such
agreement or instrument, except for the rights of the Issuer
created under the Refunding Agreement;
in each case, except (B) above, that can reasonably be expected
to have a material adverse effect on the Company.
26. No recording, registration or filing by the Company of
the Refunding Agreement or any financing statement or other
instrument is necessary to perfect and preserve the rights
created thereunder and assigned to the Trustee thereunder or is
required for the validity thereof.
27. In the course of preparation of this opinion and the
Official Statement, I have conferred with certain officers,
employees and representatives of the Company and other counsel
for the Company, with your representatives and counsel and with
the independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Official Statement. My examination of the
Official Statement and my discussions in the above-mentioned
conferences did not disclose any information that gives me reason
to believe that the Official Statement at the date hereof (except
the information contained therein under the captions "The
Issuer", "The 1994 Bonds-Book-Entry System" and "Tax Matters" and
Appendix B and other than the financial statements and other
financial and statistical data included or incorporated by
reference therein, as to all of which I express no opinion
herein) contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The descriptions in Appendix A
to the Official Statement at the date hereof of statutes, legal
and governmental proceedings and contracts and other documents
are accurate and fairly present the information shown.
The foregoing opinions are subject to the following
comments, limitations and qualifications:
(a) The opinion in paragraph 2 above is subject, as to
enforceability, (i) to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally; (ii) to possible
limitations upon the exercise of remedial or procedural
provisions contained in the documents and instruments referred to
in such paragraphs, which limitations do not, in my opinion, make
the remedies and procedures afforded thereby (taken as a whole)
inadequate for the practical realization of the substantive
benefits intended to be provided therein, and which provisions do
not in my opinion affect the validity thereof; (iii) to the
application of general principles of equity, including but not
limited to the right to have specific performance of contract
obligations, regardless of whether considered in a proceeding in
equity or at law; and (iv) to principles of public policy that
may limit rights to indemnity under the Letter of Representation.
(b) The opinions rendered herein as to the legality,
validity, binding nature or enforceability of provisions of
documents and instruments that permit any person to take actions
or make determinations, or to require payments under indemnity,
acceleration and other provisions, are subject to the assumption
that such actions will be taken, such determinations will be made
or such payments will be required, on a reasonable basis and in
good faith.
My opinions are expressed as of the date hereof, and I
do not assume any obligation to update or supplement them to
reflect any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
I have examined the opinions of even date herewith
rendered to you by Reid & Priest and by Winthrop, Stimson, Putnam
& Roberts and concur in the conclusions expressed therein insofar
as they involve questions of Texas and Louisiana law.
I am a member of the Bar of the State of Texas and the
Bar of the State of Louisiana and do not hold myself out as
expert on the law of any other state for the purpose of this
opinion. As to all matters of New York law, I have, with your
approval, relied upon the opinion of even date herewith of Reid &
Priest, counsel to the Company. In rendering the opinion in
paragraph 4, I have, with your approval, relied upon an opinion
of even date herewith of Foley & Judell of New Orleans,
Louisiana, in their capacity as Bond Counsel, that, to the extent
stated therein, interest on the Bonds is excluded from the gross
income of the owners thereof for federal income tax purposes.
The opinions set forth above are solely for the benefit
of the addressees hereof in connection with the Bond Purchase
Agreement and the transactions contemplated thereunder, and may
not be relied upon in any manner by any other person or for any
other purpose without my prior written consent, except that Reid
& Priest and Winthrop, Stimson, Putnam & Roberts may rely upon
this opinion as to all matters of Texas and Louisiana law in
rendering their opinions of even date herewith.
Very truly yours,
LAURENCE M. HAMRIC, ESQ.
<PAGE>
EXHIBIT D
[LETTERHEAD OF REID & PRIEST]
December __, 1994
Honorable West Feliciana Parish Police Jury
St. Francisville, Louisiana
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December __, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
We, together with Laurence M. Hamric, Esq., have acted
as counsel for Gulf States Utilities Company (the "Company") in
connection with the issuance and sale by the Parish of West
Feliciana, State of Louisiana (the "Issuer") of $102,000,000
aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Gulf States Utilities Company Project) Series
1994, bearing interest at the rate of % per annum (the
"Bonds"), to the several Underwriters under the Bond Purchase
Agreement dated December __, 1994, between said Issuer and the
several Underwriters. This opinion is rendered to you at the
request of the Company.
In our capacity as such counsel, we have either
participated in the preparation of, or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation, as amended (the "Charter"), and By-Laws, as
amended; (b) the Trust Indenture dated as of December 1, 1994
(the "Indenture") between the Issuer and First National Bank of
Commerce, as Trustee (the "Trustee"); (c) the Refunding
Agreement, dated as of December 1, 1994 between the Issuer and
the Company (the "Refunding Agreement") which, among other
things, provides for, in consideration of the issuance of the
Bonds by the Issuer, the making by the Company of certain
payments to the Trustee, for the account of the Issuer, in an
amount sufficient to pay the principal of, premium, if any, and
interest on the Bonds; (d) the Letter of Representation, dated
December __, 1994, among the Company, the Issuer and the several
Underwriters (the "Letter of Representation"); and (e) the
proceedings before the Securities and Exchange Commission (the
"SEC") under the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), relating to the proposed transaction.
We have also examined such other documents and have satisfied
ourselves as to such other matters as we have deemed necessary in
order to render this opinion. We have also participated in the
preparation of, or have examined and are familiar with, the
official statement, dated December __, 1994, including Appendix A
thereto and the documents incorporated by reference therein,
relating to the Bonds (the "Official Statement"). We have not
examined the Bonds, except a specimen thereof, and we have relied
upon a certificate of the Trustee, as to the execution and
authentication thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
28. The Company has full power and authority to execute the
Refunding Agreement and the Letter of Representation; and the
Refunding Agreement and the Letter of Representation have been
duly authorized, executed and delivered by the Company and
(assuming they are valid and legally binding obligations of the
other parties thereto) are valid and legally binding obligations
of the Company enforceable against the Company in accordance with
their respective terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other laws
affecting the enforcement of creditors' rights and by general
equitable principles and except as rights to indemnity under the
Letter of Representation may be limited by principles of public
policy.
29. An appropriate order has been issued by the SEC under
the 1935 Act authorizing the execution and delivery by the
Company of the Refunding Agreement and the Letter of
Representation, and such order, to the best of our knowledge,
remains in effect; such order is sufficient for the execution and
delivery by the Company of the Refunding Agreement and the Letter
of Representation, and no other approval or consent of any
governmental body (other than in connection or compliance with
the provisions of the securities or "Blue Sky" laws of any
jurisdiction, as to which we express no opinion) is legally
required for the execution, delivery and performance by the
Company of the Refunding Agreement and the Letter of
Representation.
30. The offer and sale of the Bonds do not require
registration under the Securities Act of 1933, as amended (the
"1933 Act"), and the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended (the "1939
Act").
31. The statements contained in the Official Statement
under the headings "The 1994 Bonds", "The Refunding Agreement"
and "The Indenture", insofar as such statements summarize the
provisions of the documents referred to therein, accurately and
fairly present the information purported to be shown.
32. Neither the execution and delivery by the Company of
the Refunding Agreement and the Letter of Representation, nor the
consummation by the Company of the transactions therein
contemplated, nor the fulfillment by the Company of the terms,
conditions and provisions thereof conflicts with, or results in
the breach of, any of the terms, conditions or provisions of the
Charter of the Company, the By-laws of the Company, the Federal
Power Act, the 1935 Act, the 1933 Act, the Securities Exchange
Act of 1934, as amended, the 1939 Act or any financing agreement
known to us, after having made due inquiry with respect thereto,
to which the Company is a party or by which any of its properties
or assets is bound.
While we have, for purposes of this opinion, examined
and are familiar with the Official Statement, we necessarily
assume the correctness and completeness of the statements made or
furnished by the Company and information included in the Official
Statement and take no responsibility therefor except as set forth
in paragraph 4 above. In the course of preparation of the
Official Statement, we had conferences with certain officers,
employees and representatives of the Company, with other counsel
for the Company, with Foley & Judell in their capacity as Bond
Counsel, with your representatives and counsel and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Official Statement. Our examination of the
Official Statement and our discussions in the above-mentioned
conferences did not disclose to us any information which gives us
reason to believe that, at the date hereof, the Official
Statement [as amended or supplemented] (except the information
contained therein under the captions "The Issuer", "The 1994
Bonds-Book-Entry System" and "Tax Matters" and in Appendix B and
other than the financial statements and other financial and
statistical data included, or incorporated by reference, therein,
as to all of which we express no opinion herein) contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Texas and Louisiana law, we have, with your
approval, relied upon the opinion of even date herewith of
Laurence M. Hamric, Esq. We have not examined into and are not
passing upon matters relating to the incorporation of the
Company. In rendering the opinion in paragraph 3, we have, with
your approval, relied upon an opinion of even date herewith of
Foley & Judell of New Orleans, Louisiana, in their capacity as
Bond Counsel, that, to the extent stated therein, interest on the
Bonds is excluded from the gross income of the owners thereof for
federal income tax purposes.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the Bond
Purchase Agreement and the transactions contemplated thereunder,
and may not be relied upon in any manner by any other person or
for any other purpose without our prior written consent, except
that Laurence M. Hamric, Esq., may rely upon this opinion as to
all matters of New York law in rendering his opinion of even date
herewith.
Very truly yours,
REID & PRIEST
<PAGE>
EXHIBIT E
[LETTERHEAD OF WINTHROP, STIMSON, PUTNAM & ROBERTS]
December __, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December __, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
We have acted as counsel for you, as Representative of
the several Underwriters, in connection with the several
purchases by the Underwriters from the Parish of West Feliciana,
State of Louisiana (the "Issuer") of $102,000,000 aggregate
principal amount of the Issuer's Pollution Control Revenue
Refunding Bonds (Gulf States Utilities Company Project) Series
1994, bearing interest at the rate of % per annum (the
"Bonds"), pursuant to a Bond Purchase Agreement dated December
__, 1994 (the "Bond Purchase Agreement"). Capitalized terms used
herein and not otherwise defined herein have the meanings
assigned thereto in the Bond Purchase Agreement.
We are members of the New York bar and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of
any jurisdiction other than the State of New York and the United
States of America. We have, with your consent, relied upon an
opinion of even date herewith addressed to you by Laurence M.
Hamric, Esq., as to the matters covered in such opinion relating
to Texas and Louisiana law. We have also reviewed the opinion of
Reid & Priest required by Section 5(j)(vi) of the Bond Purchase
Agreement, and we believe said opinion to be satisfactory.
We have examined such other documents and satisfied
ourselves as to such other matters as we have deemed necessary in
order to enable us to express this opinion. We have not examined
into, and are expressing no opinion or belief as to matters
relating to, incorporation of the Company. We also have not
examined the Bonds, except a specimen thereof, and have relied
upon a certificate of the Trustee, as to the authentication and
delivery thereof. As to various questions of fact material to
this opinion, we have relied upon representations of the Company
and statements in the Official Statement under the headings "The
1994 Bonds", "The Refunding Agreement" and "The Indenture."
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
(1) The Letter of Representation has been duly
authorized, executed and delivered by the Company.
(2) The offer and sale of the Bonds do not require
registration of the Bonds under the Securities Act of 1933,
as amended, and the Indenture is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
(3) An appropriate order has been issued by the
Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935, as amended, authorizing the
execution and delivery by the Company of the Refunding
Agreement and the Letter of Representation, and such order,
to the best of our knowledge, remains in effect.
While we have, for purposes of this opinion, reviewed
and are familiar with the Official Statement, we necessarily
assume the correctness and completeness of the statements made or
furnished by the Company and information included, or
incorporated by reference, in the Official Statement and take no
responsibility therefor. In the course of preparation of the
Official Statement, we had conferences with certain officers,
employees and representatives of the Company, with counsel for
the Company, with your representatives, with Bond Counsel and
with the independent certified public accountants of the Company
who examined certain of the financial statements, incorporated by
reference in the Official Statement. Our review of the Official
Statement and our discussions in the above-mentioned conferences
did not disclose to us any information which gives us reason to
believe that, at the date hereof, the Official Statement [as
amended or supplemented] (except the information contained
therein under the captions "The Issuer", "The 1994 Bonds--Book-
Entry System" and "Tax Matters" and in Appendix B and except for
the financial statements and other financial and statistical data
included, or incorporated by reference, therein, as to all of
which we express no opinion) contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering the opinion in paragraph (2), we have
relied, with your approval, upon an opinion of even date
herewith, addressed to you, of Foley & Judell, of New Orleans,
Louisiana, as Bond Counsel, that, to the extent stated therein,
interest on the Bonds is excluded from the gross income of the
owners thereof for federal income tax purposes.
This opinion is solely for your benefit in connection
with the Bond Purchase Agreement and the transactions
contemplated thereunder and may not be relied upon in any manner
by any other person or for any other purpose without our prior
written consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE>
EXHIBIT F
LETTER OF REPRESENTATION
December 13, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December 13, 1994, with the Parish of
West Feliciana, State of Louisiana
Parish of West Feliciana, State of
Louisiana
The Police Jury House
9795 Royal Street
St. Francisville, Louisiana 70775
Re: Parish of West Feliciana, State of
Louisiana Pollution Control Revenue Refunding
Bonds (Gulf States Utilities Company Project)
Series 1994
Ladies and Gentlemen:
This letter is being delivered by the undersigned Gulf
States Utilities Company (the "Company") in order to induce
Morgan Stanley & Co. Incorporated and the Underwriters listed in
Schedule I to the Bond Purchase Agreement hereinafter referred to
(collectively the "Underwriters"), and the Parish of West
Feliciana, State of Louisiana (the "Issuer") to enter into a Bond
Purchase Agreement, dated December 13, 1994 (the "Bond Purchase
Agreement"), copies of the proposed form of which have been
delivered to us, providing for the purchase and public
distribution of $102,000,000 principal amount of the Issuer's
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 bearing interest at the rate of 8%
per annum (the "Bonds"). The Bonds are to be issued under a
Trust Indenture, dated as of December 1, 1994, between the Issuer
and First National Bank of Commerce, New Orleans, Louisiana, as
Trustee (the "Indenture"), for the purpose of refunding, prior to
maturity, the Issuer's outstanding $102,000,000 aggregate
principal amount of Pollution Control Revenue Bonds (Gulf States
Utilities Company Project) Series 1984A, Series 1984B, Series
1984C and Series 1984D (collectively, the "Prior Bonds") (which
were issued to provide funds for the cost of acquiring, improving
and equipping a project that consists of the undivided interest
of the Company in certain water pollution control and sewage
disposal facilities (the "Facilities") at River Bend Unit 1, a
940 megawatt boiling water nuclear electric generating plant,
located within the Parish of West Feliciana, State of Louisiana),
pursuant to the Refunding Agreement, dated as of December 1,
1994, between the Issuer and the Company ("Refunding Agreement"),
whereby the Company has agreed to make payments to the Trustee in
an amount sufficient to pay the principal of, premium, if any,
and interest on the Bonds.
33. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with the Issuer and
the several Underwriters that:
(a) (i) The descriptions and information contained in
the official statement, dated the date hereof, including
Appendix A thereto and the documents incorporated by
reference therein, relating to the Bonds and the Company
(the "Official Statement"), including without limitation
information relating to the Company's participation in the
transactions contemplated by the Indenture and the Refunding
Agreement, do not at the date hereof, (ii) as the Official
Statement may then be amended or supplemented, such
descriptions and information at the time of the Closing (as
defined in the Bond Purchase Agreement) will not, and (iii)
the descriptions and information contained in the
preliminary official statement, dated December 6, 1994,
including Appendix A thereto and the documents incorporated
by reference therein, relating to the Bonds and the Company
(the "Preliminary Official Statement"), as of its date did
not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they are or were made, not misleading; provided,
however, that none of the representations and warranties in
this paragraph (a) shall apply to those parts of the
Official Statement and Preliminary Official Statement
captioned "The Issuer", "The 1994 Bonds-Book-Entry System"
and "Tax Matters" or Appendix B, respectively, or to
statements in or omissions from the Official Statement or
the Preliminary Official Statement made in reliance upon and
in conformity with written information furnished to the
Company by the Underwriters through Morgan Stanley & Co.
Incorporated expressly for use therein. The Company deems
the Preliminary Official Statement final as of its date for
purposes of Rule 15c2-12(b)(1) of the Securities Act of
1934, as amended (the "Exchange Act"), except for the
information not required to be included in a preliminary
official statement as set forth in such rule. The Company
hereby consents to the use of the Official Statement in
connection with the sale and distribution of the Bonds by
the Underwriters and confirms that it has similarly
consented to the use of the Preliminary Official Statement
for such purpose prior to the availability of the Official
Statement. The financial statements included or
incorporated by reference in the Official Statement and in
the Preliminary Official Statement present fairly the
financial condition of the Company at the times and the
results of its operations for the periods indicated and such
financial statements have been prepared in conformity with
generally accepted accounting principles applied, except as
may be noted therein, on a consistent basis throughout the
periods covered by all of such statements. Since
December 31, 1993, there has been no material adverse change
in the financial condition, results of operations or general
affairs of the Company other than as set forth in or
contemplated by the Official Statement, as amended or
supplemented.
(b) The Company is a corporation duly organized and
validly existing in good standing under the laws of the
State of Texas; has the corporate power and authority to own
or lease and operate the properties now owned or leased by
it and to carry on its business as now being carried on by
it as described in Appendix A to the Official Statement; and
neither the character of properties owned or leased by it
nor the nature of the business transacted by it make the
licensing or qualification of the Company as a foreign
corporation necessary in any other state or jurisdiction.
(c) The execution and delivery of the Refunding
Agreement and this Letter of Representation and the
consummation of the transactions contemplated therein and
the fulfillment of the terms thereof will not result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is now,
or at the time of the Closing will be, a party, or by which
it is bound, or the Restated Articles of Incorporation, as
amended, or By-Laws, as amended, of the Company, or any
order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over the Company or its property.
(d) The Company has full corporate power and authority
to authorize, execute and deliver the Refunding Agreement on
the terms and conditions set forth therein and this Letter
of Representation on the terms and conditions set forth
herein and in the Bond Purchase Agreement, and has taken all
corporate action necessary therefor; all necessary
authorizations, approvals, consents or other orders of any
governmental authority or agency have been, or will be prior
to the time of the Closing, obtained for such authorization,
execution and delivery by the Company; and, when executed
and delivered in accordance with the Bond Purchase
Agreement, the Refunding Agreement and this Letter of
Representation (assuming they are valid and legally binding
obligations of the other parties thereto) will constitute
valid and legally binding obligations of the Company
enforceable against the Company in accordance with their
respective terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, or other
laws affecting creditors' rights generally and by general
equitable principles, and except as rights to indemnity
under this Letter of Representation may be limited by
principles of public policy.
(e) Subsequent to the respective dates as of which
information is given in the Official Statement or any
amendments or supplements thereto and prior to the time of
the Closing, and except as set forth in or contemplated by
the Official Statement or any amendments or supplements
thereto, (i) the Company has not incurred nor will it have
incurred any liabilities or obligations, direct or
contingent, or entered into any transaction, not in the
ordinary course of business, and (ii) there has not been and
will not have been any material adverse change in the
business, property or financial condition of the Company.
(f) Except as set forth in or contemplated by the
Official Statement, as amended or supplemented, there is not
pending any action, suit or other proceeding to which the
Company is a party or of which any property of the Company
is the subject, by or before any court or other governmental
body, that would, if adversely determined, result in any
material adverse change in the business, property or
financial condition of the Company, or have a material
adverse effect on the transactions contemplated by the Bond
Purchase Agreement and the Official Statement or on the
validity or enforceability of the Bonds, the Indenture, the
Refunding Agreement or this Letter of Representation; and no
such proceeding is known by the undersigned representative
of the Company, after inquiry, to be threatened or
contemplated.
(g) The information supplied by the Company to Foley &
Judell with respect to the Facilities is true, correct and
complete in all material respects for the purposes for which
it was supplied.
(h) The representations and warranties of the Company
in Section 2.2 of the Refunding Agreement are true and
correct in all material respects.
34. Covenants by the Company. In further consideration of
the agreements by the Issuer and the Underwriters contained
herein and in the Bond Purchase Agreement, the Company covenants
as follows:
(a) At its expense, it will cause to be prepared and,
upon the approval of and authorization by the Issuer,
furnished to the Underwriters as many copies of the Official
Statement (as amended or supplemented from time to time, but
excluding any documents incorporated by reference therein)
as the Underwriters may reasonably request for the public
offering of the Bonds. At its expense, it will cause to be
prepared and furnished to each of the Underwriters one copy
of each of the documents incorporated by reference in the
Official Statement, as it may be amended or supplemented,
and as many additional copies of such documents incorporated
by reference as shall be requested of the Underwriters by
prospective purchasers of the Bonds.
(b) As soon as the Company is advised thereof, it will
advise the Representative of the institution by the
Securities and Exchange Commission or any other governmental
or regulatory authority of any proceeding affecting the use
of the Official Statement or the marketing of the Bonds or
of the initiation, or threat of initiation, of any
proceedings for such purpose.
(c) It will not amend or supplement the Official
Statement without giving prior notice to the Representative
and to its counsel, Winthrop, Stimson, Putnam & Roberts, and
will not effect any amendment or supplement to which said
counsel shall reasonably object in writing.
(d) During the period beginning the date hereof and
ending 25 days after the end of the underwriting period as
defined in Rule 15c2-12(e)(2) of the Exchange Act, if any
event relating to or affecting the Company or of which the
Company shall be advised in writing by Morgan Stanley & Co.
Incorporated shall occur which, in the Company's opinion,
should be set forth in a supplement to or in an amendment of
the Official Statement in order to make the Official
Statement not misleading in the light of the circumstances
existing when it is delivered to a purchaser, the Company
will either (i) prepare and furnish to the Underwriters at
the Company's expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to
the Official Statement or (ii) make an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act, which
will, in either case, supplement or amend the Official
Statement so that as supplemented or amended it will not
contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances when
the Official Statement is delivered to a purchaser, not
misleading; provided, that should such event relate solely
to activities of any of the Underwriters, then the
Underwriters shall assume the expense of preparing and
furnishing any such amendment or supplement; and provided
further, that the expenses of complying with this subsection
shall be borne by the Company until the expiration of nine
months from the date hereof, and such expenses shall be
borne by the Underwriters thereafter.
(e) Upon the request of Morgan Stanley & Co.
Incorporated, to cooperate in arranging for qualification of
the Bonds by the Underwriters or on their behalf for offer
and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Representative may reasonably
designate, such qualification to be carried out under the
supervision of counsel for the Underwriters, provided,
however, that in satisfying the requirements of this
subsection (e), the Company shall not be required to (i)
qualify as a foreign corporation or dealer in securities,
(ii) consent generally to service of process in any
jurisdiction, or (iii) comply with any other requirements
reasonably deemed by it to be unduly burdensome.
(f) The Company will not take or omit to take any
action that will in any way cause or result in the use or
application of the proceeds from the sale of the Bonds in a
manner other than as provided in the Indenture and the
Refunding Agreement.
(g) Subject to the terms and conditions of the Bond
Purchase Agreement, the Company agrees to pay (i) the
expenses contemplated to be paid by it pursuant to the
proviso to the first paragraph of Section 6 thereof (unless
the sale of the Bonds shall have been prevented by the
Underwriters' breach, in which case the Underwriters shall
pay all such expenses), and (ii) if the Bonds are not issued
or if the proceeds of the Bonds are unavailable or
insufficient for the purpose, all of the expenses described
in the second paragraph of said Section 6 (except that if
the Bonds are not issued due to a termination of the Bond
Purchase Agreement pursuant to the penultimate sentence of
Section 7 thereof, the Company shall not be required to
reimburse the Underwriters for expenses (including fees and
disbursements of counsel) incurred in connection with the
qualification of the Bonds under "Blue Sky" laws and
eligibility for investment).
(h) The Company, subject to the terms and conditions
of the Refunding Agreement and the Bond Purchase Agreement,
will consummate the transactions on its part contemplated by
the Refunding Agreement, the Bond Purchase Agreement and the
Official Statement.
(i) The Company will furnish or cause to be furnished
to the Underwriters copies of the Indenture, the Refunding
Agreement and all amendments and supplements to such
documents, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(j) As soon as practicable after the Closing (as
defined in the Bond Purchase Agreement), the Company will
make all recordings, registrations and filings necessary, if
any, to perfect and preserve the rights created under the
Refunding Agreement.
35. Indemnification
(a) The Company hereby agrees to indemnify and hold
harmless the Issuer and each of the Underwriters, and any
member, officer, official or employee of any of the Issuer
or the Underwriters and each person, if any, who controls
any of the Underwriters within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), or the
Exchange Act (the "Related Persons") against any and all
losses, claims, damages or liabilities, joint or several,
whatsoever caused by any untrue statement or misleading
statement or alleged untrue statement or alleged misleading
statement of a material fact contained in the Official
Statement, the Preliminary Official Statement or any
amendment or supplement thereto or caused by any omission or
alleged omission from the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto of any material fact necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not misleading;
and to reimburse such party or parties for any legal or
other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage or
liability (or any action in respect thereof), such
reimbursement to occur at reasonable intervals but not more
frequently than monthly; provided, that the Company will not
be liable in any such case to the Issuer or any of its
members, officers, officials or employees to the extent such
losses, claims, damages, liabilities or expenses are caused
by any statements made in the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto, in reliance upon information provided by
the Issuer in the section therein headed "The Issuer"; and
provided, further, that the Company will not be liable in
any such case to the Underwriters and the Related Persons to
the extent such losses, claims, damages, liabilities or
expenses are caused by any such untrue or misleading
statement or omission or alleged untrue or misleading
statement or omission made in reliance upon and in
conformity with written information furnished to the Issuer
or the Company by or through Morgan Stanley & Co.
Incorporated expressly for use therein. This indemnity
agreement will be in addition to any liability that the
Company may otherwise have. No indemnity by the Company to
the Underwriters and the Related Persons hereunder shall
apply in respect of any Preliminary Official Statement or
Official Statement furnished by an Underwriter to a person
to whom any of the Bonds are sold, insofar as such indemnity
relates to any untrue or misleading statement or omission
made in such Preliminary Official Statement or Official
Statement but eliminated or remedied prior to the
consummation of such sale in the Official Statement or any
amendment or supplement thereto, respectively, unless a copy
of the Official Statement (excluding documents incorporated
by reference therein) (in the case of such a statement or
omission made in the Preliminary Official Statement) or such
amendment or supplement (excluding documents incorporated by
reference in the Official Statement) (in the case of such a
statement or omission made in the Official Statement) is
furnished by such Underwriter to such person prior to the
consummation of such sale.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company, any director, officer or employee of
the Company, and each person who controls the Company within
the meaning of the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities
whatsoever caused by any untrue statement or misleading
statement or alleged untrue statement or alleged misleading
statement of a material fact contained in the Official
Statement, the Preliminary Official Statement or any
amendment or supplement thereto or caused by any omission or
alleged omission from the Official Statement, the
Preliminary Official Statement or any amendment or
supplement thereto of any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading in each case to the extent, but only to
the extent, that such untrue or misleading statement or
omission or alleged untrue or misleading statement or
omission was made in reliance upon and in conformity with
written information furnished to the Issuer or the Company
by or through Morgan Stanley & Co. Incorporated expressly
for use therein; and to reimburse such party or parties for
any legal or other expenses reasonably incurred in
connection with investigating or defending any such loss,
claim, damage or liability (or any action in respect
thereof), such reimbursement to occur at reasonable
intervals but not more frequently than monthly. This
indemnity agreement will be in addition to any liability
which each Underwriter may otherwise have.
(c) Each indemnified party will, promptly after the
receipt of notice of the commencement of any action against
such indemnified party in respect of which indemnity
hereunder may be sought, notify the indemnifying parties in
writing of the commencement thereof, but the failure of such
indemnified party so to notify the indemnifying parties of
any such action shall not relieve the indemnifying party or
parties from any liability which it or they may have to such
indemnified party otherwise than under this Letter of
Representation. In case any such action shall be brought
against any indemnified party and such indemnified party
shall notify the indemnifying party or parties of the
commencement thereof, the indemnifying party or parties may,
except as otherwise provided in the next succeeding
sentence, participate therein or assume (in conjunction with
any other indemnifying party) the defense thereof, with
counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party or parties), and
after notice from the indemnifying party or parties to such
indemnified party of an election so to assume the defense
thereof, the indemnifying party or parties will not be
liable to such indemnified party under this indemnity
agreement for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right
to employ separate counsel in any such action in which the
defense has been assumed by the indemnifying party and
participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel has
been specifically authorized by the indemnifying party or
(ii) the named parties to any such action (including any
impleaded parties) include each of such indemnified party
and the indemnifying party and such indemnified party shall
have been advised by such counsel that a conflict of
interest between the indemnifying party and such indemnified
party may arise (and the indemnifying party's counsel shall
have concurred with such advice) and for this reason it is
not desirable for the same counsel to represent both the
indemnifying party and the indemnified party (it being
understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but
substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys for
such indemnified party and all persons related thereto (plus
any local counsel retained by such indemnified party in its
reasonable judgment), which firm (or firms), in the case of
the Underwriters and Related Persons being the indemnified
party, shall be designated in writing by Morgan Stanley &
Co. Incorporated and in the case of the Issuer and persons
related thereto being the indemnified party shall be
designated in writing by the Issuer). The indemnifying
party or parties shall not be liable for any settlement of
any such action effected without its or their consent, but
if settled with the consent of the indemnifying party or
parties or if there be a final judgment for the plaintiff in
any such action, the indemnifying party or parties agree to
indemnify and hold harmless the indemnified party from and
against any loss or liability by reason of such settlement
or judgment.
(d) As between the Company and the Underwriters, if
the indemnification provided for in this Section 3 is
unavailable to an indemnified party under subsections (a),
(b) or (c) hereof in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying
party in lieu of indemnifying such indemnified party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Bonds or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total
principal amount of Bonds purchased hereunder bears to the
total compensation received by the Underwriters, as set
forth in the Bond Purchase Agreement. The relative fault of
the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this
Section 3(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of
the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable to an
indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 3(d), in no
case shall any Underwriter be required to contribute any
amount in excess of the amount by which the total price at
which the Bonds were purchased by it exceeds the amount of
any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
in this Section 3(d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
36. Survival of Representations and Obligations. (a) The
representations and warranties and other agreements of the
Company contained in this Letter of Representation shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or the persons controlling the
Company and (ii) acceptance of and payment for the Bonds and (b)
the indemnity and contribution agreements contained in Section 3
shall remain operative and in full force and effect regardless of
any termination of this Letter of Representation.
37. Successors. This Letter of Representation has been
and is made solely for the benefit of the Issuer, the
Underwriters and the Company and, to the extent expressly
provided herein, for the benefit of the other persons referred to
in Section 3 hereof, and their respective successors and assigns,
and no other persons shall acquire or have any right under or by
virtue of this Letter of Representation. The term "successor"
shall not include any purchaser, as such purchaser, of any Bonds
from the Underwriters.
38. Applicable Law. Except for matters specifically
relating to the rights, duties and obligations of the Issuer
hereunder, which shall be governed by Louisiana law, this Letter
of Representation shall be a New York contract and its validity
and interpretation shall be governed by the law of the State of
New York.
39. Notices. Any notice or other communication to be given
to the Company under this Letter of Representation may be given
by mailing or delivering the same in writing to: Gulf States
Utilities Company, 639 Loyola Avenue, New Orleans, Louisiana,
70113 Attention: Treasurer. Any notice or other communications
to be given to the Underwriters under this Letter of
Representation may be given by mailing or delivering the same in
writing to Morgan Stanley & Co. Incorporated, 1221 Avenue of the
Americas, 5th Floor, New York, New York 10020, Attention: Public
Finance Department, and any notice or other communication to be
given to the Issuer under this Letter of Representation may be
given by mailing or delivering the same in writing to Parish of
West Feliciana, State of Louisiana, The Police Jury House, 9795
Royal Street, St. Francisville, Louisiana, 70775. The Company,
the Issuer or the Underwriters may, by notice given hereunder,
designate any further or different address to which subsequent
notices or other communications shall be sent.
40. Counterparts; Severability. This Letter of
Representation may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall
constitute one and the same agreement. Should any part of this
Letter of Representation for any reason be declared invalid, such
declaration shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and
effect as if this Letter of Representation had been executed with
the invalid portion thereof eliminated.
Kindly indicate your agreement as Issuer and as
Representative of the several Underwriters to the foregoing by
signing and returning to us the enclosed duplicate of this Letter
of Representation, whereupon it will become a binding agreement.
Very truly yours,
GULF STATES UTILITIES COMPANY
By_______________________________
Name:
Title:
Accepted as of the date
first above written:
Morgan Stanley & Co. Incorporated
On behalf of ourselves and
as Representative of the other
Underwriters named in Schedule
I to the Bond Purchase Agreement,
dated December 13, 1994, with the
Parish of West Feliciana, State of Louisiana
MORGAN STANLEY & CO. INCORPORATED
By_________________________
Name:
Title:
PARISH OF WEST FELICIANA, STATE OF
LOUISIANA
By____________________________________________
President, West Feliciana Parish Police Jury
Exhibit B-8(a)
T r u s t I n d e n t u r e
between
Parish of West Feliciana,
State of Louisiana
and
FIRST NATIONAL BANK OF COMMERCE
Dated as of December 1, 1994
$102,000,000
Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series 1994
<PAGE>
Table of Contents
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions -5-
SECTION 1.2. Use of Words -7-
ARTICLE II
THE BONDS
SECTION 2.1. Authorized Form and Amount of Bonds -8-
SECTION 2.2. Details of Bonds -8-
SECTION 2.3. Payment -8-
SECTION 2.4. Execution -9-
SECTION 2.5. Limited Obligation -9-
SECTION 2.6. Authentication -9-
SECTION 2.7. Delivery of the Bonds -9-
SECTION 2.8. Mutilated, Destroyed or Lost Bonds -10-
SECTION 2.9. Registration and Exchange of Bonds -10-
SECTION 2.10. Cremation and Other Dispositions -11-
SECTION 2.11. Temporary Bonds -11-
SECTION 2.12. Book-Entry Registration of Bonds -11-
ARTICLE III
REFUNDING FUND
SECTION 3.1. Creation of Refunding Fund -13-
SECTION 3.2. Deposit of Proceeds of Bonds -13-
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 4.1. Redemption -14-
SECTION 4.2. Notice -15-
SECTION 4.3. Redemption Payments -15-
SECTION 4.4. Cancellation -15-
SECTION 4.5. Partial Redemption of Bonds -15-
ARTICLE V
GENERAL COVENANTS
SECTION 5.1. Payment of Principal, Premium,
If Any, and Interest -16-
SECTION 5.2. Performance of Covenants -16-
SECTION 5.3. Instruments of Further Assurance -16-
SECTION 5.4. Recordation and Other Instruments -17-
SECTION 5.5. Inspection of Project Books -17-
SECTION 5.6. Rights Under Refunding Agreement -17-
SECTION 5.7. Prohibited Activities -17-
ARTICLE VI
REVENUES AND FUNDS
SECTION 6.1. Creation of Bond Fund -18-
SECTION 6.2. Payments Into Bond Fund -18-
SECTION 6.3. Use of Moneys in Bond Fund -18-
SECTION 6.4. Withdrawals from Bond Fund -18-
SECTION 6.5. Non-Presentment of Bonds -18-
<PAGE>
SECTION 6.6. Administration Expenses -19-
SECTION 6.7. Moneys to be Held in Trust -19-
SECTION 6.8. Refund to Company of Excess Payments -19-
ARTICLE VII
SECURITY FOR AND INVESTMENTS
SECTION 7.1. Investment of Moneys -20-
SECTION 7.2. Arbitrage Bond Covenant -20-
SECTION 7.3. Balance in Funds After
Payment of the Bonds -21-
ARTICLE VIII
RIGHTS OF THE COMPANY
SECTION 8.1. Rights of Company Under
Refunding Agreement -22-
SECTION 8.2. Enforcement of Rights and Obligations -22-
ARTICLE IX
DISCHARGE OF LIEN
SECTION 9.1. Discharge of Lien -23-
ARTICLE X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
SECTION 10.1. Events of Default -24-
SECTION 10.2. Acceleration -24-
SECTION 10.3. Other Remedies; Rights of Bondholders -25-
SECTION 10.4. Right of Bondholders to Direct
Proceedings -26-
SECTION 10.5. Appointment of Receiver -26-
SECTION 10.6. Waiver -26-
SECTION 10.7. Application of Moneys -26-
SECTION 10.8. Remedies Vested in Trustee -27-
SECTION 10.9. Rights and Remedies of Bondholders -28-
SECTION 10.10. Termination of Proceedings -28-
ARTICLE XI
THE TRUSTEE AND PAYING AGENTS
SECTION 11.1. Acceptance of Trusts -29-
SECTION 11.2. Fees, Charges and Expenses of Trustee
and Paying Agents -31-
SECTION 11.3. Notice to Bondholders of Default -31-
SECTION 11.4. Intervention by Trustee -32-
SECTION 11.5. Merger or Consolidation of Trustee -32-
SECTION 11.6. Resignation by Trustee -32-
SECTION 11.7. Removal of Trustee -32-
SECTION 11.8. Appointment of Successor Trustee -32-
SECTION 11.9. Concerning Any Successor Trustee -33-
SECTION 11.10. Reliance Upon Instruments -33-
SECTION 11.11. Appointment of Co-Trustee -33-
SECTION 11.12. Designation and Succession of Paying
Agents -34-
SECTION 11.13. Several Capacities -34-
<PAGE>
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.1. Supplemental Indentures Without
Bondholder Consent -35-
SECTION 12.2. Supplemental Indentures Requiring
Bondholder Consent -35-
SECTION 12.3. Consent of Company -36-
SECTION 12.4. Opinion of Bond Counsel -36-
ARTICLE XIII
AMENDMENT TO REFUNDING AGREEMENT
SECTION 13.1. Amendments With and Without the Consent
of Bondholders -38-
SECTION 13.2. Notice to Bondholders -38-
SECTION 13.3. Opinion of Bond Counsel -38-
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Consents, etc -39-
SECTION 14.2. Limitation of Rights -39-
SECTION 14.3. Severability -39-
SECTION 14.4. Notices -40-
SECTION 14.5. Applicable Provisions of Law -40-
SECTION 14.6. Counterparts -40-
SECTION 14.7. Successors and Assigns -40-
SECTION 14.8. Captions -41-
SECTION 14.9. Photocopies and Reproductions -41-
SECTION 14.10. Bonds Owned by the Company -41-
SECTION 14.11. Holidays -41-
SECTION 14.12.Subordination to Rights of the Company -41-
EXHIBIT A Form of Bond
<PAGE>
Trust Indenture
This Trust Indenture dated as of December 1, 1994 by and
between the Parish of West Feliciana, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and First National Bank of Commerce, a national banking
association, incorporated and existing under the laws of the
United States of America with its principal office and domicile
located in New Orleans, Louisiana (in its capacity herein,
together with any successors in such capacity, called the
"Trustee"),
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the Constitution
and laws of such State and is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (La. R.S.
39:1444-1456) (the "Act"), to issue refunding bonds for the
purpose of refunding, readjusting, restructuring, refinancing,
extending, or unifying the whole or any part of outstanding
securities of the Issuer in an amount sufficient to provide funds
necessary to effectuate the purpose for which the refunding bonds
are being issued and to pay all costs associated therewith; and
WHEREAS, pursuant to the provisions of Sections 991 to 1001,
inclusive, of Title 39 of the Louisiana Revised Statutes of 1950,
as amended and an Indenture of Trust and Pledge dated as of May
1, 1984, as amended and supplemented by a Supplement No. 1 to
Indenture of Trust and Pledge dated as of August 1, 1984, by and
between the Issuer and City National Bank of Baton Rouge, a
national banking association duly organized and existing under
the laws of the United States of America, as trustee
(collectively, the "Prior Indenture"), the Issuer issued its
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) Series 1984A, Series 1984B, Series 1984C and Series
1984D (the "Prior Bonds") in the aggregate principal amount of
$102,000,000 for the purpose of providing funds to finance the
cost of acquiring a leasehold interest in Gulf States Utilities
Company's, a Texas corporation (the "Company"), undivided seventy
percent interest in certain water pollution control and sewage
disposal facilities at the River Bend Unit 1 nuclear power plant
in the Parish of West Feliciana, Louisiana; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to a Refunding
Agreement dated as of September 1, 1994 between the Issuer and
the Company (the "Refunding Agreement"), said refunding bonds to
be paid solely from the revenues derived by the Issuer from said
payments by the Company pursuant to the Refunding Agreement and
any moneys held hereunder, and said refunding bonds shall not
constitute an indebtedness or pledge of the general credit of the
Issuer or the State of Louisiana, within the meaning of any
constitutional or statutory limitation of indebtedness or
otherwise; and
WHEREAS, the execution and delivery of this Trust Indenture
and the issuance of said refunding bonds under this Trust
Indenture pursuant to the aforesaid statutory authority have been
in all respects duly and validly authorized by resolution adopted
by the governing authority of the Issuer; and
WHEREAS, the Issuer has authorized the issuance hereunder of
said refunding bonds, namely $102,000,000 aggregate principal
amount of its Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series 1994 (the "Bonds"), the
proceeds of which are to be used to refund the principal of the
Prior Bonds; and
WHEREAS, the Bonds bear interest, mature and are subject to
redemption as set forth in this Trust Indenture; and
WHEREAS, all things necessary to make the Bonds, when
authenticated by the Trustee and issued as in this Trust
Indenture provided, the valid, binding and legal obligations of
the Issuer according to the import thereof, and to constitute
this Trust Indenture a valid assignment and pledge of revenues to
the payment of the principal of and premium, if any, and interest
on the Bonds, in accordance with the provisions hereof, have or
will have been done and performed, and the creation, execution
and delivery of this Trust Indenture and the creation, execution
and issuance of the Bonds, subject to the terms hereof, have in
all respects been duly authorized;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises and the
acceptance by the Trustee of the trusts hereby created and of the
purchase and acceptance of the Bonds by the holders and owners
thereof, and the sum of One Dollar ($1.00), lawful money of the
United States of America, to it duly paid by the Trustee, at or
before the execution and delivery of these presents, and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, and in order to secure the payment of the
principal of and premium, if any, and interest on the Bonds
according to their tenor and effect and to secure the performance
and observance by the Issuer of all the covenants expressed or
implied herein and in the Bonds, subject to all of the provisions
hereof, does hereby grant, bargain, sell, convey, mortgage,
assign and pledge unto the Trustee, and unto its successor or
successors in trust, and to them and their assigns forever, for
the securing of the performance of the obligations of the Issuer
hereinafter set forth:
I
All the rights and interest of the Issuer in and to the
Refunding Agreement (except for the rights of the Issuer under
Sections 4.5, 4.6, 4.7 and 8.5 of the Refunding Agreement and any
rights of the Issuer to receive notices, certificates, requests,
requisitions, directions and other communications under the
Refunding Agreement); and all Revenues (as hereinafter defined)
and the proceeds of all thereof.
II
All the rights and interest of the Issuer in and to the Bond
Fund (as hereinafter defined), and all moneys and investments
therein, but subject to the provisions of this Trust Indenture
pertaining thereto, including those pertaining to the making of
disbursements therefrom.
III
All moneys, securities and obligations from time to time
held by the Trustee under the terms of this Trust Indenture and
any and all real and personal property of every kind and nature
from time to time hereafter by delivery or by writing of any kind
conveyed, mortgaged, pledged, assigned or transferred, as and for
additional security hereunder by the Issuer or by anyone in its
behalf or with its written consent to the Trustee, which is
hereby authorized to receive any and all such property at any and
all times and to hold and apply the same subject to the terms
hereof; except for moneys, securities or obligations deposited
with or paid to the Trustee for redemption or payment of Bonds
which are deemed to have been paid in accordance with Article IX
hereof and funds held pursuant to Section 6.5 hereof, which shall
be held by the Trustee in accordance with the provisions of said
Article IX or Section 6.5, as the case may be.
TO HAVE AND TO HOLD all of the same with all privileges and
appurtenances hereby conveyed and assigned, or agreed or intended
so to be, to the Trustee and its successors in said trusts and to
them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set
forth for the equal and proportionate benefit and security of all
owners of the Bonds issued under and secured by this Trust
Indenture without preference, priority or distinction as to the
lien of any Bonds over any other Bonds, except insofar as any
sinking, amortization or other fund, or any terms or conditions
of redemption or purchase, established under this Trust Indenture
may afford additional benefit or security for the Bonds.
PROVIDED, HOWEVER, that if the Issuer shall pay or cause to
be paid to the owners of the Bonds the principal of and premium,
if any, and interest to become due thereon at the times and in
the manner stipulated therein, and if the Issuer shall keep,
perform and observe all and singular the covenants and promises
in the Bonds and in this Trust Indenture expressed as to be kept,
performed and observed by it, all as provided in and subject to
the provisions of Article IX hereof, then and in that case these
presents and the estate and rights hereby granted, except as
otherwise provided in Article IX, shall cease, terminate and be
void, and thereupon the Trustee shall cancel and discharge the
lien of this Trust Indenture and execute and deliver to the
Issuer such instruments in writing as shall be requisite to
evidence the discharge hereof pursuant to the provisions of said
Article IX; otherwise this Trust Indenture to be and remain in
full force and effect.
THIS TRUST INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be
issued, authenticated and delivered, and the Trust Estate (as
hereinafter defined) and the other estate and rights hereby
granted, are to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes as hereinafter expressed,
and the Issuer has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective owners,
from time to time, of the Bonds, as follows:
<PAGE>
I
DEFINITIONS
.1. Definitions. In addition to the words and terms
elsewhere defined in this Indenture, the following words and
terms as used in this Indenture shall have the following
meanings:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to the Refunding
Agreement, this Indenture and any transaction or event
contemplated by the Refunding Agreement or this Indenture
including the compensation and reimbursement of expenses and
advances payable to the Trustee, any paying agent, any co-paying
agent, and the registrar under the Indenture.
"Authorized Company Representative" means the person or
persons at the time designated to act on behalf of the Company,
such designation in each case, to be evidenced by a certificate
furnished to the Issuer and the Trustee containing the specimen
signature of such person or persons and signed on behalf of the
Company by its President, any Vice President, or its Treasurer.
"Bond Counsel" means any firm of nationally recognized
municipal bond counsel selected by the Company and acceptable to
the Issuer and the Trustee.
"Bond Fund" means the fund by that name created and
established in Section 6.1 of this Indenture.
"Bond Registrar" means the registrar of Bonds named herein.
"Bonds" means the $102,000,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 authorized to be issued under this
Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a corporation
organized and existing under the laws of the State of Texas, and
its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926 made to The Chase National Bank in
the City of New York (now The Chase Manhattan Bank), as trustee,
and Chemical Bank, as successor trustee, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustee" means the successor trustee under
the Company Mortgage.
"Event of Default" means any event of default specified in
Section 10.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities at the River Bend Unit 1 nuclear power plant in the
Parish of West Feliciana, Louisiana, financed in part with the
proceeds of the Prior Bonds.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"holder" or "bondholder" or "owner of the Bonds" or
"Bondholder" means the registered owner of any Bond.
"Indenture" means this Trust Indenture and all amendments
and supplements hereto.
"Issuer" means the Parish of West Feliciana, State of
Louisiana, a political subdivision under the Constitution and
laws of the State of Louisiana.
"outstanding", when used with reference to the Bonds, means,
as of any particular date, all Bonds authenticated and delivered
under this Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee at or prior to such
date for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of this Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to this Indenture; and
(d) Bonds registered in the name of the Issuer.
"Paying Agent" means any bank or trust company designated
pursuant to this Indenture as the place at which the principal of
and premium, if any, and interest on the Bonds are payable, and
any successor designated pursuant to this Indenture. The Trustee
is the original Paying Agent.
"person" means natural persons, firms, associations,
corporations and public bodies.
"Plant" means the River Bend Unit 1 nuclear power plant
located in the Parish of West Feliciana, Louisiana.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (Gulf States Utilities Company Project) Series 1984A,
Series 1984B, Series 1984C and Series 1984D issued and
outstanding in the aggregate principal amount of $102,000,000.
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of May 1, 1984, as amended and supplemented by
Supplement No. 1 to the Indenture of Trust and Pledge dated as of
August 1, 1984, by and between the Issuer and the Prior Trustee.
"Prior Trustee" means City National Bank of Baton Rouge,
Louisiana, and its successors and assigns.
"Record Date" means the fifteenth day of the calendar month
next preceding any interest payment date.
"Refunding Agreement" means the Refunding Agreement dated as
of December 1, 1994 between the Issuer and the Company, and any
amendments and supplements thereto.
"Refunding Fund" means the fund established pursuant to
Section 3.1 hereof.
"Revenues" means all amounts paid or payable by the Company
pursuant to Section 4.2 of the Refunding Agreement, and all
receipts of the Trustee credited under the provisions of this
Indenture against such payments.
"Trustee" means the banking corporation or association
designated as Trustee herein, and its successor or successors as
such Trustee. The original Trustee is First National Bank of
Commerce, in the City of New Orleans, Louisiana.
"Trust Estate" means the property conveyed to the Trustee
pursuant to the Granting Clauses hereof.
.2. Use of Words. Words of the masculine gender shall
be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise
indicate, the words "Bond", "owner", "holder" and "person" shall
include the plural, as well as the singular, number.
<PAGE>
II
THE BONDS
.1. Authorized Form and Amount of Bonds. No Bonds may
be issued under the provisions of this Indenture except in
accordance with this Article. All Bonds issued hereunder shall
be in the form of registered bonds without coupons. The total
principal amount of Bonds that may be issued is hereby expressly
limited to $102,000,000, except as provided in Section 2.8
hereof.
.2. Details of Bonds. The Bonds (i) shall be
designated "Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994", (ii) shall be issued in
denominations of $5,000 and any integral multiple thereof, (iii)
shall be numbered consecutively from R-1 upwards in order of
issuance according to the records of the Trustee, (iv) shall be
dated as hereinafter provided, (v) shall bear interest as
hereinafter provided, payable semiannually on June 1 and December
1 of each year, commencing June 1, 1995, and (iv) shall mature on
December 1, 2024.
The Bonds shall bear interest from and including the date
thereof until the principal thereof shall be duly paid or
provision for payment has been made in accordance with Article XI
hereof, whether at maturity, upon redemption or otherwise, at the
rate of 8% per annum. Overdue installments of interest shall not
bear interest.
Bonds issued before June 1, 1995 shall be dated December 1,
1994, and Bonds issued on or subsequent to June 1, 1995 shall be
dated as of the interest payment date next preceding the date of
authentication and delivery thereof by the Trustee, unless such
date of authentication and delivery shall be an interest payment
date, in which case they shall be dated as of such date of
authentication and delivery; provided, however, that if, as shown
by the records of the Trustee, interest on any Bonds surrendered
for transfer or exchange shall be in default, the Bonds issued in
exchange for Bonds surrendered for transfer or exchange shall be
dated as of the date to which interest has been paid in full on
the Bonds surrendered.
The Bonds shall be substantially in the form set forth in
Exhibit A attached hereto with such appropriate variations,
omissions and insertions as are permitted or required by this
Indenture.
.3. Payment. The principal of and premium, if any, on
the Bonds shall be paid upon the presentation and surrender of
said Bonds at the principal corporate trust office of the
Trustee. The interest on the Bonds shall be payable by check
drawn upon the Trustee and mailed to the registered owners as of
the close of business on the Record Date with respect to the
interest payment date at their respective addresses as such
appear on the bond registration books kept by the Trustee. All
payments shall be made in lawful money of the United States of
America.
.4. Execution. The Bonds shall be executed on behalf
of the Issuer by the President and the Secretary of the governing
authority of the Issuer (by their manual or facsimile signatures)
and shall have impressed or imprinted thereon the seal of the
Issuer. A facsimile signature shall have the same force and
effect as if personally signed. In case any officer whose
signature or facsimile of whose signature shall appear on the
Bonds shall cease to be such officer before the delivery of such
Bonds, such signature or such facsimile shall nevertheless be
valid and sufficient for all purposes, the same as if he had
remained in office until delivery.
.5. Limited Obligation. The Bonds, together with
interest thereon, shall be payable from the Bond Fund, as
hereinafter set forth, and shall be a valid claim of the holders
thereof only against the Bond Fund and the Revenues pledged to
the Bonds, which Revenues are hereby pledged and assigned for the
equal and ratable payment of the Bonds (principal, premium, if
any, and interest) and shall be used for no other purpose than to
pay the principal of and premium, if any, and interest on the
Bonds, except as may be otherwise expressly authorized in this
Indenture. The Bonds (including premium, if any) and interest
thereon shall not constitute an indebtedness or pledge of the
general credit of the Issuer within the meaning of any Louisiana
constitutional or statutory provision and shall not constitute an
obligation of or a charge against the taxing powers of the
Issuer.
.6. Authentication. Only such Bonds as shall have
endorsed thereon a Certificate of Authentication substantially in
the form set forth in Exhibit A attached hereto duly executed by
the Trustee shall be entitled to any right or benefit under this
Indenture. No Bond shall be valid and obligatory for any purpose
unless and until such Certificate of Authentication shall have
been duly executed by the Trustee, and such Certificate of the
Trustee upon any such Bond shall be conclusive evidence that such
Bond has been authenticated and delivered under this Indenture.
The Trustee's Certificate of Authentication on any Bond shall be
deemed to have been executed if signed by an authorized officer
of the Trustee, but it shall not be necessary that the same
officer sign the Certificate of Authentication on all of the
Bonds issued hereunder.
.7. Delivery of the Bonds. The Issuer shall execute
and deliver to the Trustee and the Trustee shall authenticate the
Bonds and deliver said Bonds to the original purchaser or
purchasers thereof as may be directed hereinafter in this Section
or in Section 2.11 hereof.
Prior to the delivery on original issuance by the Trustee of
any authenticated Bonds, there shall be or have been delivered to
the Trustee:
(a) An original duly executed counterpart or a duly
certified copy of this Indenture and any supplemental
indenture thereto;
(b) An original duly executed counterpart or a duly
certified copy of the Refunding Agreement;
(c) A written order to the Trustee by the Issuer to
authenticate and deliver the Bonds to the original
purchasers thereof upon payment to Trustee, but for the
account of the Issuer, of a sum specified in such order; and
(d) A copy, duly certified by the Secretary of the
governing authority of the Issuer, of the proceedings of the
governing body of the Issuer authorizing the issuance of the
Bonds.
.8. Mutilated, Destroyed or Lost Bonds. In case any
Bond issued hereunder shall become mutilated or be destroyed or
lost, the Issuer shall, if not then prohibited by law, cause to
be executed and the Trustee shall authenticate and deliver a new
Bond of like date, number and tenor in exchange and substitution
for and upon cancellation of such mutilated Bond, or in lieu of
and in substitution for such Bond destroyed or lost, upon the
holder's paying the reasonable expenses and charges of the
Issuer, the Company and the Trustee in connection therewith, and,
in the case of a Bond destroyed or lost, his filing with the
Trustee evidence satisfactory to the Company and the Trustee that
such Bond was destroyed or lost, and of his ownership thereof,
and furnishing the Issuer, the Company and the Trustee with
indemnity satisfactory to them. The Trustee is hereby authorized
to authenticate any such new Bond. In the event any lost or
destroyed Bonds shall have matured or been called for redemption,
instead of issuing a new Bond, the Issuer may pay the same
without the surrender thereof.
.9. Registration and Exchange of Bonds. The Issuer
hereby constitutes and appoints the Trustee as Bond Registrar of
the Issuer, and as Bond Registrar the Trustee shall keep books
for the registration and for the transfer of the Bonds as
provided in this Indenture at the principal corporate trust
office of the Trustee. The person in whose name any Bond shall
be registered shall be deemed and regarded as the absolute owner
thereof for all purposes, and payment of or on account of the
principal of and interest on any such Bond shall be made only to
or upon the order of the registered owner thereof or his legal
representative, and neither the Issuer, the Company, the Trustee,
nor the Bond Registrar shall be affected by any notice to the
contrary but such registration may be changed as herein provided.
All payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond to the extent of the sum
or sums so paid.
Bonds may be transferred on the books of registration kept
by the Trustee by the registered owner in person or by his duly
authorized attorney, upon surrender thereof together with a
written instrument of transfer duly executed by the registered
owner or his duly authorized attorney in such form as shall be
satisfactory to the Trustee. Upon surrender for transfer of any
Bond at the principal corporate office of the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in
the name of the transferee or transferees a new Bond or Bonds in
the same aggregate principal amount and of any authorized
denomination or denominations.
Bonds may be exchanged at the principal corporate trust
office of the Trustee for an equal aggregate principal amount of
Bonds of any other authorized denomination or denominations. The
Issuer shall execute and the Trustee shall authenticate and
deliver Bonds which the bondholder making the exchange is
entitled to receive, bearing numbers not then outstanding. The
execution by the Issuer of any Bond of any authorized
denomination shall constitute full and due authorization of such
denomination and the Trustee shall thereby be authorized to
authenticate and deliver such Bond.
Such transfers of registration or exchanges of Bonds shall
be without charge to the holders of such Bonds, but any taxes or
other governmental charges required to be paid with respect to
the same shall be paid by the holder of the Bond requesting such
transfer or exchange as a condition precedent to the exercise of
such privilege.
The Trustee shall not be required to transfer or exchange
any Bond after the mailing of notice calling such Bond for
redemption has been made, nor during the period of fifteen (15)
days next preceding mailing of a notice of redemption of any
Bonds.
At reasonable times and under reasonable regulations
established by the Trustee, the list of registered owners of the
Bonds may be inspected and copied by the Company or by holders or
owners (or a designated representative thereof) of 10% or more in
principal amount of Bonds then outstanding, such possession or
ownership and the authority of such designated representative to
be evidenced to the satisfaction of the Trustee.
.10. Cremation and Other Dispositions. All Bonds
surrendered for the purpose of payment or retirement, or for
exchange, or for replacement or payment as provided above, or for
cancellation, shall be canceled upon surrender thereof to the
Trustee and, at the option of the Trustee, either cremated,
shredded or otherwise disposed of. The Trustee shall execute and
forward to the Issuer and the Company an appropriate certificate
describing the Bonds involved and the manner of disposition.
.11. Temporary Bonds. Until Bonds in definitive form
are ready for delivery, the Issuer may execute, and upon the
request of the Issuer, the Trustee shall authenticate and
deliver, subject to the provisions, limitations and conditions
set forth herein, one or more Bonds in temporary form, whether
printed, typewritten, lithographed or otherwise produced,
substantially in the form of the definitive Bonds, with
appropriate omissions, variations and insertions, and in
authorized denominations. Until exchanged for Bonds in
definitive form, such Bonds in temporary form shall be entitled
to the lien and benefit of this Indenture. Upon the presentation
and surrender of any Bond or Bonds in temporary form, the Issuer
shall, without unreasonable delay, prepare, execute and deliver
to the Trustee and the Trustee shall authenticate and deliver, in
exchange therefor, a Bond or Bonds in definitive form. Such
exchange shall be made by the Trustee without making any charge
therefor to the holder of such Bond in temporary form.
.12. Book-Entry Registration of Bonds. The Bonds shall
be initially issued in the name of Cede & Co., as nominee for
DTC, as registered owner of the Bonds, and held in the custody of
DTC. The Issuer and the Trustee acknowledge that they have
executed and delivered a Letter of Representations with DTC and
that the terms and provisions of said Letter of Representations
shall govern in the event of any inconsistency between the
provisions of this Indenture and said Letter of Representations.
A single bond certificate will be issued and delivered to DTC.
The beneficial owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as DTC shall
continue to serve as securities depository for the Bonds as
provided herein, all transfers of beneficial ownership interest
will be made by book-entry only, and no investor or other party
purchasing, selling or otherwise transferring beneficial
ownership of Bonds is to receive, hold or deliver any Bond
certificate.
For every transfer and exchange of the Bonds, the beneficial
owner may be charged a sum sufficient to cover such beneficial
owner's allocable share of any tax, fee or other governmental
charge that may be imposed in relation thereto.
The Issuer, the Company and the Trustee will recognize DTC
or its nominee as the Bondholder for all purposes, including
notices and voting.
Neither the Issuer, the Trustee nor the Company are
responsible for the performance by DTC of any of its obligations,
including, without limitation, the payment of moneys received by
DTC, the forwarding of notices received by DTC or the giving of
any consent or proxy in lieu of consent.
Whenever during the term of the Bonds the beneficial
ownership thereof is determined by a book entry at DTC, the
requirements of this Indenture of holding, delivering or
transferring Bonds shall be deemed modified to require the
appropriate person to meet the requirements of DTC as to
registering or transferring the book entry to produce the same
effect.
If at any time DTC ceases to hold the Bonds, all references
herein to DTC shall be of no further force or effect.
<PAGE>
III
REFUNDING FUND
.1. Creation of Refunding Fund. There is hereby
created and ordered to be established with the Trustee a trust
fund of and in the name of the Issuer to be designated "Parish of
West Feliciana Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series 1994 Refunding Fund".
.2. Deposit of Proceeds of Bonds. All of the proceeds
of the Bonds, exclusive of accrued interest, if any, shall be
deposited in the Refunding Fund. On the date of issuance of the
Bonds, the Trustee shall transfer to the Prior Trustee all such
moneys for deposit in the bond fund created under the Prior
Indenture for the purpose of, together with moneys of the Company
deposited therein, refunding the Prior Bonds on the Refunding
Date.
<PAGE>
IV
REDEMPTION OF BONDS BEFORE MATURITY
.1. Redemption. The Bonds shall be subject to
redemption prior to maturity as follows:
(a) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, at any time, in
whole but not in part, at a redemption price equal to the
principal amount being redeemed plus accrued interest to the
redemption date, if:
(i) the Company shall have determined that the continued
operation of the Plant is impracticable, uneconomical or
undesirable for any reason;
(ii) the Company shall have determined that the continued
operation of the Facilities is impracticable, uneconomical or
undesirable due to (A) the imposition of taxes, other than ad
valorem taxes currently levied upon privately owned property used
for the same general purpose as the Facilities, or other
liabilities or burdens with respect to the Facilities or the
operation thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic availability
of materials, supplies, equipment or labor or (C) destruction of
or damage to all or part of the Facilities;
(iii) all or substantially all of the Facilities or the
Plant shall have been condemned or taken by eminent domain; or
(iv) the operation of the Facilities or the Plant shall have
been enjoined or shall have otherwise been prohibited by any
order, decree, rule or regulation of any court or of any federal,
state or local regulatory body, administrative agency or other
governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
December 1, 1999, in whole at any time or in part from time to
time, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued interest to the
redemption date:
Redemption Period Redemption Price
December 1, 1999 through November 30, 2000 102%
December 1, 2000 through November 30, 2001 101%
December 1, 2001 and thereafter 100%
The Bonds shall also be subject to optional redemption by the
Issuer, at the direction of the Company, at any time prior to
December 1, 1999, in whole but not in part, at a redemption price
equal to 102% of the principal amount being redeemed plus accrued
interest to the redemption date, if the Company shall have
consolidated with or merged with or into another corporation, or
sold or otherwise transferred all or substantially all of its
assets.
In case a Bond is of a denomination larger than $5,000, a
portion of such Bond ($5,000 or any integral multiple thereof)
may be redeemed if otherwise permitted, but Bonds shall be
redeemed only in the principal amount of $5,000 or any integral
multiple thereof.
.2. Notice. Notice of any redemption, identifying the
Bonds or portions thereof being called and the date on which they
shall be presented for payment, shall be given by the Trustee by
first class mail, postage prepaid, to the registered owner of
each such Bond addressed to such registered owner at his
registered address and placed in the mails not less than thirty
(30) days nor more than sixty (60) days prior to the date fixed
for redemption; provided, however, that failure to give such
notice by mailing, or any defect therein, shall not affect the
validity of any proceeding for the redemption of any Bond with
respect to which no such failure or defect has occurred.
Any notice mailed as provided in this Section shall be
conclusively presumed to have been duly given, whether or not the
holder or owner receives the notice.
With respect to notice of redemption of the Bonds at the
option of the Issuer (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if any,
and interest on the Bonds to be redeemed shall have been received
by the Trustee prior to the giving of such notice, such notice
may state that said redemption shall be conditional upon the
receipt of such moneys by the Trustee on or prior to the date
fixed for such redemption. If such moneys shall not have been so
received, any such conditional notice shall be of no force and
effect, the Issuer shall not redeem such Bonds and the Trustee
shall give notice, in the manner in which the notice of
redemption was given, that such moneys were not so received.
.3. Redemption Payments. Subject to the provisions of
the last paragraph of Section 4.2 hereof, on or prior to the date
fixed for redemption, funds shall be deposited with the Trustee
to pay, and the Trustee is hereby authorized and directed to
apply such funds to the payment of, the Bonds or portions thereof
to be redeemed, together with accrued interest thereon to the
redemption date and any required premium. Upon the giving of
notice and the deposit of funds for redemption, interest on the
Bonds or portions thereof thus redeemed shall no longer accrue
after the date fixed for redemption.
.4. Cancellation. All Bonds which have been redeemed
shall not be reissued but shall be canceled and disposed of by
the Trustee in accordance with Section 2.10 hereof.
.5. Partial Redemption of Bonds. In the event of a
partial redemption of Bonds, the Bonds to be redeemed shall be
selected by lot or in such other manner as may be determined by
the Trustee to be fair and equitable. Upon surrender of any Bond
for redemption in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the holder thereof a
new Bond or Bonds, of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Bond
surrendered.
<PAGE>
V
GENERAL COVENANTS
.1. Payment of Principal, Premium, If Any, and
Interest. The Issuer covenants that it will promptly pay or
cause to be paid the principal of and premium, if any, and
interest on every Bond issued under this Indenture at the place,
on the dates and in the manner provided herein and in the Bond
according to the true intent and meaning thereof; provided,
however, that the obligation of the Issuer hereunder to make or
cause to be made any payment to the Trustee in respect of the
principal of or premium, if any, or interest on the Bonds shall
be reduced by the amount of moneys, if any, on deposit in the
Bond Fund and available to be applied by the Trustee toward the
payment of the principal of or premium, if any, or interest on
the Bonds. The principal and premium, if any, and interest
(except interest paid from the proceeds from the sale of the
Bonds, if any) are payable solely from the Trust Estate,
including the Revenues, which Revenues are hereby specifically
pledged and assigned for the payment thereof in the manner and to
the extent herein specified, and nothing in the Bonds or this
Indenture should be considered as assigning or pledging any funds
or assets of the Issuer other than the Revenues and the right,
title and interest of the Issuer in the Refunding Agreement
(except for the rights of the Issuer under Sections 4.5, 4.6, 4.7
and 8.5 of the Refunding Agreement and any rights of the Issuer
to receive notices, certificates, requests, requisitions,
directions and other communications under the Refunding
Agreement) in the manner and to the extent herein specified.
Anything in this Indenture to the contrary notwithstanding, it is
understood that whenever the Issuer makes any covenant involving
financial commitments, including, without limitation, those in
the various sections of this Article, it pledges no funds or
assets other than the Trust Estate in the manner and to the
extent herein specified, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds or assets.
.2. Performance of Covenants. The Issuer covenants
that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in
this Indenture, in any and every Bond executed, authenticated,
issued and delivered hereunder and in all ordinances pertaining
thereto. The Issuer covenants that it is duly authorized under
the Constitution and laws of the State of Louisiana, including
particularly and without limitation the Act, to issue Bonds
authorized hereby and to execute this Indenture and to make the
pledge and covenants in the manner and to the extent herein set
forth; that all action on its part for the issuance of the Bonds
and the execution and delivery of this Indenture has been duly
and effectively taken; and that the Bonds in the hands of the
holders and owners thereof are and will be valid and enforceable
obligations of the Issuer according to the import thereof.
.3. Instruments of Further Assurance. The Issuer
covenants that it will do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged and delivered, such
indenture or indentures supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably
require for the better assuring, transferring, pledging,
assigning and confirming unto the Trustee the Trust Estate.
.4. Recordation and Other Instruments. The Issuer and
the Trustee covenant that they will cooperate with the Company in
causing this Indenture, the Refunding Agreement, such security
agreements, financing statements and all supplements thereto and
other instruments as may be required from time to time to be
kept, to be recorded and filed in such manner and in such places
as may be required by law in order to fully preserve and protect
the security of the holders and owners of the Bonds and the
rights of the Trustee hereunder, and to perfect the security
interest created by this Indenture.
.5. Inspection of Project Books. The Issuer and the
Trustee covenant and agree that all books and documents in their
possession relating to the Facilities and the revenues derived
from the Facilities shall be open to inspection at all reasonable
times by such accountants or other agencies as the other party
may from time to time designate and by the Company.
.6. Rights Under Refunding Agreement. The Refunding
Agreement, a duly executed counterpart of which has been filed
with the Trustee, sets forth covenants and obligations of the
Issuer and the Company, including provisions that subsequent to
the issuance of Bonds and prior to their payment in full or
provision for payment thereof in accordance with the provisions
of the Refunding Agreement may not be effectively amended,
changed, modified, altered or terminated, or any provision waived
without the written consent of the Trustee, and reference is
hereby made to the same for a detailed statement of said
covenants and obligations of the Company thereunder, and the
Issuer agrees that the Trustee in its name or in the name of the
Issuer may enforce all rights of the Issuer and all obligations
of the Company under and pursuant to the Refunding Agreement, for
and on behalf of the bondholders, whether or not the Issuer is in
default hereunder.
.7. Prohibited Activities. The Issuer and the Trustee
covenant that neither of them shall take any action or suffer or
permit any action to be taken or condition to exist which causes
or may cause the interest payable on the Bonds to be includable
in gross income for purposes of federal income taxation. Without
limiting the generality of the foregoing, the Issuer and the
Trustee covenant that (a) the proceeds of the sale of the Bonds,
the earnings thereon, and any other moneys on deposit in any fund
or account maintained in respect of the Bonds (whether such
moneys were derived from the proceeds of the sale of the Bonds or
from other sources) will not be used in a manner which would
cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Code, and (b) all action with
respect to the Bonds required by Section 148(f) of the Code shall
be taken in a timely manner.
<PAGE>
VI
REVENUES AND FUNDS
.1. Creation of Bond Fund. There is hereby created and
ordered to be established with the Trustee a trust fund of and in
the name of the Issuer to be designated "Parish of West Feliciana
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 Bond Fund".
.2. Payments Into Bond Fund. There shall be deposited
into the Bond Fund as and when received:
(a) All accrued interest received at the time of the
issuance and delivery of the Bonds;
(b) All Revenues; and
(c) Any other moneys received by the Trustee under and
pursuant to any of the provisions of the Refunding Agreement
or this Indenture which are directed to be paid into the
Bond Fund.
.3. Use of Moneys in Bond Fund. Except as otherwise
provided in Sections 6.8 and 11.2 hereof, moneys in the Bond Fund
shall be used solely for the payment of the principal of and
premium, if any, and interest on the Bonds and for the redemption
or purchase of Bonds.
.4. Withdrawals from Bond Fund. The Bond Fund shall be
in the name of the Issuer, designated as set forth in Section
6.1, and the Issuer hereby irrevocably authorizes and directs the
Trustee to withdraw from the Bond Fund sufficient funds to pay
the principal of and premium, if any, and interest on the Bonds
at maturity and redemption prior to maturity and to use such
funds for the purpose of paying principal, premium, if any, and
interest in accordance with the provisions hereof pertaining to
payment, which authorization and direction the Trustee hereby
accepts.
.5. Non-Presentment of Bonds. In the event any Bond
shall not be presented for payment when the principal thereof
becomes due, either at maturity or otherwise, or at the date
fixed for redemption thereof, if there shall have been deposited
with the Trustee for that purpose, or left in trust if previously
so deposited, funds sufficient to pay the principal thereof, and
premium, if any, together with all interest unpaid and due
thereon, to the due date thereof, for the benefit of the holder
thereof, all liability of the Issuer to the holder thereof for
the payment of the principal thereof, premium, if any, and
interest thereon, shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the
Trustee to hold such fund or funds, without liability for
interest thereon, for the benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such fund or funds
for any claim of whatever nature on his part under this Indenture
or on, or with respect to, the Bond.
.6. Administration Expenses. It is understood and
agreed that pursuant to the provisions of Section 4.5 of the
Refunding Agreement, the Company agrees to pay the Administration
Expenses of the Issuer. All such payments under the Refunding
Agreement which are received by the Trustee shall not be paid
into the Bond Fund, but shall be segregated by the Trustee and
expended solely for the purpose for which such payments are
received.
.7. Moneys to be Held in Trust. All moneys required to
be deposited with or paid to the Trustee for deposit into the
Bond Fund under any provision of this Indenture and all moneys
withdrawn from the Bond Fund and held by any Paying Agent, shall
be held by the Trustee or such Paying Agent in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of which redemption has been duly
given, and for moneys deposited with or paid to the Trustee
pursuant to Article IX hereof, shall, while held by the Trustee
or any Paying Agent, constitute part of the Trust Estate and be
subject to the lien hereof. Any moneys received by or paid to
the Trustee pursuant to any provision of the Refunding Agreement
calling for the Trustee to hold, administer and disburse the same
in accordance with the specific provisions of the Refunding
Agreement shall be held, administered and disbursed pursuant to
such provisions and, where required by the provisions of the
Refunding Agreement the Trustee shall set the same aside in a
separate account. The Issuer agrees that if it shall receive any
moneys pursuant to applicable provisions of the Refunding
Agreement (other than Sections 4.5, 4.6, 4.7 and 8.5 thereof), it
will pay the same over to the Trustee forthwith upon receipt
thereof to be held, administered and disbursed by the Trustee in
accordance with the provisions of the Refunding Agreement
pursuant to which the Issuer may have received the same.
.8. Refund to Company of Excess Payments. Anything
herein to the contrary notwithstanding, the Trustee is authorized
and directed to refund to the Company all excess amounts held in
the Bond Fund upon expiration or termination of the Refunding
Agreement.
<PAGE>
VII
SECURITY FOR AND INVESTMENTS
.1. Investment of Moneys. (a) Moneys held for the
credit of the Bond Fund shall, upon direction by the Authorized
Company Representative, be invested and reinvested by the Trustee
in any one or more of the following obligations or securities on
which neither the Company nor any of its subsidiaries is the
obligor: (i) Government Securities; (ii) interest bearing deposit
accounts (which may be represented by certificates of deposit) in
national or state banks (which may include the Trustee, any
Paying Agent, and the Bond Registrar) having a combined capital
and surplus of not less than $10,000,000, or savings and loan
associations having total assets of not less than $40,000,000;
(iii) bankers' acceptances drawn on and accepted by commercial
banks (which may include the Trustee, any Paying Agent, and the
Bond Registrar) having a combined capital and surplus of not less
than $10,000,000; (iv) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed
by, any State of the United States of America, the District of
Columbia or the Commonwealth of Puerto Rico, or any political
subdivision of any of the foregoing, which are rated in any of
the three highest rating categories by a nationally recognized
rating agency; (v) obligations of any agency or instrumentality
of the United States of America; (vi) commercial or finance
company paper which is rated in any of the three highest rating
categories by a nationally recognized rating agency; (vii)
corporate debt securities rated in any of the three highest
rating categories by a nationally recognized rating agency; and
(viii) repurchase agreements with banking or financial
institutions having a combined capital and surplus of not less
than $10,000,000 (which may include the Trustee, any Paying
Agent, and the Bond Registrar) with respect to any of the
foregoing obligations or securities. As used above, the
reference to rating categories shall mean generic categories
which may include numerical or other qualifications of ratings
within each such generic rating category such as "+" or "-".
Such investments shall have maturity dates, or shall be subject
to redemption by the holder at the option of the holder, on or
prior to the dates the moneys invested therein will be needed as
reflected by a statement of the Authorized Company
Representative, which statement must be on file with the Trustee
prior to any investment.
(a) Obligations so purchased as an investment of moneys in
any fund or account shall be deemed at all times a part of such
fund or account. Any profit and income realized from such
investments shall be credited to such fund or account and any
loss shall be charged to such fund or account.
.2. Arbitrage Bond Covenant. With respect to the
authority to invest funds granted in this Indenture, the Issuer
and the Trustee hereby covenant with the holders of the Bonds
that, subject to the Company's direction of the investment of
funds, they will make no use of the proceeds of the Bonds, or any
other funds which may be deemed to be proceeds of the Bonds
pursuant to Section 148 of the Code, which would cause the Bonds
to be "arbitrage bonds" within the meaning of such Section.
The Company has agreed in the Refunding Agreement to comply
with rebate requirements of Section 148(f) of the Code. The
Trustee shall maintain such records and provide such information
as the Company may request to enable the Company to calculate the
amount of gross earnings on the Bond Fund and Refunding Fund and,
from time to time, the value of investments held therein.
.3. Balance in Funds After Payment of the Bonds. Any
balance in any of the funds created under this Indenture or
otherwise held by the Trustee after all the Bonds issued
hereunder and secured hereby have been paid in full, or provision
for payment in full thereof has been made, and all amounts due to
the Trustee and the Issuer have been paid, shall be paid over to
the Company. Should the holders of any Bonds fail or neglect to
present their Bonds for payment within one year from the date
such Bonds become due and payable, whether by redemption or at
maturity, the Trustee shall, at the end of such period, remit to
the Company in trust for the holders of the Bonds the money then
held for such Bonds; and the holders of such Bonds shall
thereafter have recourse only to the Company for payment thereof.
<PAGE>
VIII
RIGHTS OF THE COMPANY
.1. Rights of Company Under Refunding Agreement.
Nothing herein contained shall be deemed to impair the rights and
privileges of the Company set forth in the Refunding Agreement
and an Event of Default hereunder shall not constitute an "Event
of Default" under the Refunding Agreement unless by the terms of
the Refunding Agreement it constitutes an "Event of Default"
thereunder.
.2. Enforcement of Rights and Obligations. The Issuer
and the Trustee agree that the Company in its own name or in the
name of the Issuer may enforce all of the rights of the Issuer,
all obligations of the Trustee, and all of the Company's rights
provided for in this Indenture.
<PAGE>
IX
DISCHARGE OF LIEN
.1. Discharge of Lien. If the Issuer shall pay or
cause to be paid to the holders and owners of the Bonds the
principal of and premium, if any, and interest to become due
thereon at the times and in the manner stipulated therein, and if
the Issuer shall keep, perform and observe all and singular the
covenants and promises in the Bonds and in this Indenture
expressed as to be kept, performed and observed by it on its part
and shall pay or cause to be paid all other sums payable
hereunder by the Issuer, then these presents and the estate and
rights hereby granted shall cease, terminate and be void, and
thereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the Issuer such instruments
in writing as shall be requisite to satisfy the lien hereof, and
reconvey to the Issuer the estate hereby conveyed, and assign and
deliver to the Issuer any property at the time subject to the
lien of this Indenture which may then be in its possession,
except moneys or Government Securities held by it for the payment
of the principal of and premium, if any, and interest on the
Bonds.
Any Bond shall be deemed to be paid within the meaning of
this Article when payment of the principal of and premium, if
any, and interest on such Bond (whether at maturity or upon
redemption as provided in this Indenture, or otherwise), either
(a) shall have been made or caused to be made in accordance with
the terms thereof, or (b) shall have been provided for by
irrevocably depositing with the Trustee, in trust and irrevocably
set aside exclusively for such payment, (i) moneys sufficient to
make such payment or (ii) Government Securities (provided that in
either case the Trustee shall have received an opinion of Bond
Counsel to the effect that such deposit will not affect the
exclusion of the interest on any of the Bonds from gross income
for purposes of federal income taxation or cause any of the Bonds
to be treated as arbitrage bonds within the meaning of Section
148(a) of the Code) maturing as to principal and interest in such
amounts and at such times as will provide sufficient moneys to
make such payment when due, and all necessary and proper fees,
compensation and expenses of the Trustee and any Paying Agent
pertaining to the Bonds with respect to which such deposit is
made and all other liabilities of the Company under the Refunding
Agreement, pertaining to the Bonds with respect to which such
deposit is made, shall have been paid or the payment thereof
provided for to the satisfaction of the Trustee. No deposit
under (b) above shall constitute such discharge and satisfaction
until the Company shall have irrevocably notified the Trustee of
the date for payment of such Bond either at maturity or on a date
on which such Bond may be redeemed in accordance with the
provisions hereof and notice of such redemption shall have been
given or irrevocable provisions shall have been made for the
giving of such notice.
The Issuer or the Company may at any time surrender to the
Trustee for cancellation by it any Bonds previously authenticated
and delivered hereunder, which the Issuer or the Company may have
acquired in any manner whatsoever, and such Bonds, upon such
surrender and cancellation, shall be deemed to be paid and
retired.
<PAGE>
X
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
.1. Events of Default. Each of the following events
shall constitute and is referred to in this Indenture as an
"Event of Default":
(a) default in the due and punctual payment of any
interest on any Bond hereby secured and outstanding and the
continuance thereof for a period of sixty (60) days;
(b) default in the due and punctual payment of the
principal of and premium, if any, on any Bond hereby secured
and outstanding, whether at the stated maturity thereof, or
upon unconditional proceedings for redemption thereof, or
upon the maturity thereof by acceleration;
(c) default in the payment of any other amount required
to be paid under this Indenture or in the performance or
observance of any other of the covenants, agreements or
conditions contained in this Indenture, or in the Bonds
issued under this Indenture, and continuance thereof for a
period of ninety (90) days after written notice specifying
such failure and requesting that it be remedied, shall have
been given to the Issuer and the Company by the Trustee,
which may give such notice in its discretion and shall give
such notice at the written request of holders of not less
than 10% in aggregate principal amount of the Bonds then
outstanding, unless the Trustee, or the Trustee and holders
of an aggregate principal amount of Bonds not less than the
aggregate principal amount of Bonds the holders of which
requested such notice, as the case may be, shall agree in
writing to an extension of such period prior to its
expiration; provided, however, that the Trustee, or the
Trustee and the holders of such principal amount of Bonds,
as the case may be, shall be deemed to have agreed to an
extension of such period if corrective action is instituted
by the Issuer, or the Company on behalf of the Issuer,
within such period and is being diligently pursued.
The term "default" as used in clauses (a), (b) and (c) above
shall mean default by the Issuer in the performance or observance
of any of the covenants, agreements or conditions on its part
contained in this Indenture, or in the Bonds outstanding
hereunder, exclusive of any period of grace required to
constitute a default an "Event of Default" as hereinabove
provided.
.2. Acceleration. Upon the occurrence and continuance
of an Event of Default described in clause (a) or (b) of the
first paragraph of Section 10.1 hereof, the Trustee may, and upon
the request of the owners of 25% in principal amount of all Bonds
then outstanding shall, by notice in writing to the Issuer and
the Company, declare the principal of all Bonds then outstanding
to be immediately due and payable; and upon such declaration the
said principal, together with interest accrued thereon to the
date of acceleration, shall become due and payable immediately at
the place of payment provided therein, anything in the Indenture
or in the Bonds to the contrary notwithstanding. Upon the
occurrence of any acceleration hereunder, the Trustee shall
immediately declare all payments under the Refunding Agreement
pursuant to Section 4.2 thereof to be due and payable
immediately.
Upon the occurrence of any acceleration hereunder, the
Trustee shall notify by first class mail, postage prepaid, the
owners of all Bonds outstanding of the occurrence of such
acceleration.
If, after the principal of the Bonds has become due and
payable, all arrears of interest upon the Bonds are paid by the
Issuer, and the Issuer also performs all other things in respect
to which it may have been in default hereunder and pays the
reasonable charges of the Trustee and the Bondholders, including
reasonable and necessary attorneys' fees, then, and in every such
case, the owners of a majority in principal amount of the Bonds
then outstanding, by notice to the Issuer and to the Trustee, may
annul such acceleration and its consequences, and such annulment
shall be binding upon the Trustee and upon all owners of Bonds
issued hereunder. No such annulment shall extend to or affect
any subsequent default or impair any right or remedy consequent
thereon. The Trustee shall forward a copy of any notice from
Bondholders received by it pursuant to this paragraph to the
Company. Immediately upon such annulment, the Trustee shall
cancel, by notice to the Company, any demand for prepayment of
all amounts due under the Refunding Agreement made by the Trustee
pursuant to this Section. The Trustee shall promptly give
written notice of such annulment to the Issuer and the Company,
and, if notice of the acceleration of the Bonds shall have been
given to the Bondholders, the Trustee shall give notice of such
annulment to the Bondholders.
.3. Other Remedies; Rights of Bondholders. Upon the
occurrence and continuance of an Event of Default, the Trustee
may, in addition or as an alternative, pursue any available
remedy by suit at law or in equity to enforce the payment of the
principal of and premium, if any, and interest on the Bonds then
outstanding hereunder, then due and payable.
If an Event of Default shall have occurred, and if it shall
have been requested so to do by the holders of 25% in aggregate
principal amount of Bonds outstanding hereunder and shall have
been indemnified as provided in Section 11.1 hereof, the Trustee
shall be obligated to exercise such one or more of the rights and
powers conferred upon it by this Section as the Trustee, being
advised by counsel, shall deem most expedient in the interests of
the bondholders.
No remedy by the terms of this Indenture conferred upon or
reserved to the Trustee (or to the Bondholders) is intended to be
exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute.
No delay or omission to exercise any right or power accruing
upon any default or Event of Default shall impair any such right
or power or shall be construed to be a waiver of any such default
or Event of Default or acquiescence therein; and every such right
and power may be exercised from time to time and as often as may
be deemed expedient.
No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Bondholders, shall extend to or
shall affect any subsequent default or Event of Default or shall
impair any rights or remedies consequent thereon.
.4. Right of Bondholders to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, the
holders of a majority in aggregate principal amount of Bonds
outstanding hereunder shall have the right, at any time, by an
instrument or instruments in writing executed and delivered to
the Trustee, to direct the method and place of conducting all
proceedings to be taken in connection with the enforcement of the
terms and conditions of this Indenture, or for the appointment of
a receiver or any other proceeding hereunder; provided that such
direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture.
.5. Appointment of Receiver. Upon the occurrence and
continuance of an Event of Default, and upon the filing of a suit
or other commencement of judicial proceedings to enforce the
rights of the Trustee and of the Bondholders under this
Indenture, the Trustee shall be entitled, as a matter of right,
to the appointment of a receiver or receivers of the Trust Estate
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.
.6. Waiver. In case of an Event of Default on the part
of the Issuer, as aforesaid, to the extent that such rights may
then lawfully be waived, neither the Issuer nor anyone claiming
through it or under it shall or will set up, claim, or seek to
take advantage of any appraisement, valuation, stay, extension or
redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement of this Indenture, but the Issuer, for
itself and all who may claim through or under it, hereby waives,
to the extent that it lawfully may do so, the benefit of all such
laws and all right of appraisement and redemption to which it may
be entitled under the laws of the State of Louisiana.
.7. Application of Moneys. Available moneys remaining
after discharge of costs, charges and liens prior to this
Indenture shall be applied by the Trustee as follows:
(a) Unless the principal of all the Bonds shall have
become due and payable, all such moneys shall be applied:
First: To the payment to the persons entitled
thereto of all installments of interest then due, in
the order of the maturity of the installments of such
interest, and, if the amount available shall not be
sufficient to pay in full any particular installment,
then to the payment ratably, according to the amounts
due on such installment, to the persons entitled
thereto, without any discrimination or privilege;
Second: To the payment to the persons entitled
thereto of the unpaid principal of any of the Bonds
which shall have become due (other than Bonds called
for redemption for the payment of which moneys are
held pursuant to the provisions of this Indenture), in
the order of their due dates, with interest on such
Bonds from the respective dates upon which they become
due, and, if the amount available shall not be
sufficient to pay in full Bonds due on any particular
date, together with such interest, then to the payment
ratably, according to the amount of principal due on
such date, to the persons entitled thereto without any
discrimination or privilege of any Bond over any other
Bond and without preference or priority of principal
over interest or of interest over principal; and
Third: To the payment of the interest on and the
principal of the Bonds, and to the redemption of
Bonds, all in accordance with the provisions of
Article VI of this Indenture.
(b) If the principal of all the Bonds shall have become
due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid
upon the Bonds, without preference or priority of principal
over interest or of interest over principal, or of any Bond
over any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without discrimination or privilege.
(c) If the principal of all the Bonds shall have become
due and payable, and if acceleration of the maturity of the
Bonds by reason of an Event of Default shall thereafter have
been rescinded and annulled under the provisions of this
Article, then, subject to the provisions of paragraph (b) of
this Section in the event that the principal of all the
Bonds shall later become due and payable, the moneys shall
be applied in accordance with the provisions of paragraph
(a) of this Section.
Whenever moneys are to be applied by the Trustee pursuant to
the provisions of this Section, such moneys shall be applied at
such times, and from time to time, as it shall determine, having
due regard to the amount of such moneys available for application
and the likelihood of additional moneys becoming available for
such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an interest
payment date unless it shall deem another date more suitable)
upon which such application is to be made and upon such date
interest on the amounts of principal paid on such date shall
cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the deposit with it of any such moneys and of
the fixing of any such date and shall not be required to make
payment to the holder of any Bond until such Bond shall be
presented to the Trustee for appropriate endorsement or for
cancellation if fully paid.
.8. Remedies Vested in Trustee. All rights of action
(including the right to file proof of claim) under this Indenture
or under any of the Bonds may be enforced by the Trustee without
the possession of any of the Bonds or the production thereof in
any trial or other proceeding relating thereto and any such suit
or proceeding instituted by the Trustee shall be brought in its
name as Trustee, without the necessity of joining as plaintiffs
or defendants any holders of the Bonds hereby secured, and any
recovery of judgment shall be for the ratable benefit of the
holders of the outstanding Bonds.
.9. Rights and Remedies of Bondholders. No holder of
any Bond shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement of this
Indenture or for the execution of any trust hereof or for the
appointment of a receiver or any other remedy hereunder, unless a
default shall have occurred of which the Trustee shall have been
notified as provided in subsection (g) of Section 11.1, or of
which by said subsection it is deemed to have notice, nor unless
such default shall have become an Event of Default and the
holders of 25% in aggregate principal amount of Bonds outstanding
hereunder shall have made written request to the Trustee and
shall have offered it reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, nor unless also they
have offered to the Trustee indemnity as provided in Section
11.1, nor unless also the Trustee shall thereafter fail or refuse
to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its own name; and such
notification, request and offer of indemnity are hereby declared
in every such case at the option of the Trustee to be conditions
precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the
enforcement of this Indenture or for the appointment of a
receiver or for any other remedy hereunder; it being understood
and intended that no one or more holders of the Bonds shall have
any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by 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,
held and maintained in the manner herein provided for the equal
benefit of the holders of all Bonds outstanding hereunder.
Nothing in this Indenture contained shall affect or impair the
right of any Bondholder to enforce the payment of the principal
of and interest on any Bonds at and after the maturity thereof,
or the obligation of the Issuer to pay the principal of and
interest on each of the Bonds issued hereunder to the respective
holders thereof at the time and place in said Bonds expressed.
.10. Termination of Proceedings. In case the Trustee
shall have proceeded to enforce any right under this Indenture by
the appointment of a receiver 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 Issuer and the Trustee shall be restored to
their former positions and rights hereunder with respect to the
property herein conveyed, and all rights, remedies and powers of
the Trustee shall continue as if no such proceedings had been
taken, except to the extent the Trustee is legally bound by such
adverse determination.
<PAGE>
XI
THE TRUSTEE AND PAYING AGENTS
.1. Acceptance of Trusts. The Trustee hereby accepts
the trust imposed upon it by this Indenture, and agrees to
perform said trust (i) except during the continuance of an Event
of Default as an ordinarily prudent trustee under a corporate
mortgage, and (ii) during the continuance of an Event of Default,
with the same degree of care and skill in the exercise of its
rights hereunder as a prudent man would exercise or use under the
circumstances in the conduct of his affairs, but only upon and
subject to the following expressed terms and conditions:
(a) The Trustee may execute any of the trusts or powers
hereof and perform any duties required of it by or through
attorneys, agents, receivers or employees, and shall be
entitled to advice of counsel concerning all matters of
trusts hereof and its duties hereunder, and may in all cases
pay reasonable compensation to all such attorneys, agents,
receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable
care, or, if selected or retained by the Issuer prior to the
occurrence of a default of which the Trustee has been
notified as provided in subsection (g) of this Section 11.1,
or of which by said subsection the Trustee is deemed to have
notice, approved by the Trustee in the exercise of such
care. The Trustee shall not be responsible for any loss or
damage resulting from an action or non-action in accordance
with any such opinion or advice.
(b) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to the
certificate of the Trustee endorsed on such Bonds), or for
insuring the property herein conveyed or collecting any
insurance moneys, or for the validity of the execution by
the Issuer of this Indenture or of any supplemental
indenture or instrument of further assurance, or for the
sufficiency of the security for the Bonds issued hereunder
or intended to be secured hereby, or for the value of the
title of the property herein conveyed or otherwise as to the
maintenance of the security hereof; except that in the event
the Trustee enters into possession of a part or all of the
property herein conveyed pursuant to any provision of this
Indenture, it shall use due diligence in preserving such
property; and the Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any
covenants, conditions and agreements aforesaid as to the
condition of the property herein conveyed.
(c) The Trustee (not in its capacity as trustee) may
become the owner of Bonds secured hereby with the same
rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any
notice, request, consent, certificate, order, affidavit,
letter, telegram or other paper or document believed by it,
in the exercise of reasonable care, to be genuine and
correct and to have been signed or sent by the proper person
or persons. Any action taken by the Trustee pursuant to
this Indenture upon the request or authority or consent of
the owner of any Bond secured hereby, shall be conclusive
and binding upon all future owners of the same Bond and upon
Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or non-existence of any fact or
as to the sufficiency or validity of any instrument, paper
or proceeding, the Trustee shall be entitled to rely upon a
certificate of the Issuer signed by the President and
attested by the Secretary of the governing authority of the
Issuer, as sufficient evidence of the facts therein
contained and prior to the occurrence of a default of which
it has been notified as provided in subsection (g) of this
Section 11.1, or of which by that subsection it is deemed to
have notice, and shall also be at liberty to accept a
similar certificate to the effect that any particular
dealing, transaction or action is necessary or expedient,
but may at its discretion, at the reasonable expense of the
Issuer, in every case secure such further evidence as it may
think necessary or advisable but shall in no case be bound
to secure the same. The Trustee may accept a certificate of
the Secretary of the governing authority of the Issuer under
its seal to the effect that a resolution or ordinance in the
form therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution or ordinance has
been duly adopted, and is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a
duty of the Trustee.
(g) The Trustee shall not be required to take notice or
be deemed to have notice of any default hereunder (except a
default under clause (a) or (b) of the first paragraph of
Section 10.1 hereof concerning which the Trustee shall be
deemed to have notice) unless the Trustee shall be
specifically notified in writing of such default by the
Issuer or by the holders of at least 10% in aggregate
principal amount of Bonds outstanding hereunder, and all
notices or other instruments required by this Indenture to
be delivered to the Trustee must, in order to be effective,
be delivered to the office of the Trustee, and in the
absence of such notice so delivered, the Trustee may
conclusively assume there is no such default except as
aforesaid.
(h) The Trustee shall not be personally liable for any
debts contracted or for damages to persons or to personal
property injured or damaged, or for salaries or non-fulfill
ment of contracts during any period in which it may be in
the possession of or managing the real and tangible personal
property as in this Indenture provided.
(i) At any and all reasonable times the Trustee, and
its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully
to inspect any and all of the property herein conveyed,
including all books, papers and records of the Issuer
pertaining to the Facilities and the Bonds, and to take such
memoranda from and in regard thereto as may be desired,
provided, however, that nothing contained in this subsection
or in any other provision of this Indenture shall be
construed to entitle the above named persons to any
information or inspection involving the confidential
know-how or expertise or proprietary secrets of the Company.
(j) The Trustee shall not be required to give any bond
or surety in respect of the execution of the said trusts and
powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right, but
shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the
purview of this Indenture, any showings, certificates,
opinions, appraisals, or other information, or corporate
action or evidence thereof, in addition to that by the terms
hereof required as a condition of such action by the
Trustee, deemed desirable for the purpose of establishing
the right of the Issuer to the authentication of any Bonds,
the withdrawal of any cash, the release of any property, or
the taking of any other action by the Trustee. Before
taking such action hereunder, the Trustee may require that
it be furnished an indemnity bond satisfactory to it for the
reimbursement to it of all expenses to which it may be put
and to protect it against all liability, except liability
which is adjudicated to have resulted from the negligence or
willful default of the Trustee, by reason of any action so
taken by the Trustee.
.2. Fees, Charges and Expenses of Trustee and Paying
Agents. The Trustee and any Paying Agent shall be entitled to
payment and/or reimbursement for reasonable fees for services
rendered hereunder and all advances, counsel fees and other
expenses reasonably and necessarily made or incurred in and about
the execution of the trusts created by this Indenture. The
Issuer has made provisions in the Refunding Agreement for the
payment of such Administration Expenses and reference is hereby
made to the Refunding Agreement for the provisions so made. In
this regard, it is understood that the Issuer pledges no funds or
revenues other than those derived from and the avails of the
Trust Estate to the payment of any obligation of the Issuer set
forth in this Indenture, including the obligations set forth in
this Section 11.2, but nothing herein shall be construed as
prohibiting the Issuer from using any other funds and revenues
for the payment of any of its obligations under this Indenture.
Upon an Event of Default, but only upon an Event of Default, the
Trustee and the Paying Agents shall have a first lien with right
of payment prior to payment on account of principal or interest
of any Bond issued hereunder upon the Trust Estate for such
reasonable and necessary advances, fees, costs and expenses
incurred by them respectively.
.3. Notice to Bondholders of Default. The Trustee
shall be required to make demand upon and give notice to the
Company and each registered owner of Bonds then outstanding as
follows:
(a) If the Company shall fail to make any installment
payment under the Refunding Agreement on the day such
payment is due and payable, the Trustee shall give notice to
and make demand upon the Company on the next succeeding
business day.
(b) If a default occurs of which the Trustee is
pursuant to the provisions of Section 11.1(g) deemed to have
or is given notice, the Trustee shall promptly give notice
to the Company and to the Bondholders.
.4. Intervention by Trustee. In any judicial
proceeding to which the Issuer is a party and which in the
opinion of the Trustee and its counsel has a substantial bearing
on the interests of holders of Bonds issued hereunder, the
Trustee may intervene on behalf of Bondholders and shall do so if
requested in writing by the holders of at least 10% of the
aggregate principal amount of Bonds outstanding hereunder. The
rights and obligations of the Trustee under this Section 11.4 are
subject to the approval of the court having jurisdiction in the
premises.
.5. Merger or Consolidation of Trustee. Any bank or
trust company with which the Trustee may be merged, or with which
it may be consolidated, or to which it may sell or transfer its
trust business and assets as a whole or substantially as a whole,
or any bank or trust company resulting from any such sale,
merger, consolidation or transfer to which the Trustee is a
party, ipso facto, shall be and become successor trustee
hereunder and vested with all of the title to the whole property
or Trust Estate and all the trusts, powers, discretions,
immunities, privileges, and all other matters as was its
predecessor, without the execution or filing of any instrument or
any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such successor trustee shall be in good
standing and have capital and surplus of at least $10,000,000.
.6. Resignation by Trustee. The Trustee and any
successor trustee may at any time resign from the trusts hereby
created by giving thirty (30) days written notice to the Issuer
and to the Company, and such resignation shall take effect at the
end of such thirty (30) days, or upon the earlier appointment of
a successor trustee by the Bondholders or by the Issuer. Such
notice may be served personally or sent by registered mail.
.7. Removal of Trustee. The Trustee may be removed at
any time by an instrument or concurrent instruments in writing
delivered to the Trustee and to the Issuer, and signed by the
holders of a majority in aggregate principal amount of Bonds
outstanding hereunder.
.8. Appointment of Successor Trustee. In case the
Trustee hereunder shall resign or be removed, or be dissolved, or
shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be
taken under the control of any public officer or officers, or of
a receiver appointed by the court, a successor may be appointed
by the holders of a majority in aggregate principal amount of
Bonds outstanding hereunder, by an instrument or concurrent
instruments in writing signed by such holders, or by their
attorneys-in-fact, duly authorized; provided, nevertheless, that
in case of such vacancy the Issuer, subject to the approval of
the Company, by an instrument executed and signed by the
President and attested by the Secretary of the governing
authority of the Issuer under its seal, shall appoint a temporary
trustee to fill such vacancy until a successor trustee shall be
appointed by the Bondholders in the manner above provided; and
any such temporary trustee so appointed by the Issuer shall
immediately and without further act be superseded by the trustee
so appointed by such Bondholders. Every such temporary trustee
and every such successor trustee shall be a trust company or bank
in good standing, having capital and surplus of not less than
$10,000,000.
.9. Concerning Any Successor Trustee. Every successor
or temporary trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the Issuer
an instrument in writing accepting such appointment hereunder,
and thereupon such successor or temporary trustee, without any
further act or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Issuer or of its
successor trustee, execute and deliver an instrument transferring
to such successor all the estate, properties, rights, powers and
trusts of such predecessor hereunder; and every predecessor
trustee shall deliver all securities, moneys and any other
property held by it as trustee hereunder to its successor.
Should any instrument in writing from the Issuer be required by
any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby
vested or intended to be vested in the predecessor trustee, any
and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The
resignation of any trustee and the instrument or instruments
removing any trustee and appointing a successor hereunder,
together with all other instruments provided for in this Article
shall, at the expense of the Issuer, be forthwith filed and/or
recorded by the successor trustee in each recording office where
the Indenture shall have been filed and/or recorded.
.10. Reliance Upon Instruments. The resolutions,
opinions, certificates and other instruments provided for in this
Indenture may be accepted and relied upon by the Trustee as
conclusive evidence of the facts and conclusions stated therein
and shall be full warrant, protection and authority to the
Trustee for its actions taken hereunder.
.11. Appointment of Co-Trustee. The Issuer and the
Trustee shall have power to appoint and upon the request of the
Trustee the Issuer shall for such purpose join with the Trustee
in the execution of all instruments necessary or proper to
appoint another entity or one or more persons approved by the
Trustee, and satisfactory to the Company so long as there is no
termination of the interest of the Company by virtue of an Event
of Default or otherwise, either to act as co-trustee or
co-trustees jointly with the Trustee of all or any of the
property subject to the lien hereof, or to act as separate
trustee or co-trustee of all or any such property, with such
powers as may be provided in the instrument of appointment and to
vest in such corporation or person or persons as such separate
trustee or co-trustee any property, title, right or power deemed
necessary or desirable. In the event that the Issuer shall not
have joined in such appointment within fifteen (15) days after
the receipt by it of a request so to do, the Trustee alone shall
have the power to make such appointment. Should any deed,
conveyance or instrument in writing from the Issuer be required
by any separate trustee or co-trustee so appointed for more fully
and certainly vesting in and confirming to him or to it such
properties, rights, powers, trusts, duties and obligations, any
and all such deeds, conveyances and instruments in writing shall,
on request, be executed, acknowledged and delivered by the
Issuer. Every such co-trustee and separate trustee shall, to the
extent permitted by law, be appointed subject to the following
provisions and conditions, namely:
(1) The Bonds shall be authenticated and delivered, and
all powers, duties, obligations and rights conferred upon
the Trustee in respect of the custody of all money and
securities pledged or deposited hereunder shall be
exercised, solely by the Trustee; and
(2) The Trustee, at any time by an instrument in
writing, may remove any such separate trustee or co-trustee.
Every instrument, other than this Indenture, appointing any
such co-trustee or separate trustee, shall refer to this
Indenture and the conditions of this Article expressed, and upon
the acceptance in writing by such separate trustee or co-trustee,
he, they or it shall be vested with the estate or property
specified in such instrument, jointly with the Trustee (except
insofar as local law makes it necessary for any separate trustee
to act alone), subject to all the trusts, conditions and
provisions of this Indenture. Any such separate trustee or
co-trustee may at any time, by an instrument in writing,
constitute the Trustee as his, their or its agent or
attorney-in-fact with full power and authority, to the extent
authorized by law, to do all acts and things and exercise all
discretion authorized or permitted by him, them or it, for and on
behalf of him, them or it and in his, their or its name. In case
any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all the estate, properties, rights,
powers, trusts, duties and obligations of said separate trustee
or co-trustee shall vest in and be exercised by the Trustee until
the appointment of a new trustee or a successor to such separate
trustee or co-trustee.
.12. Designation and Succession of Paying Agents. Any
bank or trust company with which or into which any Paying Agent
may be merged or consolidated, or to which the assets and
business of such Paying Agent may be sold, shall be deemed the
successor of such Paying Agent for the purposes of this
Indenture. If the position of Paying Agent shall become vacant
for any reason, the Issuer shall, within thirty (30) days
thereafter, appoint such bank or trust company as shall be
specified by the Company as such Paying Agent to fill such
vacancy; provided, however, that, if the Issuer shall fail to
appoint such Paying Agent within said period, the Trustee shall
make such appointment.
The Paying Agents shall enjoy the same protective provisions
in the performance of their duties hereunder as are specified in
Section 11.1 hereof with respect to the Trustee insofar as such
provisions may be applicable.
.13. Several Capacities. Anything in this Indenture to
the contrary notwithstanding, the same entity may serve hereunder
as the Trustee, the Paying Agent, and the Bond Registrar and in
any other combination of such capacities, to the extent permitted
by law.
<PAGE>
XII
SUPPLEMENTAL INDENTURES
.1. Supplemental Indentures Without Bondholder Consent.
The Issuer and the Trustee may, from time to time and at any
time, without the consent of or notice to the Bondholders, enter
into supplemental indentures as follows:
(a) to cure any formal defect, omission, inconsistency
or ambiguity in this Indenture;
(b) to grant to or confer or impose upon the Trustee
for the benefit of the bondholders any additional rights,
remedies, powers, authority, security, liabilities or duties
which may lawfully be granted, conferred or imposed and
which are not contrary to or inconsistent with this
Indenture as theretofore in effect, provided that no such
additional liabilities or duties shall be imposed upon the
Trustee without its consent;
(c) to add to the covenants and agreements of, and
limitations and restrictions upon, the Issuer in this
Indenture other covenants, agreements, limitations and
restrictions to be observed by the Issuer which are not
contrary to or inconsistent with this Indenture as
theretofore in effect, provided that no such additional
liabilities or duties shall be imposed upon the Issuer
without its consent;
(d) to confirm, as further assurance, any pledge under,
and the subjection to any claim, lien or pledge created or
to be created by, this Indenture, of the Revenues of the
Issuer from the Refunding Agreement or of any other moneys,
securities or funds;
(e) to comply with the requirements of the Trust
Indenture Act of 1939, as from time to time amended;
(f) to provide for the registration and registration of
transfer of the Bonds through a book-entry or similar
method, whether or not the Bonds are evidenced by
certificates; or
(g) to modify, alter, amend or supplement this
Indenture in any other respect which is not materially
adverse to the Bondholders and which does not involve a
change described in clause (a), (b), (c), (d), (e) or (f) of
Section 12.2 hereof and which, in the judgment of the
Trustee, is not to the prejudice of the Trustee.
.2. Supplemental Indentures Requiring Bondholder
Consent. Subject to the terms and provisions contained in this
Section, and not otherwise, the holders of not less than a
majority in aggregate principal amount of the Bonds then
outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary and desirable by the Issuer for the
purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental indenture;
provided, however, that nothing herein contained shall permit, or
be construed as permitting, unless approved by the holders of all
Bonds then outstanding (a) an extension of the maturity (or
mandatory sinking fund or other mandatory redemption date) of the
principal of or the interest on any Bond issued hereunder, or (b)
a reduction in the principal amount of or redemption premium or
rate of interest on any Bond issued hereunder, or (c) the
creation of any lien ranking prior to or on a parity with the
lien of this Indenture on the Trust Estate or any part thereof,
except as hereinbefore expressly permitted, or (d) a privilege or
priority of any Bond or Bonds over any other Bond or Bonds, or
(e) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture, or (f)
depriving the holder of any Bond then outstanding of the lien
hereby created on the Trust Estate. Nothing herein contained,
however, shall be construed as making necessary the approval of
Bondholders of the execution of any supplemental indenture as
provided in Section 12.1 of this Article.
If at any time the Issuer shall request the Trustee to enter
into any supplemental indenture for any of the purposes of this
Section, the Trustee shall, at the expense of the Issuer, cause
notice of the proposed execution of such supplemental indenture
to be mailed by first class mail to each registered owner of the
Bonds. Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies
thereof are on file at the principal corporate trust office of
the Trustee for inspection by Bondholders. The Trustee shall
not, however, be subject to any liability to any Bondholder by
reason of its failure to mail such notice, and any such failure
shall not affect the validity of such supplemental indenture when
consented to and approved as provided in this Section. If the
holders of not less than a majority in aggregate principal amount
of the Bonds outstanding at the time of the execution of any such
supplemental indenture shall have consented to and approved the
execution thereof as herein provided, no holder of any Bond shall
have any right to object to any of the terms and provisions
contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or
from taking any action pursuant to the provisions thereof. Upon
the execution of any such supplemental indenture, this Indenture
shall be deemed to be modified and amended in accordance
therewith.
.3. Consent of Company. Anything herein to the
contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Company
shall have consented to the execution and delivery of such
supplemental indenture. In this regard, the Trustee shall cause
notice of the proposed execution and delivery of any such
supplemental indenture together with a copy of the proposed
supplemental indenture to be mailed by certified or registered
mail to the Company at least fifteen (15) days prior to the
proposed date of execution and delivery of any such supplemental
indenture. The Company shall be deemed to have consented to the
execution and delivery of any such supplemental indenture if the
Trustee receives a letter or other instrument signed by an
authorized officer of the Company expressing consent.
.4. Opinion of Bond Counsel. Anything herein to the
contrary notwithstanding, a supplemental indenture under this
Article shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such supplemental indenture will not affect the exclusion of
interest on the Bonds from gross income for purposes of federal
income taxation.
<PAGE>
XIII
AMENDMENT TO REFUNDING AGREEMENT
.1. Amendments With and Without the Consent of
Bondholders. The Trustee may from time to time, and at any time,
consent to any amendment, change or modification of the Refunding
Agreement for the purpose of curing any ambiguity or formal
defect or omission or making any other change therein which, in
the reasonable judgment of the Trustee, is not to the prejudice
of the Trustee or the holders of the Bonds. The Trustee shall
not consent to any other amendment, change or modification of the
Refunding Agreement without the approval or consent of the
holders of not less than a majority in aggregate principal amount
of the Bonds at the time outstanding, evidenced in the manner
provided in Section 14.1 hereof; provided the Trustee shall not,
without the unanimous consent of the holders of all Bonds then
outstanding, evidenced in the manner provided in Section 14.1
hereof, consent to any amendment which would change the
obligations of the Company under Section 4.2(a)(i), (ii) or (iii)
of the Refunding Agreement.
.2. Notice to Bondholders. If at any time the Issuer
or the Company shall request the Trustee's consent to a proposed
amendment, change or modification requiring Bondholder approval
under Section 13.1, the Trustee, shall, at the expense of the
requesting party, cause notice of such proposed amendment, change
or modification to the Refunding Agreement to be mailed in the
same manner as provided by Section 12.2 hereof with respect to
supplemental indentures. Such notice shall briefly set forth the
nature of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the same are
on file in the principal office of the Trustee for inspection by
any interested bondholder. The Trustee shall not, however, be
subject to any liability to any Bondholder by reason of its
failure to publish or mail such notice, and any such failure
shall not affect the validity of such amendment, change or
modification when consented to by the Trustee in the manner
herein provided.
.3. Opinion of Bond Counsel. Anything herein to the
contrary notwithstanding, any amendment to the Refunding
Agreement shall not become effective unless and until the Trustee
shall have received an opinion of Bond Counsel to the effect that
such amendment will not affect the exclusion of interest on the
Bonds from gross income for purposes of federal income taxation.
<PAGE>
XIV
MISCELLANEOUS
.1. Consents, etc. of Bondholders. Any request,
direction, objection, consent, or other instrument required by
this Indenture to be signed and executed by the Bondholders may
be in any number of concurrent writings of similar tenor and may
be signed or executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
request, direction, objection, consent, or other instrument or of
the writing appointing any such agent and of the ownership of
Bonds, if made in the following manner, shall be sufficient for
any of the purposes of this Indenture, and shall be conclusive in
favor of the Trustee with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by any person of
any such writing may be proved by the certificate of any
officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the person
signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such
execution.
(b) The fact of ownership of Bonds and the amount or
amounts, numbers and other identification of such Bonds, and
the date of holding the same shall be proved by the
registration books of the Issuer maintained by the Trustee
as Bond Registrar.
.2. Limitation of Rights. With the exception of rights
herein expressly conferred, nothing expressed or mentioned in or
to be implied from this Indenture, or the Bonds issued hereunder,
is intended or shall be construed to give to any person or
company other than the parties hereto, the Company, and the
holders of the Bonds secured by this Indenture any legal or
equitable rights, remedy or claim under or in respect to this
Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions
and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto, the Company, and the
holders of the Bonds hereby secured as herein provided.
.3. Severability. If any provisions of this Indenture
shall be held or deemed to be or shall, in fact, be inoperative
or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions or in all jurisdictions or in all
cases because it conflicts with any provisions of any
constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable
in any other case, circumstance or jurisdiction, or of rendering
any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses
or paragraphs in this Indenture contained shall not affect the
remaining portions of this Indenture or any part hereof.
.4. Notices. Except as otherwise provided in this
Indenture, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company, the Trustee and any Paying Agent. Notices,
certificates or other communications shall be sent to the
following addresses:
Company: Gulf States Utilities Company
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Parish of West Feliciana
The Police Jury House
9795 Royal Street
St. Francisville, LA 70775
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Corporate Trust Department
Any Paying
Agent other
than the
Trustee: At the address designated to the Issuer and the Trustee
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
.5. Applicable Provisions of Law. This Indenture shall
be considered to have been executed in the State of Louisiana and
it is the intention of the parties that the substantive law of
the State of Louisiana governs as to all questions of
interpretation, validity and effect.
.6. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument.
.7. Successors and Assigns. All the covenants,
stipulations, provisions, agreements, rights, remedies and claims
of the parties hereto in this Indenture contained shall bind and
inure to the benefit of their successors and assigns.
.8. Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of
this Indenture.
.9. Photocopies and Reproductions. A photocopy or
other reproduction of this Indenture may be filed as a financing
statement pursuant to the Louisiana Commercial Laws -Secured
Transactions, although the signatures of the Issuer and the
Trustee on such reproduction are not original manual signatures.
.10. Bonds Owned by the Company. In determining whether
Bondholders of the requisite aggregate principal amount of the
Bonds have concurred in any direction, consent or waiver under
this Indenture, Bonds which are owned by the Company or by any
person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company shall be
disregarded and deemed not to be outstanding for the purpose of
any such determination, except that, for the purpose of
determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, 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 if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Bonds
and that the pledgee is not the Company or any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Company. 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.
.11. Holidays. If the date for making any payment or
the last date for performance of any act or the exercising of any
right, as provided in this Indenture, shall be a legal holiday or
a day on which banking institutions in the city in which is
located the principal corporate trust office of the Trustee are
authorized by law to remain closed, such payment may be made or
act performed or right exercised on the next succeeding day not a
legal holiday or a day on which such banking institutions are
authorized by law to remain closed, with the same force and
effect as if done on the nominal date provided in this Indenture,
and no interest on the amount so payable shall accrue for the
period after such nominal date.
.12. Subordination to Rights of the Company. This
Indenture and the rights and privileges hereunder of the Trustee
and the holders of the Bonds are specifically made subject and
subordinate to the rights and privileges of the Company and Co-
owner of the Plant set forth in the Refunding Agreement. Nothing
in this Indenture or the Refunding Agreement shall in any way
prejudice the Company Mortgage with respect to the lien thereof,
or any of the rights of the Company Mortgage Trustee thereof, or
any holder of bonds heretofore or hereafter issued thereunder, or
any takers or purchasers upon default thereunder. The Trustee
agrees that it shall execute and deliver any instrument requested
by the Company which is necessary or appropriate at any time to
confirm or evidence the subordination of rights described in the
preceding sentence to enable the Company to enjoy such rights and
privileges. The Trustee acknowledges that the Bonds are not
secured by and this Indenture does not constitute or create any
direct lien or encumbrance on or rights in or to the Plant or
Facilities or any leasehold or other estate therein. The
Trustee, whenever requested by the Issuer or the Company or the
Co-Owner under (and as defined in the Refunding Agreement) the
Joint Ownership Agreement, shall execute and deliver any
instrument necessary or appropriate to confirm the absence of any
interest by it in the property comprising the Plant or Facilities
or to evidence the subordinations described in this Section
14.12.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused these presents to
be signed in its name and behalf by the President of the West
Feliciana Parish Police Jury and its corporate seal to be
hereunto affixed and attested by the Secretary of the West
Feliciana Parish Police Jury, and, to evidence its acceptance of
the trust hereby created, the Trustee has caused these presents
to be signed in its behalf by one of its trust officers and its
corporate seal to be hereto affixed.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By: ____________________________________
ATTEST: President
West Feliciana Parish Police Jury
By: __________________________________ [SEAL]
Secretary
West Feliciana Parish Police Jury
FIRST NATIONAL BANK OF COMMERCE,
as Trustee
By: ______________________________________
Vice President and Trust Officer
[SEAL]
<PAGE>
No. R-1 $102,000,000
Unless this Bond is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for
registration of transfer, exchange, or payment, and any Bond
issued is registered in the name of CEDE & CO. or in such
other name as is requested by an authorized representative
of DTC (and any payment is made to CEDE & CO. or to such
other entity as is requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, CEDE & CO., has an interest herein.
As provided in the Indenture referred to herein, until the
termination of the system of book-entry-only transfers
through DTC and notwithstanding any other provision of the
Indenture to the contrary, this Bond may be transferred, in
whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC or a nominee of DTC, or by DTC or a
nominee of DTC to any successor securities depository or any
nominee thereof.
United States of America
State of Louisiana
Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bond
(Gulf States Utilities Company Project)
Series 1994
Date of Bond: December 1, 1994
Maturity Date: December 1, 2024
Interest Rate: 8%
Registered Owner: Cede & Co. (Tax Identification #13-2555119)
Principal Amount: $102,000,000 CUSIP No. 952789AX3
<PAGE>
KNOW ALL MEN BY THESE PRESENTS that the Parish of West
Feliciana, State of Louisiana, a political subdivision of
the State of Louisiana, organized and existing under and by
virtue of the laws of the State of Louisiana (the "Issuer"),
for value received, promises to pay to the registered owner
shown above, or registered assigns, but solely from the
source and in the manner hereinafter set forth, on the
maturity date shown above, the principal amount shown above
and in like manner to pay interest on said amount from the
date hereof shown above until such principal amount shall be
duly paid at the rate per annum shown above, semiannually on
June 1 and December 1 of each year, commencing on the June 1
or December 1 next succeeding the date of this Bond, except
as the provisions hereinafter set forth with respect to
redemption of this Bond prior to maturity may become
applicable hereto. Overdue installments of interest shall
not bear interest. The principal of and premium, if any, on
this Bond are payable in lawful money of the United States
of America upon the presentation and surrender hereof at the
principal corporate trust office of First National Bank of
Commerce, in the City of New Orleans, Louisiana, or its
successor or successors, as trustee (the "Trustee"), and
interest on this Bond is payable in like money to the
registered owner hereof by check drawn upon the Trustee and
mailed to the person in whose name this Bond is registered
at the close of business on the fifteenth day of the
calendar month next preceding such interest payment date, at
the address as it appears on the bond registration books of
the Issuer kept by the Trustee.
This Bond is one of an authorized issue of bonds of the
Issuer designated "Parish of West Feliciana, State of
Louisiana Pollution Control Revenue Refunding Bonds (Gulf
States Utilities Company Project) Series 1994", in the
aggregate principal amount of $102,000,000 (the "Bonds"),
authorized by a resolution adopted by the governing
authority of the Issuer and issued under and secured by a
Trust Indenture dated as of December 1, 1994 (the
"Indenture") duly executed and delivered by the Issuer to
the Trustee, in full conformity with the Constitution and
laws of the State of Louisiana, including particularly the
provisions of Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended (the "Act"). The Bonds
are issued for the purpose of refunding the Issuer's
outstanding Pollution Control Revenue Bonds (Gulf States
Utilities Company Project) Series 1984A, Series 1984B,
Series 1984C and Series 1984D (the "Prior Bonds"), in the
aggregate principal amount of $102,000,000 issued to finance
the cost of acquiring a leasehold interest in the undivided
seventy percent interest of Gulf States Utilities Company, a
Texas corporation (the "Company") in certain water pollution
control and sewage disposal facilities (the "Facilities") at
the River Bend Unit 1 nuclear power plant located in the
Parish of West Feliciana, Louisiana (the "Plant").
Reference is hereby made to the Indenture and all indentures
supplemental thereto for the provisions, among others, with
respect to the nature and extent of the security, the
rights, duties and obligations of the Issuer, the Trustee
and the registered owners of the Bonds, and the terms upon
which the Bonds are issued and secured.
The Bonds and the interest thereon and premium, if any,
are not general obligations of the Issuer but are special
obligations payable solely from Revenues of the Issuer (as
defined in the Indenture), including, without limitation,
(i) payments to be made by the Company to the Trustee for
the benefit of the Issuer (except payments with respect to
indemnification, exculpation, payment of fees and
reimbursement of certain expenses of the Issuer) under a
Refunding Agreement dated as of December 1, 1994 between the
Issuer and the Company (the "Refunding Agreement"), (ii) all
money received under the Refunding Agreement to be paid into
the Bond Fund (as defined in the Indenture), including the
income thereon and investment thereof, if any, and (iii) in
certain events, amounts attributable to Bond proceeds or
amounts obtained through the exercise of certain remedies
provided for in the Indenture. The Refunding Agreement
requires that the Company make payments and pay interest
thereon in amounts sufficient to provide for the payment of
the principal of and premium, if any, and interest on the
Bonds as they become due and payable. Such payments will be
made directly to the Trustee and deposited in a special
account of the Issuer designated "Parish of West Feliciana
Pollution Control Revenue Refunding Bonds (Gulf States
Utilities Company Project) Series 1994 Bond Fund" and such
payments have been duly assigned to the Trustee for that
purpose. All the rights and interests of the Issuer under,
in and to the Refunding Agreement (except for certain rights
specified in the Indenture) have been assigned under the
Indenture to the Trustee to secure the payment of the
principal of and premium, if any, and interest on the Bonds.
The owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with
respect to any event of default under the Indenture, or to
institute, appear in and defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and with
the effect set forth in the Indenture, the principal of all
the Bonds issued under the Indenture and then outstanding
may be declared and may become due and payable before the
stated maturity thereof, together with accrued interest
thereon.
Modifications or alterations of the Indenture, or of any
indenture supplemental thereto, may be made only to the
extent and in the circumstances permitted by the Indenture.
The Bonds are subject to redemption prior to maturity as
follows:
(a) The Bonds shall be subject to optional redemption
by the Issuer, at the direction of the Company, at any time,
in whole but not in part, at a redemption price equal to the
principal amount being redeemed plus accrued interest to the
redemption date, if:
(i) the Company shall have determined that the
continued operation of the Plant is impracticable,
uneconomical or undesirable for any reason;
(ii) the Company shall have determined that the
continued operation of the Facilities is impracticable,
uneconomical or undesirable due to (A) the imposition
of taxes, other than ad valorem taxes currently levied
upon privately owned property used for the same general
purpose as the Facilities, or other liabilities or
burdens with respect to the Facilities or the operation
thereof, (B) changes in technology, in environmental
standards or legal requirements or in the economic
availability of materials, supplies, equipment or labor
or (C) destruction of or damage to all or part of the
Facilities;
(iii) all or substantially all of the
Facilities or the Plant shall have been condemned or
taken by eminent domain; or
(iv) the operation of the Facilities or the Plant
shall have been enjoined or shall have otherwise been
prohibited by any order, decree, rule or regulation of
any court or of any federal, state or local regulatory
body, administrative agency or other governmental body.
(b) The Bonds shall be subject to optional redemption by
the Issuer, at the direction of the Company, on and after
December 1, 1999, in whole at any time or in part from time
to time, at the redemption prices (expressed as percentages
of principal amount) set forth below, plus accrued interest
to the redemption date:
Redemption Period Redemption Price
December 1, 1999 through November 30, 2000 102%
December 1, 2000 through November 30, 2001 101%
December 1, 2001 and thereafter 100%
The Bonds also shall be subject to optional redemption by
the Issuer, at the direction of the Company, at any time
prior to December 1, 1999, in whole but not in part, at a
redemption price equal to 102% of the principal amount being
redeemed plus accrued interest to the redemption date, if
the Company shall have consolidated with or merged with or
into another corporation, or sold or otherwise transferred
all or substantially all of its assets.
In the event any of the Bonds or portions thereof (which
shall be in $5,000 denominations or any integral multiple
thereof) are called for redemption, notice thereof shall be
given by the Trustee by first class mail, postage prepaid,
to the registered owner of each such Bond addressed to such
registered owner at the registered address and placed in the
mails not less than thirty (30) days nor more than sixty
(60) days prior to the date fixed for redemption; provided,
however, that failure to give such notice by mailing, or any
defect therein, shall not affect the validity of any
proceeding for the redemption of any Bond with respect to
which no such failure or defect has occurred. Any notice
mailed as provided in the Indenture shall be conclusively
presumed to have been duly given, whether or not the holder
or owner receives the notice. Each notice shall identify
the Bonds or portions thereof being called, and the date on
which they shall be presented for payment. After the date
specified in such call, the Bond or Bonds so called will
cease to bear interest, provided funds sufficient for their
redemption have been deposited with the Trustee, and, except
for the purpose of payment, shall no longer be protected by
the Indenture and shall not be deemed to be outstanding
under the provisions of the Indenture.
With respect to notice of redemption of Bonds at the option
of the Issuer (at the direction of the Company), unless
moneys sufficient to pay the principal of and premium, if
any, and interest on the Bonds to be redeemed shall have
been received by the Trustee prior to the giving of such
notice, such notice may state that said redemption shall be
conditional upon the receipt of such moneys by the Trustee
on or prior to the date fixed for such redemption. If such
moneys shall not have been so received any such conditional
notice shall be of no force and effect, the Issuer shall not
redeem such Bonds and the Trustee shall give notice, in the
manner in which the notice of redemption was given, that
such moneys were not so received.
This Bond may be transferred on the books of registration
kept by the Trustee by the registered owner or by his duly
authorized attorney upon surrender hereof, together with a
written instrument of transfer duly executed by the
registered owner or his duly authorized attorney.
The Bonds are issuable as registered Bonds without coupons
in denominations of $5,000 and any integral multiple
thereof. Subject to the limitations and upon payment of the
charges provided in the Indenture, Bonds may be exchanged
for a like aggregate principal amount of Bonds of other
authorized denominations.
The Indenture and the rights and privileges under the
Indenture of the Trustee and the holders of the Bonds are
specifically made subject and subordinate to the rights and
privileges of the Company and co-owners of the Plant as set
forth in the Refunding Agreement. Nothing in the Indenture
or the Refunding Agreement shall in any way prejudice the
Company Mortgage with respect to the lien thereof, or any of
the rights of the Company Mortgage Trustee thereof, or any
holder of bonds heretofore or hereafter issued thereunder,
or any takers or purchasers upon default thereunder. As
used herein, "Company Mortgage" shall mean the Company's
Indenture of Mortgage dated as of September 1, 1926 made to
The Chase National Bank in the City of New York (now The
Chase Manhattan Bank), as trustee, and Chemical Bank, as
successor trustee, as heretofore and hereafter amended and
supplemented, and "Company Mortgage Trustee" shall mean the
successor trustee under the Company Mortgage.
This Bond is issued with the intent that the laws of the
State of Louisiana will govern its construction.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the Certificate of Authentication hereon
shall have been signed by the Trustee.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be
performed precedent to and in the issuance of the Bonds do
exist, have happened and have been performed in due time,
form and manner as required by law; that the indebtedness
represented by the Bonds, together with all obligations of
the Issuer, does not exceed any Louisiana constitutional or
statutory limitation; and that the revenues pledged to the
payment of the principal of and premium, if any, and
interest on the Bonds as the same become due and payable
will be sufficient in amount for that purpose.
IN WITNESS WHEREOF, the Parish of West Feliciana, State of
Louisiana, has caused this Bond to be executed by the
President of the West Feliciana Parish Police Jury and
attested by the Secretary of the West Feliciana Parish
Police Jury (by their manual or facsimile signatures),
thereunto duly authorized, and its corporate seal to be
affixed or imprinted, all as of the date of this Bond shown
above.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By: ________________________________________
President
ATTEST: West Feliciana Parish Police Jury
By:______________________________________
Secretary
West Feliciana Parish Police Jury [SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in
and issued under the provisions of the within mentioned
Indenture.
FIRST NATIONAL BANK
OF COMMERCE, as Trustee
By: ________________________________________
Authorized Signature
Date of Authentication: December ______, 1994
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto
____________________________________________________________
Please Insert Social Security
or other Identifying Number of Assignee
____________________________________________________________
the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints
____________________________________________________________
_____________________________________________ attorney or
agent to transfer the within Certificate on the books kept
for registration thereof, with full power of substitution in
the premises.
Dated: Signature: Signature Guaranteed:
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Cer
tificate in every particular, without alteration or enlarge
ment or any change whatever.
Signature guarantee should be made by a guarantor
institution participating in the Securities Transfer Agents
Medallion Program or in such other manner acceptable to the
Trustee.
<PAGE>
LEGAL OPINION CERTIFICATE
I, the undersigned Secretary of the Parish of West
Feliciana, State of Louisiana, do hereby certify that the
following is a true copy of the complete legal opinion of
Foley & Judell, the original of which was manually executed,
dated and issued as of the date of payment for and delivery
of this Bond and was delivered to the original purchaser of
the Bonds.
I further certify that an executed copy of the
following legal opinion is on file in my office and that an
executed copy thereof has been furnished to the Trustee for
this Bond.
________________________________________
Secretary
Exhibit B-12(a)
R e f u n d i n g A g r e e m e n t
between
Parish of West Feliciana,
State of Louisiana
and
Gulf States Utilities Company
Dated as of December 1, 1994
$102,000,000
Parish of West Feliciana, State of Louisiana
Pollution Control Revenue Refunding Bonds
(Gulf States Utilities Company Project)
Series 1994
<PAGE>
Table of Contents
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions -3-
SECTION 1.2. Use of Words and Phrases -5-
SECTION 1.3. Nontaxability -5-
ARTICLE II
REPRESENTATIONS
SECTION 2.1.Representations and Warranties of the Issuer -6-
SECTION 2.2.Representations and Warranties of the Company -6-
ARTICLE III
THE BONDS AND THE PROCEEDS THEREOF
SECTION 3.1. Agreement to Issue Bonds -8-
SECTION 3.2. Bond Redemption -8-
SECTION 3.3. Investment of Funds; Non-Arbitrage Covenant -8-
SECTION 3.4. Agreement to Redeem Bonds -8-
ARTICLE IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
SECTION 4.1. Deposit of Bond Proceeds -9-
SECTION 4.2. Payments -9-
SECTION 4.3. Left Blank Intentionally -10-
SECTION 4.4. Payments Assigned; Obligation Absolute -10-
SECTION 4.5. Payment of Expenses -10-
SECTION 4.6. Indemnification -10-
SECTION 4.7. Payment of Taxes -11-
ARTICLE V
REFUNDING OF PRIOR BONDS
SECTION 5.1.Refunding Fund-Disbursement of Bond Proceeds -12-
SECTION 5.2. Compliance with Prior Indenture -12-
ARTICLE VI
SPECIAL COVENANTS AND AGREEMENTS
SECTION 6.1. Maintenance of Corporate Existence -13-
SECTION 6.2. Limited Obligation Bonds -13-
SECTION 6.3. Arbitrage -13-
SECTION 6.4. Maintenance of Facilities -14-
SECTION 6.5. Permits -15-
SECTION 6.6. Compliance with Law -15-
SECTION 6.7. No Warranty -15-
<PAGE>
ARTICLE VII
ASSIGNMENT, LEASING AND SELLING
SECTION 7.1. By the Company -16-
SECTION 7.2. Limitation -16-
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.1. Events of Default -17-
SECTION 8.2. Force Majeure -17-
SECTION 8.3. Remedies on Default -17-
SECTION 8.4. No Remedy Exclusive -18-
SECTION 8.5. Payment of Attorneys' Fees and Other Expenses -18-
SECTION 8.6. Waiver of Breach -18-
ARTICLE IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
SECTION 9.1. Redemption of Bonds -20-
SECTION 9.2. Purchase of Bonds -20-
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Term of the Agreement -21-
SECTION 10.2. Notices -21-
SECTION 10.3. Successors -21-
SECTION 10.4. Amendments to Refunding Agreement -22-
SECTION 10.5. Counterparts -22-
SECTION 10.6. Recording and Filing -22-
SECTION 10.7. Photocopies and Reproductions -22-
SECTION 10.8. Severability -22-
SECTION 10.9. Applicable Law -22-
SECTION 10.10. Holidays -22-
SECTION 10.11. Amounts Remaining in Bond Fund -22-
SECTION 10.12. Company Approval of Indenture -23-
SECTION 10.13. Binding Effect -23-
SECTION 10.14. Captions and Headings -23-
SECTION 10.15. No Personal Liability -23-
SECTION 10.16. Parties in Interest -23-
<PAGE>
Refunding Agreement
This Refunding Agreement dated as of December 1, 1994 by and
between the Parish of West Feliciana, State of Louisiana, a
political subdivision of the State of Louisiana (the "Issuer"),
and Gulf States Utilities Company, a corporation duly organized
and existing under the laws of the State of Texas and qualified
to do business in the State of Louisiana (the "Company");
W i t n e s s e t h :
WHEREAS, the Issuer is a political subdivision of the State
of Louisiana, created and existing pursuant to the Constitution
and laws of such State and is authorized and empowered by law,
including particularly the provisions of Chapter 14-A of Title 39
of the Louisiana Revised Statutes of 1950, as amended (La. R.S.
39:1444-1456) (the "Act"), to issue refunding bonds for the
purpose of refunding, readjusting, restructuring, refinancing,
extending, or unifying the whole or any part of outstanding
securities of the Issuer in an amount sufficient to provide funds
necessary to effectuate the purpose for which the refunding bonds
are being issued and to pay all costs associated therewith; and
WHEREAS, pursuant to the provisions of Sections 991 to 1001,
inclusive, of Title 39 of the Louisiana Revised Statutes of 1950,
as amended (the "Prior Act"), and an Indenture of Trust and
Pledge dated as of May 1, 1984, as amended and supplemented by a
Supplement No. 1 to Indenture of Trust and Pledge dated as of
August 1, 1984, by and between the Issuer and City National Bank
of Baton Rouge, a national banking association duly organized and
existing under the laws of the United States of America, as
trustee (collectively, the "Prior Indenture"), the Issuer issued
its Pollution Control Revenue Bonds (Gulf States Utilities
Company Project) Series 1984A, Series 1984B, Series 1984C and
Series 1984D (the "Prior Bonds") in the aggregate principal
amount of $102,000,000 for the purpose of providing funds to
finance the cost of acquiring a leasehold interest in the
undivided seventy percent interest in certain water pollution
control and sewage disposal facilities (the "Facilities") at the
River Bend Unit 1 nuclear power plant in the Parish of West
Feliciana, Louisiana, owned by the Company; and
WHEREAS, pursuant to and in accordance with the provisions
of the Act, the Issuer has agreed to issue its refunding bonds
for the purpose of refunding the Prior Bonds; and
WHEREAS, in consideration of the issuance of said refunding
bonds by the Issuer, the Company will agree to make payments in
an amount sufficient to pay the principal of, premium, if any,
and interest on said refunding bonds pursuant to this Agreement,
said refunding bonds to be paid solely from the revenues derived
by the Issuer from said payments by the Company pursuant to this
Agreement and any moneys held under the hereinafter defined
Indenture, and said refunding bonds shall not constitute an
indebtedness or pledge of the general credit of the Issuer or the
State of Louisiana, within the meaning of any constitutional or
statutory limitation of indebtedness or otherwise; and
WHEREAS, the execution and delivery of this Agreement under
the Act have been in all respects duly and validly authorized by
a resolution of the Police Jury of the Parish of West Feliciana,
State of Louisiana, duly adopted;
NOW, THEREFORE, in consideration of the premises and of the
covenants and undertakings herein expressed, the parties hereto
agree as follows:
I
DEFINITIONS
.1. Definitions. In addition to the words and terms
elsewhere defined in this Agreement or in the Indenture, the
following words and terms as used in this Agreement shall have
the following meanings unless the context or use indicates
another or different meaning:
"Act" means Chapter 14-A of Title 39 of the Louisiana
Revised Statutes of 1950, as amended.
"Administration Expenses" means the reasonable and necessary
expenses incurred by the Issuer with respect to this Agreement,
the Indenture and any transaction or event contemplated by this
Agreement or the Indenture including the compensation and
reimbursement of expenses and advances payable to the Trustee,
any paying agent, any co-paying agent, and the registrar under
the Indenture.
"Agreement" means this Refunding Agreement and any
amendments and supplements hereto.
"Bond Fund" shall have the meaning given and assigned
thereto in the Indenture.
"Bonds" means the $102,000,000 aggregate principal amount of
Pollution Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 authorized to be issued under the
Indenture.
"Code" means the Internal Revenue Code of 1986, as
heretofore or hereafter amended.
"Company" means Gulf States Utilities Company, a Texas
corporation, and its permitted successors and assigns.
"Company Mortgage" means the Company's Indenture of Mortgage
dated as of September 1, 1926 made to The Chase National Bank in
the City of New York (now The Chase Manhattan Bank), as trustee,
and Chemical Bank, as successor trustee, as heretofore and
hereafter amended and supplemented.
"Company Mortgage Trustee" means the successor trustee under
the Company Mortgage.
"Co-Owner" means Cajun Electric Power Cooperative, Inc., a
Louisiana corporation.
"Costs of Issuance" means all fees, charges and expenses
incurred in connection with the authorization, preparation, sale,
issuance and delivery of the Bonds, including, without
limitation, financial, legal and accounting fees, expenses and
disbursements, rating agency fees, the Issuer's expenses
attributable to the issuance of the Bonds, the cost of printing,
engraving and reproduction services and the initial or acceptance
fee of the Trustee.
"Disclosure Documents" means the Official Statement with
respect to the Bonds, together with all documents incorporated
therein by reference.
"Event of Default" means any event of default specified in
Section 8.1 hereof.
"Facilities" means the Company's undivided seventy percent
interest in certain water pollution control and sewage disposal
facilities (financed in part with the proceeds of the Prior
Bonds) at the River Bend Unit 1 nuclear power plant in the Parish
of West Feliciana, Louisiana.
"First Mortgage Bonds" means the bonds of one or more series
issued and delivered under the Company Mortgage.
"Government Securities" means (a) direct or fully guaranteed
obligations of the United States of America (including any such
securities issued or held in book-entry form), and (b)
certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in
clause (a) above or in any specific interest or principal
payments due in respect thereof; provided, however, that the
custodian of such obligations or, the custodian of such specific
interest or principal payments, shall be a bank or trust company
organized under the laws of the United States of America or of
any state or territory thereof or of the District of Columbia,
with a combined capital stock, surplus and undivided profits of
at least $50,000,000; and provided, further, that except as may
be otherwise required by law, such custodian shall be obligated
to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian
in respect of such obligations or specific payments and shall not
be permitted to make any deduction therefrom.
"Indenture" means the Trust Indenture dated as of December
1, 1994 between the Issuer and the Trustee securing the Bonds,
and any amendments and supplements thereto.
"Issuer" means the Parish of West Feliciana, State of
Louisiana, a political subdivision of the State of Louisiana.
"Joint Ownership Agreement" means the Joint Ownership
Participation and Operating Agreement, River Bend Unit 1 Nuclear
Plant, dated August 28, 1979, among the Company, the Co-Owner,
and Sam Rayburn G & T, Inc., a Texas corporation, as amended from
time to time.
"outstanding", when used with reference to the Bonds, shall
mean, as of any particular date, all Bonds authenticated and
delivered under the Indenture except:
(a) Bonds canceled at or prior to such date or
delivered to or acquired by the Trustee prior to such date
for cancellation;
(b) Bonds deemed to be paid in accordance with Article
IX of the Indenture;
(c) Bonds in lieu of or in exchange or substitution
for which other Bonds shall have been authenticated and
delivered pursuant to the Indenture; and
(d) Bonds registered in the name of the Issuer.
"Prior Bonds" means the Issuer's Pollution Control Revenue
Bonds (Gulf States Utilities Company Project) Series 1984A,
Series 1984B, Series 1984C and Series 1984D issued and
outstanding in the aggregate principal amount of $102,000,000.
"Prior Indenture" means the Indenture of Trust and Pledge
dated as of May 1, 1984, as amended and supplemented by a
Supplement No. 1 to Indenture of Trust and Pledge dated August 1,
1984, between the Issuer and City National Bank of Baton Rouge.
"Refunding Date" means January 20, 1995, or such later date
as may be established by the Company; provided, however, that the
Refunding Date shall not be later than ninety (90) days following
the date of issuance of the Bonds.
"Refunding Fund" has the meaning set forth in the Indenture.
"Regulations" means all final and proposed United States
Income Tax Regulations.
"Trustee" means First National Bank of Commerce, in the City
of New Orleans, Louisiana, as trustee under the Indenture, and
its successors as trustee.
.2. Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinabove", "hereinafter", and other
equivalent words and phrases refer to this Agreement and not
solely to the particular portion thereof in which any such word
is used. The definitions set forth in Section 1.1 hereof include
both singular and plural. Whenever used herein, any pronoun
shall be deemed to include both singular and plural and to cover
all genders.
.3. Nontaxability. It is intended by the parties
hereto that this Agreement and all action taken hereunder be
consistent with and pursuant to the resolutions of the governing
authority of the Issuer relating to the Bonds, and that the
interest on the Bonds be excluded from the gross income of the
recipients thereof other than a person who is a "substantial
user" of the Facilities or a "related person" of a "substantial
user" within the meaning of the Code for federal income tax
purposes by reason of the provisions of the Code. The Company
will not use any of the funds provided by the Issuer hereunder in
such a manner as to impair the exclusion of interest on any of
the Bonds from the gross income of the recipient thereof for
federal income tax purposes nor will it take any action that
would impair such exclusion or fail to take any action if such
failure would impair such exclusion.
<PAGE>
II
REPRESENTATIONS
.1. Representations and Warranties of the Issuer. The
Issuer makes the following representations and warranties as the
basis for the undertakings on the part of the Company herein
contained:
(a) The Issuer is a political subdivision of the State of
Louisiana, created and existing pursuant to the constitution and
laws of such State and is authorized and empowered by the
provisions of the Act and other constitutional and statutory
authority supplemental thereto, to issue the Bonds.
(b) The Issuer has full power and authority to enter into this
Agreement and the Indenture and to carry out its obligations
under this Agreement and the Indenture and the transactions
contemplated hereby and thereby.
(c) The Issuer has duly authorized the execution and delivery
of this Agreement and the Indenture and the issuance and sale of
the Bonds.
(d) The Bonds are issued under and secured by the Indenture,
pursuant to which the interest of the Issuer in this Agreement
and the amounts payable under this Agreement, (other than
indemnification and expense reimbursement rights) are assigned to
the Trustee as security for the payment of the principal of,
premium, if any, and interest on the Bonds.
(e) Neither the execution and delivery of this Agreement or the
Indenture, nor the assignment of this Agreement to the Trustee,
nor the consummation of the transactions contemplated by this
Agreement or the Indenture, nor the fulfillment of or compliance
with the terms and conditions of this Agreement or the Indenture,
results or will result in the violation of any governmental order
applicable to the Issuer, or conflicts or will conflict with or
results or will result in a breach of any of the terms,
conditions or provisions of any agreement or instrument to which
the Issuer is now a party or by which it is bound, or constitutes
or will constitute a default under any of the foregoing.
.2. Representations and Warranties of the Company.
The Company hereby makes the following representations and
warranties as the basis for the undertakings on the part of the
Issuer herein undertaken for the benefit and reliance of the
Issuer, the Trustee and the holders of the Bonds:
(a) The Company is a corporation duly incorporated and in good
standing under the laws of the State of Texas and is in good
standing under the laws of the State of Louisiana, is not in
violation of any provision of its Restated Articles of
Incorporation or its Bylaws, has power to enter into this Agree
ment and to perform and observe the agreements and covenants on
its part contained herein and has duly authorized the execution
and delivery of this Agreement by proper corporate action.
(b) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of or compliance with the terms and conditions of
this Agreement, conflicts with or results in a breach of the
terms, conditions or provisions of any restriction or any
agreement or instrument to which the Company is now a party or by
which the Company is bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of any
lien, charge or encumbrance whatsoever upon any of the property
or assets of the Company except any interests created herein,
under the Indenture.
(c) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with
its terms, subject to laws relating to bankruptcy, moratorium,
insolvency or reorganization and similar laws affecting
creditors' rights generally.
(d) Except as shall have been disclosed in the Disclosure
Documents, there are no actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or affecting
the Company or the assets, properties or operations of the
Company which, if determined adversely to the Company or its
interests, (1) would materially adversely affect the consummation
of the transactions contemplated by this Agreement, (2) would
adversely affect the validity of this Agreement or (3) could have
a material adverse effect upon the financial condition, assets,
properties or operations of the Company.
(e) No event has occurred and no condition exists with respect
to the Company that would constitute an Event of Default under
this Agreement or which, with the lapse of time or with the
giving of notice or both, could reasonably be expected to become
an "Event of Default" hereunder.
(f) The Securities and Exchange Commission has approved all
matters relating to the Company's participation in the
transactions contemplated by this Agreement which require said
approval, and no other consent, approval, authorization or other
order of any regulatory body or administrative agency or other
governmental body is legally required for the Company's
participation therein, except such as may have been obtained or
may be required under the securities laws of any state.
<PAGE>
III
THE BONDS AND THE PROCEEDS THEREOF
.1. Agreement to Issue Bonds. The Issuer has
authorized the issuance and sale of the Bonds in the principal
amount of $102,000,000. Upon issuance and delivery thereof, the
proceeds of the Bonds shall be deposited with the Trustee in the
Refunding Fund (except for proceeds which represent accrued
interest, if any) in accordance with the Indenture. The Issuer
does not make any warranty, either express or implied, that the
proceeds of the Bonds will be sufficient to effectuate the
refunding of the principal of the Prior Bonds.
.2. Bond Redemption. The Issuer shall, at the request
of the Company, take all steps as may be necessary under the
Indenture to effect the redemption, as provided under the
Indenture, of any or all of the Bonds or portions thereof as may
be specified by the Company.
.3. Investment of Funds; Non-Arbitrage Covenant. Any
moneys held as part of the Bond Fund and the Refunding Fund shall
be invested, reinvested or applied by the Trustee in accordance
with and subject to the conditions of Article VII of the
Indenture. The Company and the Issuer shall make no use of the
proceeds of the Bonds, or any funds which may be deemed to be
proceeds of the Bonds pursuant to Section 148 of the Code and the
applicable regulations thereunder, which would cause the Bonds to
be "arbitrage bonds" within the meaning of such Section and such
regulations, and the Company shall comply with and the Issuer
shall take no action to violate the requirements of such Section
and such regulations while any Bonds remain outstanding.
.4. Agreement to Redeem Bonds. The Company agrees to
pay to the trustee for the Prior Bonds, in funds available to the
Trustee on or prior to the Refunding Date, for deposit into the
bond fund created under the Prior Indenture securing the Prior
Bonds and in accordance with the terms of the Prior Indenture,
any amount necessary to pay the principal of, redemption premium
and accrued interest due on the Prior Bonds, to the extent that
the amount delivered by the Issuer pursuant to Section 3.1 hereof
is insufficient for such purpose.
<PAGE>
IV
DEPOSIT OF BOND PROCEEDS; PAYMENTS
.1. Deposit of Bond Proceeds. Concurrently with the
delivery of the Bonds, the Issuer will, upon the terms and
subject to the conditions of this Agreement, deposit all of the
proceeds thereof with the Trustee for deposit into the Refunding
Fund (except for proceeds which represent accrued interest, if
any) in accordance with the Indenture for application as provided
in Article V hereof and the Indenture to refund on the Refunding
Date the outstanding principal amount of the Prior Bonds. The
Company shall provide such additional moneys as are required to
pay the interest and premium, if any, on the Prior Bonds on the
dates and in the manner as provided in the Prior Indenture in
order to cause the redemption of the Prior Bonds on the Refunding
Date. The Company shall pay out of its own money and not out of
proceeds of the Bonds all reasonable Costs of Issuance with
respect to the Bonds.
.2. Payments. (a) The Company shall pay to the
Trustee for the account of the Issuer on each date on which the
principal of, premium, if any, or interest on the Bonds comes
due, whether at the maturity thereof or upon acceleration,
redemption or otherwise in accordance with the provisions of the
Indenture, an amount equal to the sum of (i) all interest due and
payable on the Bonds on such date, (ii) the principal amount of
Bonds, if any, due and payable on such date, (iii) amounts, if
any, required to effect redemption of Bonds upon unconditional
call thereof on such date pursuant to the Indenture, together
with accrued interest and any applicable redemption premium, and
(iv) all amounts due on such date to the Trustee or the Issuer
under this Agreement, the Indenture or any other agreements
entered into in connection with the issuance of the Bonds and any
other Administration Expenses. The Company directs the Trustee
to apply such amounts to the purpose for which they are paid.
The payments required under this Section 4.2(a)(i), (ii) and
(iii) shall be paid by check, draft, wire transfer or other means
acceptable to the Trustee directly to the Trustee in funds
immediately available to the Trustee on the payment date, and
shall be immediately deposited by the Trustee in the Bond Fund.
In any event, the Company agrees to make payments to the Trustee
for deposit in the Bond Fund at such times and in such manner so
as to enable the Trustee to make payment of the principal of,
premium, if any, and accrued interest on the Bonds as the same
shall become due and payable whether by acceleration, redemption
or otherwise in accordance with the terms of the Indenture.
(a) If the Company should fail to make any of the payments
required in subsection (a) above, the item or installment which
the Company has failed to make shall continue as an obligation of
the Company until the same shall have been fully paid.
(b) Anything herein, in the Indenture or in the Bonds to
the contrary notwithstanding, the obligations of the Issuer and
the Company hereunder shall be subject to the limitation that
payments constituting interest under this Section or the Bonds
shall not be required to the extent that the receipt of such
payment by any owner of any Bonds would be contrary to the
provisions of law applicable to such owner which limit the
maximum rate of interest that may be charged or collected by such
owner.
(c) In addition to the options and obligations of the
Company under Article IX hereof to accelerate payment of the
unpaid balance due hereunder, the Company shall have the option
to make from time to time partial prepayments of the amounts due
hereunder. The making of any prepayments by the Company shall
not require the Company to make any further prepayments. The
Issuer shall direct the Trustee to apply such prepayments in such
manner, consistent with the provisions of the Indenture, as may
be directed by the Company.
In the event that (i) such partial prepayments shall be
applied by the Trustee pursuant to the Indenture to the purchase,
defeasance or redemption of the Bonds or (ii) the Bonds are
presented by the Company or the Issuer to the Trustee for
cancellation pursuant to the Indenture, the Company shall be
entitled to a credit for the Bonds so purchased, defeased,
redeemed or cancelled against payments required to be made under
the provisions of this Article.
.3. Left Blank Intentionally.
.4. Payments Assigned; Obligation Absolute. It is
understood and agreed that all payments under Section 4.2(a)(i),
(ii) and (iii) to be made by the Company are pledged by the
Issuer to the Trustee pursuant to the Indenture, and that all
rights and interest of the Issuer hereunder (except for the
Issuer's rights under Sections 4.5, 4.6, 4.7 and 8.5 hereof and
any rights of the Issuer to receive notices, certificates,
requests, requisitions, directions and other communications
hereunder) are pledged and assigned to the Trustee. The Company
assents to such pledge and assignment and agrees that the
obligation of the Company to make payments under Section
4.2(a)(i), (ii) and (iii) shall be absolute, irrevocable and
unconditional and shall not be subject to cancellation,
termination or abatement, or to any defense other than payment or
to any right of set-off, counterclaim or recoupment arising out
of any breach under this Agreement, the Indenture or otherwise by
the Issuer or the Trustee or any other party, or out of any
obligation or liability at any time owing to the Company by the
Issuer, the Trustee or any other party, and, further, that the
payments under Section 4.2(a)(i), (ii) and (iii) and the other
payments due hereunder shall continue to be payable at the times
and in the amounts specified herein, whether or not the
Facilities, or any portion thereof, shall have been destroyed by
fire or other casualty, or title thereto, or the use thereof,
shall have been taken by the exercise of the power of eminent
domain and whether or not any exercise of rights by the Co-Owner
under the Joint Ownership Agreement, prevent or prohibit the use
of the Facilities, and that there shall be no abatement of or
diminution in any such payments by reason thereof, whether or not
the Facilities shall be used or useful, and whether or not any
applicable laws, regulations or standards shall prevent or
prohibit the use of the Facilities, or for any other reason.
.5. Payment of Expenses. The Company shall pay or
cause to be paid all Administration Expenses, including those of
the Issuer, the Trustee, any paying agent, any co-paying agent,
and the registrar under the Indenture, such payments to be made
directly to such entities.
.6. Indemnification. The Company releases the Issuer
and the Trustee from, agrees that the Issuer and the Trustee
shall not be liable for, and agrees to indemnify and hold the
Issuer and the Trustee free and harmless from, any liability for
any loss or damage to property or any injury to or death of any
person that may be occasioned by any cause whatsoever pertaining
to the Facilities, including, without limitation, the financing
or refinancing of the Facilities and the Prior Bonds or Bonds
issued with respect thereto, except in any case as a result of
the negligence, willful misconduct or bad faith of the Issuer or
the Trustee.
The Company will indemnify and hold the Issuer and the
Trustee free and harmless from any loss, claim, damage, tax,
penalty, liability (including but not limited to liability for
any patent infringement), disbursement, litigation expenses,
attorneys' fees and expenses or court costs arising out of, or in
any way relating to, the execution or performance of this
Agreement, the issuance or sale of the Prior Bonds or the Bonds,
actions taken under the Indenture, or any other cause whatsoever
pertaining to the Facilities, including without limitation,
recovery costs arising from the presence of hazardous substances,
except in any case as a result of the negligence, willful
misconduct or bad faith of the Trustee, or as a result of the
gross negligence, willful misconduct or bad faith of the Issuer.
Under this Section, the Company shall also be deemed to
release, indemnify and agree to hold harmless each employee,
official or officer of the Issuer and the Trustee to the same
extent as the Issuer and the Trustee.
.7. Payment of Taxes. The Company agrees that it will
pay, as the same become due, all taxes and governmental charges
of any kind whatsoever that may at any time be lawfully assessed
or levied against the Company or the Issuer with respect to the
Facilities or any portion thereof or with respect to the Prior
Bonds, including, without limiting the generality of the
foregoing, any taxes lawfully levied against the Company or the
Issuer upon or with respect to the income or profits of the
Issuer from the Facilities or any charge on the payments made
pursuant to Section 4.2(a)(i), (ii) or (iii) hereof prior to or
on a parity with the charge under the Indenture thereon and the
pledge or assignment thereof to be created and made in the
Indenture, and including all ad valorem taxes lawfully assessed
upon the Facilities, all utility and other charges incurred in
the operation, maintenance, use, occupancy and upkeep of the
Facilities, all assessments and charges lawfully made by any
governmental body against the Company or the Issuer for or on
account of the Facilities and in addition any excise tax levied
against the Company or the Issuer on the payments made pursuant
to Section 4.2(a)(i), (ii) and (iii) hereof; provided, however,
that nothing herein shall require the payment of any such tax or
charge or make provision for the payment thereof, so long as the
validity thereof shall be contested in good faith by the Company
by appropriate legal proceedings; further provided, that with
respect to special assessments or other governmental charges that
may lawfully be paid in installments over a period of years, the
Company shall be obligated to pay only such installments as are
required to be paid during the term of this Agreement.
<PAGE>
V
REFUNDING OF PRIOR BONDS
.1. Refunding Fund - Disbursement of Bond Proceeds.
The Trustee, as authorized by the Issuer in the Indenture, shall
transfer out of the Refunding Fund the proceeds of the Bonds
(exclusive of accrued interest, if any, received with respect to
the Bonds) on the date of issuance thereof to the trustee under
the Prior Indenture for disbursement and investment in accordance
with the Prior Indenture in order to redeem the Prior Bonds on
the Refunding Date.
.2. Compliance with Prior Indenture. The Issuer shall
take all steps as may be necessary to effect the redemption of
the Prior Bonds on the Refunding Date as provided in the Prior
Indenture and as contemplated herein.
<PAGE>
VI
SPECIAL COVENANTS AND AGREEMENTS
.1. Maintenance of Corporate Existence. The Company
shall maintain its corporate existence, will not dissolve or
otherwise dispose of all or substantially all its assets and will
not consolidate with or merge with or into another corporation or
permit one or more other corporations to consolidate with or
merge into it; provided, that the Company may, without violating
the agreements contained in this Section consolidate with or
merge into another domestic corporation (i.e., a corporation
incorporated and existing under the laws of one of the states of
the United States of America or the District of Columbia or under
the laws of the United States of America) or permit one or more
such domestic corporations to consolidate with or merge into it,
or sell or otherwise transfer to another domestic corporation all
or substantially all of its assets as an entirety and thereafter
dissolve; provided, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, such surviving, resulting or transferee corporation assumes
in writing all of the obligations of the Company herein.
If consolidation, merger or sale or other transfer is made
as permitted by this Section, the provisions of this Section
shall continue in full force and effect and no further
consolidation, merger or sale or other transfer shall be made
except in compliance with the provisions of this Section.
.2. Limited Obligation Bonds. The Bonds shall be
limited obligations of the Issuer and shall be payable solely out
of the revenues of the Issuer from this Agreement as provided in
the Indenture (including all sums deposited in the Bond Fund from
time to time pursuant to this Agreement and the Indenture, and in
certain events, amounts obtained through the exercise of certain
remedies provided in the Indenture). The Bonds shall never be
general obligations of the Issuer nor constitute an indebtedness
or pledge of the general credit of the Issuer within the meaning
of any constitutional or statutory provision or limitation of
indebtedness, and shall never be paid in whole or in part out of
any funds raised or to be raised by taxation of any other funds
of the Issuer.
.3. Arbitrage. The Issuer and the Company hereby
covenant with each other, the Trustee and each of the holders of
any Bonds that neither of them will cause or permit the proceeds
of the Bonds to be used in a manner that will cause the interest
on the Bonds to be includable in gross income of the recipients
thereof other than a person who is a "substantial user" of the
Facilities or a "related person" to such "substantial user"
within the meaning of the Code for federal income tax purposes.
In addition, the Company covenants that to the extent permitted
by law, it shall take all actions within its control necessary to
maintain the exclusion of the interest on the Bonds from gross
income for federal income tax purposes under federal tax law
existing on the date of delivery of the Bonds. In furtherance of
the foregoing, the Company also agrees on behalf of the Issuer to
comply with all rebate requirements and procedures as may become
applicable to the Bonds under the Code.
Without limiting the generality of the foregoing, the
Company further covenants and agrees, as follows:
(a) The Facilities are located within the jurisdiction of the
Issuer.
(b) Substantially all of the net proceeds of the sale of the
Prior Bonds have been used to undertake the acquisition of "air
or water pollution control and solid waste disposal facilities"
within the meaning of Section 103(b)(4)(E) and (F) of the
Internal Revenue Code of 1954, as amended. All of the proceeds
of the Prior Bonds have been expended.
(c) The weighted average maturity of the Bonds does not exceed
120% of the remaining reasonably expected economic life of the
Facilities financed with the proceeds of the Prior Bonds.
(d) The principal amount of the Bonds shall not exceed the
outstanding principal amount of the Prior Bonds.
(e) The Bonds are not and will not be "federally guaranteed"
(as defined in Section 149(b) of the Code).
(f) None of the proceeds of the Bonds will be used, and none of
the proceeds of the Prior Bonds were used, to provide any
airplane, skybox or other private luxury box, or health club
facility; any facility primarily used for gambling; or any store
the principal business of which is the sale of alcoholic
beverages for consumption off premises.
(g) The information furnished by the Company and used by the
Issuer in preparing the certification pursuant to Section 148 of
the Code and information statement pursuant to Section 149(e) of
the Code, is accurate and complete as of the date of the issuance
of the Bonds.
(h) None of the proceeds of the Bonds will be used to finance
Costs of Issuance of the Bonds.
(i) The Company will take no action that would cause any funds
constituting gross proceeds of the Bonds to be used in a manner
as to constitute a prohibited payment under the applicable
regulations pertaining to, or in any other fashion as would
constitute failure of compliance with, Section 148 of the Code.
.4. Maintenance of Facilities. The Company covenants
that while any of the Bonds are outstanding it will, at its own
expense, maintain the Facilities in good repair and make all
required replacements and renewals thereof. However, the Company
shall have no obligation to replace or renew any portion of the
Facilities, if in the Company's opinion, it is unnecessary or
undesirable to do so.
The Company agrees that the Facilities will be insured
against loss or damage of such kinds and in such amounts,
including without limitation, fire and extended coverage risks
(including property insurance) in such amounts and covering such
risks as are customarily insured against by companies operating
similar properties. Any provisions of this Agreement to the
contrary notwithstanding, the Company shall be entitled to the
proceeds of any insurance or condemnation award or portion
thereof with respect to the Facilities and such shall be paid
directly to the Company.
.5. Permits. The Company shall, at its sole cost and
expense, procure or cause to be procured any and all necessary
building permits, other permits, licenses and other
authorizations required for the lawful and proper use,
occupation, operation and management of the Facilities and which,
if not obtained, would materially adversely affect or impair the
obligations of the Company under this Agreement or the ability of
the Company to discharge such obligations.
.6. Compliance with Law. The Company shall,
throughout the term of this Agreement and at no expense to the
Issuer, promptly comply or cause compliance with all laws,
ordinances, orders, rules, regulations and requirements of duly
constituted public authorities that are applicable to the
Facilities or to the repair and alteration thereof, or to the use
or manner of use of the Facilities and which, if there is non-
compliance, would materially adversely affect or impair the
obligations of the Company under this Agreement or the ability of
the Company to discharge such obligations. Notwithstanding the
foregoing, the Company shall have the right to contest the
legality of any such law, ordinance, order, rule, regulation or
requirement as applied to the Facilities provided that in the
opinion of counsel to the Company such contest shall not in any
way materially adversely affect or impair the obligations of the
Company under this Agreement or the ability of the Company to
discharge such obligations.
.7. No Warranty. The Issuer makes no warranty, either
express or implied, as to the Facilities, including, without
limitation, title to the Facilities or the actual or designed
capacity of the Facilities, as to the suitability or operation of
the Facilities for the purposes specified in this Agreement, as
to the condition of the Facilities or as to the suitability
thereof for the Company's purposes or needs or as to compliance
of the Facilities with applicable laws and regulations or the
ability of the Company to discharge the Bonds. The Company
covenants with the Issuer that it will make no claim against the
Issuer for any deficiency which may at any time exist in the
Facilities, nor will it assert against the Issuer any other claim
for breach of warranty with respect to the Facilities. The
obligations of the Company under this Section shall survive any
assignment or termination of this Agreement.
<PAGE>
VII
ASSIGNMENT, LEASING AND SELLING
.1. By the Company. The Company's interest in this
Agreement may be assigned in whole or in part, and the Facilities
may be leased or sold as a whole or in part (whether a specific
element or unit or an undivided interest), by the Company,
subject, however, to the condition that no assignment, lease or
sale (other than as described in Section 6.1 hereof) shall
relieve the Company from primary liability for its obligations
under Section 4.2 hereof to pay the payments required thereunder,
or for any other of its obligations hereunder, other than those
obligations relating to the operation, maintenance and insurance
of the Facilities, which obligations (to the extent of the
interest assigned, leased or sold and to the extent assumed by
the assignee, lessee or purchaser) shall be deemed to be
satisfied and discharged.
The Company shall, within fifteen (15) days after the
delivery thereof, furnish to the Issuer and the Trustee a true
and complete copy of the agreements or other documents
effectuating any such assignment, lease or sale.
.2. Limitation. This Agreement shall not be assigned
nor shall the Facilities be leased or sold, in whole or in part,
except as provided in this Article VII, Sections 4.4 or 6.1
hereof.
<PAGE>
VIII
EVENTS OF DEFAULT AND REMEDIES
.1. Events of Default. Each of the following events
shall constitute and is referred to in this Agreement as an
"Event of Default":
(a) a failure by the Company to make when due any payment
required to be made pursuant to Section 4.2 hereof, which failure
shall have resulted in an "Event of Default" under clause (a) or
(b) of Section 9.1 of the Indenture; or
(b) a failure by the Company to pay when due any other amount
required to be paid under this Agreement or to observe and
perform any covenant, condition or agreement on its part to be
observed or performed, which failure shall continue for a period
of ninety (90) days after written notice, specifying such failure
and requesting that it be remedied, shall have been given to the
Company by the Issuer or the Trustee, unless the Issuer and the
Trustee shall agree in writing to an extension of such period
prior to its expiration; provided, however, that the Issuer and
the Trustee shall be deemed to have agreed to an extension of
such period if corrective action is initiated by the Company
within such period and is being diligently pursued.
.2. Force Majeure. The provisions of Section 8.1
hereof are subject to the following limitations: If by reason of
acts of God; strikes, lockouts or other industrial disturbances;
acts of public enemies; orders or other acts of any kind of the
government of the United States or of the States of Louisiana or
Texas, or any other sovereign entity or body politic, or any
department, agency, political subdivision, court or official of
any of them, or any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; volcanoes;
fires; hurricanes; tornados; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances;
explosions; breakage of, or accident to, machinery; partial or
entire failure of utilities; or any cause or event not reasonably
within the control of the Company, the Company is unable in whole
or in part to carry out any one or more of its agreements or
obligations contained herein, other than its payment obligations
under Section 4.2(i), (ii) and (iii) hereof and its obligations
under Sections 4.7, 6.1 and 9.1 hereof, the Company shall not be
deemed in default by reason of not carrying out said agreement or
agreements or performing said obligation or obligations during
the continuance of such inability. The Company agrees, however,
to use its best efforts to remedy with all reasonable dispatch
the cause or causes preventing it from carrying out its
agreements; provided, that the settlement of strikes, lockouts
and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required
to make settlement of strikes, lockouts and other industrial
disturbances by acceding to the demands of the opposing party or
parties when such course is, in the judgment of the Company,
unfavorable to the Company.
.3. Remedies on Default. (a) Upon the occurrence and
continuance of any Event of Default described in clause (b) of
Section 8.1 hereof, and further upon the condition that, in
accordance with the terms of the Indenture, the Bonds shall have
become immediately due and payable pursuant to any provision of
the Indenture, the payments required to be paid pursuant to
Section 4.2 hereof shall, without further action, become and be
immediately due and payable.
(a) Upon the occurrence and continuance of any Event of
Default, the Issuer with the prior consent of the Trustee, or the
Trustee, may take any action at law or in equity to collect the
payments then due and thereafter to become due hereunder, or to
enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement.
(b) Any amounts collected pursuant to action taken under
this Section shall be applied in accordance with the Indenture.
(c) In case any proceeding taken by the Issuer or the
Trustee on account of any Event of Default shall have been dis
continued or abandoned for any reason, or shall have been
determined adversely to the Issuer or the Trustee, then and in
every such case the Issuer and the Trustee shall be restored to
their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Issuer and the Trustee
shall continue as though no such proceeding had been taken.
.4. No Remedy Exclusive. No remedy conferred upon or
reserved to the Issuer by this Agreement is intended to be
exclusive of any other available 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 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 event of default
shall impair any such right or power or shall be construed to be
a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle the Issuer or the Trustee to exercise any remedy
reserved to it in this Article, it shall not be necessary to give
any notice, other than such notice as may be herein expressly
required, or as may be required by applicable law.
.5. Payment of Attorneys' Fees and Other Expenses. If
the Company shall be in default under any of the provisions of
this Agreement, and the Issuer shall employ attorneys or incur
other expenses for the collection of sums due and payable under
this Agreement, or for the enforcement of performance or
observance of any obligation or agreement on the part of the
Company contained in this Agreement, the Company agrees that it
will on demand therefor reimburse the reasonable fees of such
attorneys and such other reasonable expenses so incurred.
.6. Waiver of Breach. In the event that any agreement
contained herein shall be breached by either the Company or the
Issuer and such breach shall thereafter be waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach
hereunder. In view of the assignment of the Issuer's rights in
and under this Agreement to the Trustee under the Indenture, the
Issuer shall have no power to waive any default hereunder by the
Company without the consent of the Trustee. Any waiver of any
"Event of Default" under the Indenture and a rescission and
annulment of its consequences shall constitute a waiver of the
corresponding Event of Default hereunder and a rescission and
annulment of the consequences thereof.
<PAGE>
IX
OPTIONS AND OBLIGATIONS TO ACCELERATE PAYMENT
.1. Redemption of Bonds. The Issuer shall take the
actions required by the Indenture to discharge the lien thereof
through the redemption, or provision for payment or redemption,
of all Bonds then outstanding, or to effect the redemption, or
provision for payment or redemption, of less than all the Bonds
then outstanding, upon receipt by the Issuer and the Trustee from
the Company of a notice designating the principal amounts, series
and maturities of the Bonds to be redeemed, or for the payment or
redemption of which provision is to be made, and, in the case of
redemption of Bonds, or provision therefor, specifying the date
of redemption, which shall not be less than forty-five (45) days
(or such other period as may reasonably be agreed upon by the
Trustee and the Issuer with the consent of the Company) from the
date such notice is given, whether such notice shall be
unconditional, and the applicable redemption provision of the
Indenture. Unless otherwise stated therein or otherwise required
by the Indenture, such notice shall be revocable by the Company
at any time prior to the time at which the Trustee shall have
given notice to the holders of the Bonds to be redeemed.. The
Company shall furnish, as a prepayment of the sums due hereunder,
any moneys or Government Securities required by the Indenture to
be deposited with the Trustee or otherwise paid by the Issuer in
connection with a defeasance of Bonds pursuant to Article IX of
the Indenture or in connection with an unconditional call for
redemption of Bonds.
SECTION 9.2. Purchase of Bonds. The Company may at
any time, and from time to time, furnish moneys to the Trustee
accompanied by a notice directing the Trustee to apply such
moneys to the purchase in the open market of Bonds in the
principal amounts specified in such notice, and any Bonds so
purchased shall thereupon be canceled by the Trustee.
<PAGE>
X
MISCELLANEOUS
.1. Term of the Agreement. This Agreement shall be in
full force and effect from the date hereof until the right, title
and interest of the Trustee in and to the Trust Estate (as
defined in the Indenture) shall have ceased, terminated and
become void in accordance with Article IX of the Indenture and
until all payments required under this Agreement shall have been
made.
.2. Notices. Except as otherwise provided in this
Agreement, all notices, certificates or other communications
shall be sufficiently given and shall be deemed given when mailed
by registered or certified mail, postage prepaid, to the Issuer,
the Company or the Trustee. Copies of each notice, certificate
or other communication given hereunder by or to the Company shall
be mailed by registered or certified mail, postage prepaid, to
the Trustee; provided, however, that the effectiveness of any
such notice shall not be affected by the failure to send any such
copies. Notices, certificates or other communications shall be
sent to the following addresses:
Company: Gulf States Utilities Company
c/o Entergy Services, Inc.
639 Loyola Avenue
New Orleans, LA 70113
Attention: Treasurer
Issuer: Parish of West Feliciana
The Police Jury House
9795 Royal Street
St. Francisville, LA 70775
Attention: Secretary, Police Jury
Trustee: First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
Attention: Corporate Trust Department
Any of the foregoing may, by notice given hereunder, designate
any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
.3. Successors. This Agreement shall inure to the
benefit of the Issuer, the governing authority of the Issuer, its
members, officers or employees, the Company, the Trustee and the
holders from time to time of the Bonds, and shall be binding upon
the Issuer, the Company and their respective successors and
assigns.
.4. Amendments to Refunding Agreement. This Agreement
may not be effectively amended, changed, modified, altered or
terminated except in accordance with the provisions of the
Indenture, and no amendment to this Agreement shall be binding
upon either party hereto until such amendment is reduced to
writing and executed by both parties hereto.
.5. Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when so executed and
delivered, shall be an original; but such counterparts shall
together constitute but one and the same Agreement.
.6. Recording and Filing. The Company shall record
and file, or cause to be recorded and filed, all documents and
statements referred to in Section 5.4 of the Indenture.
.7. Photocopies and Reproductions. A photocopy or
other reproduction of this Agreement may be filed as a financing
statement pursuant to the Louisiana Commercial Laws - Secured
Transactions, although the signatures of the Company and the
Issuer on such reproduction are not original manual signatures.
.8. Severability. If any clause, provision or section
of this Agreement shall be held illegal or invalid by any court,
the invalidity of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections
hereof and this Agreement shall be construed and enforced as if
such illegal or invalid clause, provision or section had not been
contained herein. In case any agreement or obligation contained
in this Agreement shall be held to be in violation of law, then
such agreement or obligation shall be deemed to be the agreement
or obligation of the Issuer or the Company, as the case may be,
to the full extent permitted by law.
.9. Applicable Law. The laws of the State of
Louisiana shall govern the construction of this Agreement.
.10. Holidays. If the date for making any payment or
the last date for performance of any act or the exercising of any
right, as provided in this Indenture, shall be a legal holiday or
a day on which banking institutions in the city in which is
located the principal corporate trust office of the Trustee are
authorized by law to remain closed, such payment may be made or
act performed or right exercised on the next succeeding day not a
legal holiday or a day on which such banking institutions are
authorized by law to remain closed, with the same force and
effect as if done on the nominal date provided in this Agreement,
and no interest on the amount so payable shall accrue for the
period after such nominal date.
.11. Amounts Remaining in Bond Fund. Any amounts
remaining in the Bond Fund upon expiration or earlier termination
of this Agreement as herein provided, after payment in full of
the Bonds (or provision therefor) in accordance with the
Indenture, and all other costs and expenses to be paid by the
Company hereunder, all Administration Expenses and all amounts
owing the Issuer and the Trustee under this Agreement and the
Indenture, shall belong to and be paid to the Company, as an
overpayment of the payments.
.12. Company Approval of Indenture. The Indenture has
been submitted to the Company for examination, and the Company,
by execution of this Agreement, acknowledges and agrees that it
has participated in the drafting of the Indenture and agrees that
it has approved the Indenture and agrees that it is bound by and
shall have the rights set forth by the terms and conditions
thereof and covenants and agrees to perform all obligations
required of the Company pursuant to the terms of the Indenture.
.13. Binding Effect. This Agreement shall be binding
upon the parties hereto and upon their respective successors and
assigns, and the words "Issuer" and "Company" shall include the
parties hereto and their respective successors and assigns and
include any gender, singular and plural, and individuals,
partnerships or corporations.
.14. Captions and Headings. The captions or headings
in this Agreement are for convenience only and in no way define,
limit or describe the scope or intent of any provisions of this
Agreement.
.15. No Personal Liability. No covenant or agreement
contained in this Agreement shall be deemed to be the covenant or
agreement of any official, officer, agent, or employee of the
Issuer in his individual capacity, and no such person shall be
subject to any personal liability or accountability by reason of
the issuance thereof.
.16. Parties in Interest. This Agreement shall inure
to the benefit of and shall be binding upon the Issuer, the
Company and their respective successors and assigns, and no other
person, firm or corporation shall have any right, remedy or claim
under or by reason of this Agreement; provided, however, that any
monetary obligation of the Issuer created by or arising out of
this Agreement shall be payable solely out of the revenues
derived from this Agreement or the sale of the Bonds or income
earned on invested funds as provided in the Indenture and shall
not constitute, and no breach of this Agreement by the Issuer
shall impose, a pecuniary liability upon the Issuer or a charge
upon the Issuer's general credit or against its taxing powers.
.17. Subordination to Company Mortgage; Joint Ownership
Agreement; Waiver of Lien. Nothing in this Agreement or the
Indenture shall in any way prejudice (i) the Company Mortgage,
the lien thereof, the Joint Ownership Agreement or any of the
rights of the Company Mortgage Trustee, of any holder of First
Mortgage Bonds heretofore or hereafter issued thereunder, or any
takers or purchasers upon default thereunder or (ii) the Joint
Ownership Agreement or any of the rights of the parties
thereunder, or constitute or create a direct lien or encumbrance
on or other rights in or to the Plant or Facilities or any
leasehold or other estate therein.
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
PARISH OF WEST FELICIANA,
STATE OF LOUISIANA
By: _____________________________________
President
West Feliciana Parish Police Jury
ATTEST:
By: _______________________________ [SEAL]
Secretary
West Feliciana Parish Police Jury
GULF STATES UTILITIES COMPANY
By: _____________________________________
Vice President-Chief Accounting Officer
ATTEST:
By: _______________________________ [SEAL]
Assistant Secretary
Exhibit F-1(a)
December 20, 1994
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December 13, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
I, together with Reid & Priest, of New York, New York, have
acted as counsel to Gulf States Utilities Company (the
"Company") in connection with the issuance and sale by the
Parish of West Feliciana, State of Louisiana (the "Issuer"),
of $102,000,000 aggregate principal amount of its Pollution
Control Revenue Refunding Bonds (Gulf States Utilities
Company Project) Series 1994 bearing interest at the rate of
8% per annum (the "Bonds") to the several Underwriters under
a bond purchase agreement, dated December 13, 1994 (the "Bond
Purchase Agreement"), between said Issuer and the several
Underwriters named in Schedule I thereto. This opinion is
rendered to you at the request of the Company.
In my capacity as such counsel, I have either participated in
the preparation of or have examined the originals, or copies
duly certified or otherwise authenticated to my satisfaction,
of and am familiar with: (a) the Company's Restated Articles
of Incorporation, as amended (the "Charter"), and By-Laws, as
amended (the "By-Laws"); (b) the Trust Indenture, dated as of
December 1, 1994 (the "Indenture"), between the Issuer and
First National Bank of Commerce, as trustee (the "Trustee");
(c) the Refunding Agreement, dated as of December 1, 1994,
between the Issuer and the Company (the "Refunding
Agreement"), which, among other things, provides, in
consideration of the issuance of the Bonds by the Issuer, for
the making by the Company of certain payments to the Trustee,
for the account of the Issuer in an amount sufficient to pay
the principal of, premium, if any, and interest on the Bonds;
(d) the Letter of Representation, dated December 13, 1994
(the "Letter of Representation"), among the Company, the
Issuer and the several Underwriters; and (e) the proceedings
before the Securities and Exchange Commission (the
"Commission") under the Public Utility Holding Company Act of
1935, as amended (the "'35 Act"), relating to the proposed
transaction. I have also examined such records of the
Company, certificates of public officials and officers of the
Company, and other documents, instruments and agreements, and
have satisfied myself as to such other matters, as I have
deemed necessary for the purpose of rendering the opinions
set forth herein. I have also participated in the preparation
of, or have examined and am familiar with, the official
statement, dated December 13, 1994, including Appendix A
thereto and the documents incorporated by reference therein,
relating to the Bonds (the "Official Statement"). I have not
examined the Bonds, except a specimen thereof, and have
relied upon a certificate of the Trustee as to the execution
and authentication thereof.
In my examination, I have assumed the legal capacity of
natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to me as originals
and the conformity with the authentic originals of all
documents submitted to me as copies. In making my examination
of documents and instruments executed or to be executed by
persons other than the Company, I have assumed that each such
other person had the requisite power and authority to enter
into and perform fully its obligations thereunder, the due
authorization by each such other person for the execution,
delivery and performance thereof by such person, and the due
execution and delivery by or on behalf of such person of each
such document and instrument. In the case of any such other
person that is not a natural person, I have also assumed,
insofar as it is relevant to the opinions set forth below,
that each such other person is duly organized, validly
existing and in good standing under the laws of the
jurisdiction in which such other person was created, and is
duly qualified and in good standing in each other
jurisdiction where the failure to be so qualified could
reasonably be expected to have a material effect upon the
ability of such other person to execute, deliver and/or
perform its obligations under any such document or
instrument. I have further assumed that each document,
instrument, agreement, record and certificate reviewed by me
for purposes of rendering the opinions expressed below has
not been amended by oral agreement, conduct or course of
dealing of the parties thereto, although I have no knowledge
of any facts or circumstances that would give rise to such
amendment.
As to questions of fact material to the opinions expressed
herein, I have relied upon certificates and representations
of officers of the Company (including but not limited to
those contained in the Bond Purchase Agreement, the Refunding
Agreement, the Letter of Representation and certificates
delivered at the closing of the sale of the Bonds) and
appropriate public officials, without independent
verification of such matters except as otherwise described
herein.
Whenever my opinions herein with respect to the existence or
absence of facts are stated to be to my knowledge or
awareness, it is intended to signify that no information has
come to my attention or the attention of any other attorneys
acting for or on behalf of the Company or any of its
affiliates that have participated in the negotiation of the
transactions contemplated by the Bond Purchase Agreement, the
Indenture and the Refunding Agreement, the preparation of the
Official Statement or the preparation of this opinion letter
that would give me, or them, actual knowledge that would
contradict such opinions. However, except to the extent
necessary in order to give the opinions hereinafter
expressed, neither I nor they have undertaken any independent
investigation to determine the existence or absence of such
facts, and no inference as to knowledge of the existence or
absence of such facts should be assumed.
On the basis of the foregoing, having regard for such legal
considerations as I have deemed relevant, and subject to the
other limitations and qualifications set forth below in this
letter, I am of the opinion that:
1. The Company is a duly organized and validly existing
corporation under the laws of the State of Texas, has all
corporate power and authority necessary to conduct its
business as the same is described in the Official Statement,
is duly qualified to conduct such business in the States of
Texas and Louisiana, and has adequate, valid and subsisting
franchises, licenses and permits for the conduct of such
business in such States, such States being the only
jurisdictions in which the conduct of its business requires
qualification.
2. The Company had full power and authority to execute
the Refunding Agreement and the Letter of Representation; and
the Refunding Agreement and the Letter of Representation have
been duly authorized, executed and delivered and are valid
and legally binding obligations of the Company enforceable in
accordance with their respective terms.
3. Appropriate orders have been issued by the Commission
under the '35 Act authorizing the execution and delivery by
the Company of the Refunding Agreement and the Letter of
Representation, and such orders, to the best of my knowledge,
remain in effect; such orders are acceptable to the Company
and are sufficient for the execution and delivery by the
Company of the Refunding Agreement and the Letter of
Representation, and no other approval or consent of any other
governmental body (other than by the Issuer and in connection
or compliance with the provisions of the securities or "Blue
Sky" laws of any jurisdiction, including Texas and Louisiana,
as to which I express no opinion) is legally required for the
execution, delivery and performance by the Company of the
Refunding Agreement and the Letter of Representation.
4. The offer and sale of the Bonds do not require
registration of the Bonds under the Securities Act of 1933,
as amended, and the Indenture is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
5. The statements contained in the Official Statement
under the headings "The 1994 Bonds," "The Refunding
Agreement" and "The Indenture," insofar as such statements
summarize the provisions of the documents referred to
therein, accurately and fairly present the information
purported to be shown.
6. Neither the execution and delivery by the Company of
the Refunding Agreement and the Letter of Representation, nor
the consummation by the Company of the transactions therein
contemplated, nor the fulfillment by the Company of the
terms, conditions and provisions thereof:
(A) conflicts with, violates or results in a breach
of any law, administrative regulation or court decree
known to me, after having made due inquiry with respect
thereto, applicable to the Company;
(B) conflicts with, or results in the breach of,
any of the terms, conditions or provisions of the
Charter or By-Laws of the Company;
(C) conflicts with or results in the breach of any
of the terms, conditions or provisions of any mortgage,
indenture, agreement or instrument known to me, after
having made due inquiry with respect thereto, to which
the Company is a party or by which any of its properties
or assets is bound, or constitutes a default thereunder;
or
(D) will result in the creation or imposition of
any lien, charge or encumbrance upon any of the
properties or assets of the Company pursuant to the
terms of such agreement or instrument, except for the
rights of the Issuer created under the Refunding
Agreement;
in each case, except (b) above, that can reasonably be
expected to have a material adverse affect on the Company.
7. No recording, registration or filing by the Company
of the Refunding Agreement or any financing statement or
other instrument is necessary to perfect and preserve the
rights created thereunder as against third parties and
assigned to the Trustee by the Issuer, or is required for the
validity thereof.
8. In the course of my preparation of this opinion and
the preparation by the Company of the Official Statement, I
have conferred with certain officers, employees and
representatives of the Company and other counsel for the
Company, with your representatives and counsel, and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Official Statement. My examination of the
Official Statement and my discussions in the above-mentioned
conferences did not disclose any information that gives me
reason to believe that the Official Statement at the date
hereof (except the information contained therein under the
captions "The Issuer," "the 1994 Bonds-Book-Entry System,"
and "Tax Matters" and in Appendix B and other than the
financial statements and other financial and statistical data
included or incorporated by reference therein, as to all of
which I express no opinion) contains any untrue statement of
a material fact or omits to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
descriptions in Appendix A to the Official Statement at the
date hereof of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information shown.
The foregoing opinions are subject to the following comments,
limitations and qualifications:
(a) The opinion in paragraph 2 above is subject, as to
enforceability, (i) to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally; (ii) to possible
limitations upon the exercise of remedial or procedural
provisions contained in the documents and instruments
referred to in such paragraphs, which limitations do not, in
my opinion, make the remedies and procedures afforded thereby
(taken as a whole) inadequate for the practical realization
of the substantive benefits intended to be provided therein,
and which provisions do not in my opinion affect the validity
thereof; (iii) to the application of general principles of
equity, including but not limited to the right to have
specific performance of contract obligations, regardless of
whether considered in a proceeding in equity or at law; and
(iv) to principals of public policy that may limit rights to
indemnity under the Letter of Representation.
(b) The opinions rendered herein as to the legality,
validity, binding nature or enforceability of provisions of
documents and instruments that permit any person to take
actions or make determinations, or to require payments under
indemnity, acceleration and other provisions, are subject to
the assumption that such actions will be taken, such
determinations will be made, or such payments will be
required, on a reasonable basis and in good faith.
My opinions are expressed as of the date hereof, and I do not
assume any obligation to update or supplement them to reflect
any fact or circumstance that hereafter comes to my
attention, or any change in law that hereafter occurs.
I have examined the opinions of even date herewith rendered
to you by Reid & Priest and by Winthrop, Stimson Putnam &
Roberts and I concur in the conclusions expressed therein
insofar as they involve questions of Texas or Louisiana law.
I am a member of the Texas and Louisiana Bars and do not hold
myself out herein as an expert on the law of any other state.
As to all matters of New York law, I have relied, with your
approval, upon the opinion of even date herewith of Reid &
Priest, of New York, New York, counsel to the Company. In
rendering the opinion in paragraph 4, I have relied, with
your approval, upon an opinion of even date herewith of Foley
& Judell of New Orleans, Louisiana, in their capacity as Bond
Counsel, that, to the extent stated therein, interest on the
Bonds will be excluded from the gross income of the owners
thereof for federal income tax purposes.
The opinions set forth above are solely for the benefit of
the addressees hereof in connection with the Bond Purchase
Agreement and the transactions contemplated thereunder, and
may not be relied upon in any manner by any other person or
for any other purpose without my prior written consent, except
that Reid & Priest and Winthrop, Stimson, Putnam & Roberts may
rely upon this opinion as to matters of Louisiana and Texas
law in rendering their opinions of even date herewith.
Very truly yours,
s/s Laurence M. Hamric
Laurence M. Hamric
General Attorney - Corporate and Securities
Corporate and Securities
Entergy Services, Inc.
Exhibit F-2(a)
[Letterhead of Reid & Priest]
December 20, 1994
Honorable West Feliciana Parish Police Jury
St. Francisville, Louisiana
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
5th Floor
New York, New York 10020
As Representative of the Underwriters
named in the Bond Purchase Agreement,
dated December 13, 1994, with the Parish of
West Feliciana, State of Louisiana
Ladies and Gentlemen:
We, together with Laurence M. Hamric, Esq., have acted
as counsel for Gulf States Utilities Company (the "Company") in
connection with the issuance and sale by the Parish of West
Feliciana, State of Louisiana (the "Issuer") of $102,000,000
aggregate principal amount of its Pollution Control Revenue
Refunding Bonds (Gulf States Utilities Company Project) Series
1994, bearing interest at the rate of 8% per annum (the "Bonds"),
to the several Underwriters under the Bond Purchase Agreement
dated December 13, 1994, between said Issuer and the several
Underwriters. This opinion is rendered to you at the request of
the Company.
In our capacity as such counsel, we have either
participated in the preparation of, or have examined and are
familiar with: (a) the Company's Restated Articles of
Incorporation, as amended (the "Charter"), and By-Laws, as
amended; (b) the Trust Indenture dated as of December 1, 1994
(the "Indenture") between the Issuer and First National Bank of
Commerce, as Trustee (the "Trustee"); (c) the Refunding
Agreement, dated as of December 1, 1994 between the Issuer and
the Company (the "Refunding Agreement") which, among other
things, provides for, in consideration of the issuance of the
Bonds by the Issuer, the making by the Company of certain
payments to the Trustee, for the account of the Issuer, in an
amount sufficient to pay the principal of and premium, if any,
and interest on the Bonds; (d) the Letter of Representation,
dated December 13, 1994, among the Company, the Issuer and the
several Underwriters (the "Letter of Representation"); and (e)
the proceedings before the Securities and Exchange Commission
(the "SEC") under the Public Utility Holding Company Act of 1935,
as amended (the "1935 Act"), relating to the proposed
transaction. We have also examined such other documents and have
satisfied ourselves as to such other matters as we have deemed
necessary in order to render this opinion. We have also
participated in the preparation of, or have examined and are
familiar with, the official statement, dated December 13, 1994,
including Appendix A thereto and the documents incorporated by
reference therein, relating to the Bonds (the "Official
Statement"). We have not examined the Bonds, except a specimen
thereof, and we have relied upon a certificate of the Trustee as
to the execution and authentication thereof.
Subject to the foregoing and to the further exceptions
and qualifications set forth below, we are of the opinion that:
1. The Company has full power and authority to
execute the Refunding Agreement and the Letter of Representation;
and the Refunding Agreement and the Letter of Representation have
been duly authorized, executed and delivered by the Company and
(assuming they are valid and legally binding obligations of the
other parties thereto) are valid and legally binding obligations
of the Company enforceable against the Company in accordance with
their respective terms, except as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other laws
affecting the enforcement of creditors' rights and by general
equitable principles and except as rights to indemnity under the
Letter of Representation may be limited by principles of public
policy.
2. An appropriate order has been issued by the
SEC under the 1935 Act authorizing the execution and delivery by
the Company of the Refunding Agreement and the Letter of
Representation, and such order, to the best of our knowledge,
remains in effect; such order is sufficient for the execution and
delivery by the Company of the Refunding Agreement and the Letter
of Representation, and no other approval or consent of any
governmental body (other than in connection or compliance with
the provisions of the securities or "Blue Sky" laws of any
jurisdiction, as to which we express no opinion) is legally
required for the execution, delivery and performance by the
Company of the Refunding Agreement and the Letter of
Representation.
3. The offer and sale of the Bonds do not
require registration under the Securities Act of 1933, as amended
(the "1933 Act"), and the Indenture is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the
"1939 Act").
4. The statements contained in the Official
Statement under the headings "The 1994 Bonds", "The Refunding
Agreement" and "The Indenture", insofar as such statements
summarize the provisions of the documents referred to therein,
accurately and fairly present the information purported to be
shown.
5. Neither the execution and delivery by the
Company of the Refunding Agreement and the Letter of
Representation, nor the consummation by the Company of the
transactions therein contemplated, nor the fulfillment by the
Company of the terms, conditions and provisions thereof conflicts
with, or results in the breach of, any of the terms, conditions
or provisions of the Charter of the Company, the By-laws of the
Company, the Federal Power Act, the 1935 Act, the 1933 Act, the
Securities Exchange Act of 1934, as amended, the 1939 Act or any
financing agreement known to us, after having made due inquiry
with respect thereto, to which the Company is a party or by which
any of its properties or assets is bound.
While we have, for purposes of this opinion, examined
and are familiar with the Official Statement, we necessarily
assume the correctness and completeness of the statements made or
furnished by the Company and information included in the Official
Statement and take no responsibility therefor except as set forth
in paragraph 4 above. In the course of preparation of the
Official Statement, we had conferences with certain officers,
employees and representatives of the Company, with other counsel
for the Company, with Foley & Judell in their capacity as Bond
Counsel, with your representatives and counsel and with the
independent certified public accountants of the Company who
examined certain of the financial statements incorporated by
reference in the Official Statement. Our examination of the
Official Statement and our discussions in the above-mentioned
conferences did not disclose to us any information which gives us
reason to believe that, at the date hereof, the Official
Statement as amended or supplemented (except the information
contained therein under the captions "The Issuer", "The 1994
Bonds-Book-Entry System" and "Tax Matters" and in Appendix B and
other than the financial statements and other financial and
statistical data included, or incorporated by reference, therein,
as to all of which we express no opinion herein) contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state. As to
all matters of Texas and Louisiana law, we have, with your
approval, relied upon the opinion of even date herewith of
Laurence M. Hamric, Esq. We have not examined into and are not
passing upon matters relating to the incorporation of the
Company. In rendering the opinion in paragraph 3, we have, with
your approval, relied upon an opinion of even date herewith of
Foley & Judell of New Orleans, Louisiana, in their capacity as
Bond Counsel, that, to the extent stated therein, interest on the
Bonds is excluded from the gross income of the owners thereof for
federal income tax purposes.
The opinion set forth above is solely for the benefit
of the addressees of this letter in connection with the Bond
Purchase Agreement and the transactions contemplated thereunder,
and may not be relied upon in any manner by any other person or
for any other purpose without our prior written consent, except
that Laurence M. Hamric, Esq., may rely upon this opinion as to
all matters of New York law in rendering his opinion of even date
herewith.
Very truly yours,
/s/ Reid & Priest
REID & PRIEST
